CA-2025-000771 - [2025] EWCA Civ 1347

CPR 7.5 provides as follows:

“7.5

(1)

Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Method of service	Step required
First class post, document exchange or other service which provides for delivery on the next business day	Posting, leaving with, delivering to or collection by the relevant service provider
Delivery of the document to or leaving it at the relevant place	Delivering to or leaving the document at the relevant place
Personal service under rule 6.5	Completing the relevant step required by rule 6.5(3)
Electronic method	Sending the e-mail or other electronic transmission

(2)

Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.”

The claimants’ argument is that the court should infer as a matter of fact that the claim form was left out for collection by the DX service before 4pm, and that this therefore constituted compliance with r.7.5. In my view, that argument fails both on the facts, and as a matter of law.

It is necessary first to focus on the claimants’ core obligation in April 2023. By reason of the order of November 2022, that was to file and serve the claim form and the particulars of claim by 4pm on 21 April 2023. During the appeal hearing, Mr Sawtell confirmed that neither the claim form nor the particulars of claim were filed with the court until sometime after that date. Moreover, the document that was the subject of so much activity at the EDS office on the afternoon of 21 April 2023 was just the claim form, the response pack and so on. It did not include the particulars of claim, which were not provided until May 2023. Thus, on the afternoon of 21 April 2023, the claimants did not comply - and plainly had no intention of complying - with the court order of November 2022, which required the filing and service of both the claim form and the particulars of claim.

That conduct seems to be the result of a belief on the part of EDS that the defendants would agree to yet another extension of time. It is unclear where that belief originated. At all events, it was only at about 3.22pm on the afternoon of 21 April 2023 that EDS realised that a further agreed extension would not be forthcoming. In those circumstances, they were obliged to do what they could to comply with the order. That was limited to an attempt to serve the claim form by 4pm.

This is important when one comes to consider the factual evidence. As noted in paragraphs 8, 9 and 12 above, the only evidence concerning service by DX was that the claim form was left at the EDS reception for collection by the DX courier which would have taken place on the usual basis after office hours (i.e. after 4pm). There was no evidence as to when the claim form was printed out and left for collection by the DX, although we do know that that would have been after 3.40pm.

Mr Sawtell asked this court to infer that the documents were left out for collection by 4pm. But there is no basis for such an inference, and I consider that the judge was right to reject it. In my view, the evidence points firmly the other way. The claim form and other documents were the subject of the frantic faxing between around 3.40pm and at least 4.03pm. Unless there were copies, if the claim form was still being faxed after 4pm, it could not have been simultaneously out for collection by the DX. The evidence does not say that there were copies: again, the only obvious inference from the evidence is that there were not. Accordingly, the claimants have failed to discharge the burden of showing that, as a matter of fact, they took the necessary steps for service by 4pm.

But even if that were wrong, and it could be shown that the claim form was left out for collection by the DX before 4pm, I would still reject the submission that the claimants had complied with r.7.5 as a matter of law. There are a number of reasons for that.

First, the document must be left with the DX service. In my view, that requires an act of transmission by the claimants: in essence, the passing on of the document from the solicitor into the possession of the DX service. You do not leave a document with the DX by having it in your reception for their collection at some point in the future. The concept of A leaving a document with the DX service implies that the document has left A and gone into the possession of the DX service. It would be a nonsense to suggest that a document that might sit in A’s reception for 24, 48 or 72 hours (because 21 April 2023 was a Friday) had somehow been validly served on B by 4pm on that Friday.

Secondly, as my Lord, Lord Justice Phillips, pointed out during the course of argument, each of the methods of service identified in r.7.5 - posting, leaving with, delivering to or collection by the relevant service provider - constitutes not only a positive act, but also an irrevocable one. Once the document has been posted/left with/delivered to/collected by the DX, it cannot be taken back. It cannot be amended. By contrast, documents left on the receptionist’s desk can always be taken back and further amended. That is not within even the widest concept of ‘service’.

Thirdly, Mr Sawtell’s argument relies on the proposition that a document which is ‘left for collection’ fits within one of the options in r.7.5. In my view, it does not. It is actually based on an elision between two different phrases in r.7.5: ‘left with’ the DX and ‘collected by’ the DX. Leaving a document out for collection by the DX is not therefore something which could constitute proper service under r.7.5 in any event.

Fourthly, the claimant’s argument misses the whole point as to why service by way of DX is an approved method of service. That is because, as with first class post, it provides for delivery on the next business day. Accordingly, in order to serve these documents on Bellway by DX by 4pm on 21 April 2023 (as they were required to do by the terms of the November order), EDS had to leave them with the DX on 20 April 2023, so as to comply with r.7.5. Otherwise, on any view, service was going to be late and outside the terms of the November order.

In all those circumstances, therefore, I would reject the cross-appeal. That then brings us to the appeal.