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To make an application or not to make an application - that is the question?

A Claimants solicitors have recently issued an employers liability claim via the DCP. They also served the Claim Form by post in accordance with the standard Part 7 procedure. The Defendant in this claim was The Crown and unfortunately in accordance with Practice Direction 51ZB the DCP cannot be used. The Defendants solicitor duly noted this breach and refused to file an Acknowledgment of Service. Judgment was entered for the Claimant. The Defendant promptly made an application to the Court for judgment to be set aside and for the claim to be struck out on the basis the Court had no jurisdiction to hear the claim and/or for an abuse of process.

The Claimants solicitors agreed judgment could be set aside if the claim was allowed to continue as if it had been issued in accordance with the usual Part 7 procedure however the Defendant refused to accept this compromise and continued to pursue their application.

Did the Court have jurisdiction to hear the claim in accordance with CPR 11?

The fatal error made by the Defendant here is their failure to file and serve an Acknowledgment of Service. In accordance with CPR 11 where a Defendant wishes to dispute the Courts jurisdiction they must file and serve the Acknowledgment of Service in the usual way. This must then be followed by an application to the Court to dispute jurisdiction within the next 14 days.

In this case the Judge ruled that even if he had granted the Defendant relief from sanctions that the Court did not have or should not exercise their jurisdiction to deal with the matter.

Was the use of the DCP an abuse of process?

The Judge considered the definition of 'abuse of process' taken from the judgment of Lord Bingham in the case of Attorney General v Barker [2000] 1 FLR 759 that the use of the court process must be in a way "significantly different from the ordinary and proper use of the court process." It was submitted that the error made by the Claimant in submitting a claim against the Crown in the DCP was a 'misuse' of process and not an 'abuse,' further even if the Court found that such behaviour was an abuse the claim should not be struck out in any event as the impact was so minimal. In the case of Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4 WLR 110 despite the Claimant's failure to comply with the Pre Action Protocol being found to amount to an abuse of process the Court of Appeal found the decision to strike it out was disproportionate.

In his judgment the Judge held that in this case the error made by the Claimant regarding issuing incorrectly in the DCP was a misuse of process which did not amount to an abuse of process. It had not been prejudicial to issue the claim form online and it would not serve either party for the Court to strike the claim form out. Instead, the Court made provision under CPR 3.10 for the claim to continue as if it had been issued and served in the usual way in accordance with Part 7.

Conclusion

The Defendant was ordered to pay the Claimants fixed costs of the hearing on the basis that it could have been avoided had they consented to the Claimants offer for judgment to be set aside and for the claim to proceed under Part 7. In affect following the outcome of the application the Defendant was in no better position than they would have been.

The DCP remains relatively new. In practice we are now starting to see the number of claims issued via the DCP steadily increase and by its very nature of being a new process mistakes are also being made. This case highlights the importance of parties taking a pragmatic approach when dealing with a mistake made by an opponent particularly where it can be easily rectified in accordance with CPR 3.10. It is not in our clients best interests to make opportunistic applications or to take an inappropriate stance.

For more information contact Tim Smith in our Insurance department via email or phone on 0113 3862687. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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