Service by fax needs consent

The failure to obtain a party’s prior written confirmation that service of a claim form by fax was acceptable is more than a minor departure from a permitted method of service. The Court of Appeal reversed the decision of the judge who had made an Order under 6.9 dispensing with service of the claim form. The court said:

1. It required an exceptional case before the court would exercise its powers to dispense with service under Rule 6.9, where the time limit for service of the claim form in Rule 7.5(2) had expired before service was effected. 
2. The power was unlikely to be exercised save where the claimant had either made an ineffective attempt in time to be served by one of the methods permitted by Rule 6.2, or had served in time in a manner that involved a minor departure from one of those permitted methods of service. 
3. However it was not possible to give an exhaustive guide to the circumstances of which it would be right to dispense with service. For the reasons given in previous cases of Vinos, Godwin and Anderton, the time limits for service of the claim form were to be strictly observed in extensions and other dispensations were to be sparingly given.


Kuenyehia and Others -v- International Hospitals Group Limited. Court of Appeal, 17 February 2006, Times Law Report.

Offer not available after hearing

We recently reported the Court of Appeal decision in Hawley, the vicarious liability case involving an off-duty firefighter who was assaulted by a bouncer at a club. In a further piece of litigation arising out of the same case, there was an argument between the defendants about an offer to settle court proceedings under Part 36. The court held that an offer to settle under Part 36 carried an implied term that it would not be available for acceptance after the hearing ended and the court had reserved judgment. Lord


Justice Brooke said that it was well known that the risks inherent in litigation might alter significantly as soon as a hearing started. There would be a strong case for saying that there was an implied term in the offer that it was only open for acceptance until the hearing commenced. There was no doubt that an offer carried an implied term that it would not be available for acceptance after the hearing ended as, at that stage, the risks might have altered significantly.

Hawley -v- Lumimar Leisure Plc and Others. Court of Appeal, 14 February 2006, Times Law Reports.

Extensions of time for service

The Court of Appeal has recently considered four cases involving issues of service of claim forms on firms of solicitors nominated by an insurance company, applications without notice for extensions of time for service, and reasons for extending time. It is a particularly complex and lengthy Judgment dealing with several issues.


Collier -v- Williams, and Others. Court of Appeal, 3 February 2006, Times Law Reports.