Dispensing with Service

Infantino v Maclean ([2001] 3 All ER 802)

The claim form and the particulars of claim were sent to the wrong document exchange address and as a result the date of deemed service was a day later than required by rule 7.5. Rule 7.6 provides that an application to extend the time for service must be made within the prescribed four-month period or that the claimant must have taken all reasonable steps to serve the claim form and has acted promptly in making the application. The claimant could not be said to have taken all reasonable steps to serve the form and so could not satisfy the requirements of rule 7.6. In an extremely complicated medical negligence case, the claimant’s solicitors had gone well beyond the requirements of the clinical negligence pre-action protocol; they had provided the fullest detail of the claim and twice extended the time for the defendant’s surgeon’s response in order to assist him and his experts. Nevertheless the claimant could not seek relief by virtue of rule 3.9 (which provides that the court could consider applications for relief from sanctions imposed for failure to comply with rules or court orders), nor by the general words of rule 3.10 (which provides that the court may make an order remedying an error of procedure). An ingenious argument was advanced on the basis of the CPR Glossary’s definition of service being ‘steps required by rules of court to bring documents used in court proceedings to a person’s attention’. This contention also failed because ‘the claim form’ in Rule 7.6(3)(b) could only mean the claim form which was actually served.