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Fisken v Carl SC-2020-APP-000829

Philip Shepherd QC acted for Mr Bernard Carl (“BC”) on his successful application to set aside a Default Costs Certificate (“DCC”) on the basis that the detailed assessment proceedings purportedly commenced under CPR 47.6 had never been served on BC. This decision emphasises that service by email of any originating process will not amount to good service under CPR 6.20 unless the party being served or the solicitor on the record has indicated in writing that service by email will be accepted.

 

Significantly, applying Lord Sumption’s judgment in Barton v Wright Hassall LLP [2018] UKSC 12 (21 February 2018) the Court refused to make a retrospective order under CPR 3.10  for service by alternative means where all that the claimant had done was to attempt service in breach of the Rules. The mere fact that the originating process in question has come to the notice of the other party is insufficient.  The Court applied the decision of Mr Justice Foxton in Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205 (QB) that service by email in that case to the wrong email address could not be effective service. CPR 3.10, as a provision of general application, must yield to the  more specific provisions of the CPR as to service. CPR 3.10 does not operate to validate service that does not comply with the rules. Nor was it be right, in all the circumstances, to make an order under CPR 6.27 retrospectively validating service upon the wrong person by the wrong means. The Claimant’s application for retrospective validation was refused. The Claimant was not entitled to the Default Costs Certificate, which was set aside under CPR 47.12(1).

 

This decision also shows that unless and until a solicitor on the record files a Notice of Change that solicitor will be continue to be the only address for service even if it has stated that it no longer acts for the party concerned