Party in breach of “unless” order due to strict application of deemed service provisions

The High Court has held that a party was in breach of an “unless” order requiring service of a disclosure list by a particular date, despite the opponent’s solicitors having received the list by that date, as a result of the strict application of the CPR deemed service provisions Joyce v West Bus Coach Services Limited [2012] EWHC 404 (QB). As a result, the claim was automatically struck out from the date of the breach, although it was subsequently reinstated when the court granted the claimant’s application for relief from the sanction of striking out. The court also held (rather unsurprisingly) that, in the period following breach of the unless order and before the grant of relief, the claimant could not validly accept a Part 36 offer to settle the claim which had previously been made by the defendant.

Practical points emerging from the decision include:

  • The dates for deemed service apply strictly to documents served in the course of proceedings, not just the claim form. A document will be deemed served on the date provided in the rules, regardless of whether it is in fact received sooner (or later).
  • Where a party is required to serve a document by a particular date pursuant to an unless order, a failure to have regard to the deemed service rules could mean that the party’s claim (or defence) is automatically struck out, though the court has a discretion to reinstate it on the defaulting party’s application for relief from sanction.
  • If an opponent’s claim (or defence) has been struck out as a result of breach of an unless order and they have applied for relief from sanction, consider withdrawing or varying any Part 36 offers you have previously made. If relief is granted, any Part 36 offers will be reactivated.


Following various procedural failings, the court made an “unless” order which required the claimant to serve its list of disclosure documents by 10 September 2010, failing which the claim would be struck out without further order and the trial date vacated.

The claimant’s list was sent to the defendant’s solicitors by first class post on Thursday 9 September 2010 and was received on Friday 10 September (the deadline stated in the unless order). Nevertheless, the court held that the list had not been served in time. CPR 6.26 sets out dates of deemed service for documents other than a claim form, depending on the method of service used. For first class post, the deemed date of service is the second day after posting (or, if that is not a business day, the next business day). Accordingly, the list was deemed served on Monday 13 September – three days late.

The fact that the list was in fact received by the defendant’s solicitors within the time limit was not relevant. The court referred to the case of Godwin v Swindon Borough Council [2001] EWCA Civ 1478, in which the Court of Appeal held that a claim form was not served in time even though it was in fact received by the defendant before expiry of the relevant time limit. In the present case, the court stated that the approach in Godwin was not limited to claim forms. Therefore the list of documents was served out of time and the claimant was in breach of the unless order. The effect of that breach was that the claimant’s statement of case was automatically struck out with effect from 10 September.

Part 36 offers

On 17 September the claimant purported to accept a Part 36 offer to settle which the defendant had made a year beforehand. It argued that since the defendant had not taken formal steps to obtain judgment as a result of the striking out, the claim remained in existence and the Part 36 offer could still be accepted as it had not been withdrawn by the defendant (Gibbon v Manchester City Council [2010] EWCA Civ 726 – see post).

The court rejected the claimant’s arguments, finding that a Part 36 offer could not be accepted once there was in substance no claim left to be pursued. This was the effect of the claimant’s breach of the unless order, and it did not matter whether the defendant had taken the purely formal step of requesting judgment to be entered.

The fact that a party might subsequently be granted relief under CPR 3.9 from the sanction of striking out did not mean that the claim remained in existence pending determination of an application for relief. If the court granted the application, the effect would be to reinstate the claim and reactivate the Part 36 offer (unless it had already been withdrawn).

In this case the court upheld the judge’s decision to grant relief from sanction, as the breaches of the unless order were minor (service of the list was three days late “on the strict application” of the rules, but no real prejudice was caused because it was in fact received in time), liability had been admitted by the defendant, and it was still possible to have a fair trial of the quantum issue.

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