10th October, 2017

Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270 - Note

By Christopher Kennedy Q.C


1. This case, in which I represented the First Defendant, illustrates the truth that points about service will always be with us.  They have proved immune to extinction by judgment.

The facts

2. On 13 June 2009 the Claimant, who was then nearly 14, climbed an oak tree near Chichester Harbour and fell from it.  The fall rendered her a paraplegic.  Her case was that the tree was in a dangerous state and not fit to be climbed.  She brought proceedings against three Defendants each of whom, she alleged, had a responsibility for the state of the tree at the time. 

3. The Claimant did not issue proceedings until 1 July 2016, just before her 21st birthday.  The proceedings were initially against the First Defendant alone, but they were amended shortly after issue to include the Second and Third Defendants.  She applied for and obtained an extension, the terms of which were unaltered from the draft submitted by her solicitor ‘The date for service of the Claim Form is extended to 17th January 2017.’   The claim form was posted on 17 January 2017 and received on 18 January 2017.  That meant that its deemed date of service pursuant to CPR 6.14 was one day later, 19 January 2017.  The question for the judge, Master McCloud, was whether what had been done constituted valid service, notwithstanding that the deemed date was outside the period granted by the extension.  This was one of a series of three cases heard by the Master which raised similar issues.

4. The point taken by the Defendants required the Master to consider the inter-relationship between CPR 7.5, which contains for the rules for taking the relevant step for service of a claim form and CPR 6.14 which governs the deemed date on which service occurs.  The Defendants argued that, on its true construction ,the order had extended the time during which service must take place, not the time to take the relevant step.  For them to have been served by 17 January 2017 the relevant steps would have had to have been taken on or before 13 January 2017.

The judgment

5. The Master considered previous High Court authorities, in particular  Brightside Group Ltd v RSM UK Audit LLP [2017] EWHC 6 and T & L Sugars v Tate and Lyle Industries [2014] EWHC 1066, which appeared to point her in different directions.  Brightside favoured the Defendants and T&L favoured the Claimant.  The Master resolved this conflict first by deciding that the observations in Brightside were obiter and second by discerning that, when carefully read, they were not of application to the precise question she had to consider.  Nonetheless she found Brightside ‘challenging in some respects’.  Whilst the Master also considered the decision T&L to be obiter, she preferred its reasoning which she found was more in accordance with a purposive approach to the rules in comparison with the Defendant’s ‘literal’ construction of them.

6. The Master ultimately decided that the question which determined whether the claim form had been validly served was whether the relevant step had been taken not whether service had taken place.  It is plain from her judgment that she regarded this as the outcome which gave the rules more 'functionality'.

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