The court’s power in CPR 6.15 to allow service by an alternative means can be used retrospectively to validate steps taken to serve proceedings on foreign defendants where those steps fall short of ‘good service’ under the CPR. The power is of particular significance in common law (rather than Brussels / Lugano cases) because the act of service founds jurisdiction.
This post considers two recent cases on CPR 6.15: Barton v Wright Hassall LLP  EWCA Civ 177 and Abbott v Econowall UK Ltd  EWHC 660 (IPEC). They demonstrate that the court will adopt a strict approach to retrospective cure of defective service although a defendant’s conduct may form part of the reason to permit cure.
Practitioners will recall that the rule in CPR 6.15 (set out below) was amended following the decision in Elmes v Hygrade Food Products plc  EWCA Civ 121. The amendment was to enable the court to make an order retrospectively curing defective service of proceedings in order to establish jurisdiction over a defendant, typically after the claim form has expired.
The decisions in Barton v Wright Hassall and Abbott v Econowall, handed down on the same day, helpfully consider the narrow circumstances in which the court will accede to such an application. Each case concerns service within England and Wales, but the principles equally apply to service outside the jurisdiction. This post first covers the Barton case and then the Abbott case.
CPR 6.15 provides:
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
In Barton, the claimant was a litigant in person who wished to bring professional negligence proceedings against the defendant law firm. In broad outline, the sequence of events was as follows:
The claimant applied, among other things, for an order under CPR 6.15 declaring the steps he had taken to serve the claim form on BLM were valid service. He was unsuccessful before the District Judge and on appeal to the High Court.
In the Court of Appeal, the claimant was again unsuccessful.
Floyd LJ (with whom Moylan J and Black LJ agreed), provided an authoritative and helpful summary of the principles governing CPR 6.15 drawn from the leading authorities, as follows:
“19. I would summarise the effect of these authorities in the following way:
i) In deciding whether steps should be validated under the rule the court should simply ask itself whether there is “good reason” to do so: (Abela ).
ii) A critical factor in deciding whether to validate service under the rule is that the document has come to the attention of the party intended to be served: (Abela ). That is the whole purpose of service: (Abela , ).
iii) However it is not by itself sufficient that the document was brought to the attention of the opposite party: something more must be present before there is a “good reason”: (Abela ).
iv) In deciding whether there is a “good reason”, there will inevitably be a focus on the reason why the claim form cannot or could not be served within the period of its validity, although this is by no means the only area of inquiry: (Abela , Kaki ).
v) The conduct of the claimant and of the defendant is relevant: (Kaki ). It is not necessary, however, for the claimant to show that he has taken all the steps he could have reasonably taken to effect service by the proper method: (Power ).
vi) The mere fact that one party is a litigant in person cannot on its own amount to a good reason, although it may have some relevance at the margins: (Hysaj -; Nata Lee ).
vii) If one party or the other is playing technical games, this will count against him: (Abela ).
viii) An appellate court will only interfere with the judge’s evaluation of the various factors in the assessment of whether there is a good reason if he has erred in principle or was wrong in reaching the conclusion which he did: (Abela ).
On the facts, the Court of Appeal held that:
As to the Judge’s view of the salient factors in the HIgh Court (summarised in the Court of Appeal’s judgment):
The Abbott case
The judgment of Judge Hacon in the Intellectual Property Enterprise Court in Abbott was handed down the same day as Barton, to which it does not refer.
This case concerned proceedings against several defendants for breach of patents relating to ‘snap-in inserts’ made from resilient metal used in display panels for shops. In brief outline:
The claimant applied under CPR 6.15 for a ruling that service of the photocopy of the (unsigned) claim form on 6 July 2015, just after issue, was good service. The court’s decision, which merits a full reading, is interesting for two reasons:
First, the Judge considered, relying on Bethell Construction Ltd v Deloitte and Touche  EWCA Civ 1321, that if an applicant seeks under CPR 6.15 to validate defective service of a claim form after the claim form has expired, he does not in addition need to satisfy the court of the strict criteria that would apply under CPR 7.6(3) to an application to extend time for service of the claim form after its expiry (see paras 28 and 48).
In relation to defendants out of the jurisdiction, this means that an applicant would not need to show that he has taken “all reasonable steps” to comply with the rules on service within 6 months from issue of the claim form but has been “unable to do so”, or that he has “acted promptly in making the application”. This might be considered surprising, albeit logically these factors will still feed into the court’s discretion in determining whether there is a “good reason” for making an order under CPR 6.15.
Second, notwithstanding the failure to comply with the rules and the strict approach adopted in Abela, the Judge acceded to the application on the basis that the defendant’s solicitors had not complied with the overriding objective, because the solicitor, having doubts as to whether the other side had understood the extension offer, failed to clarify the position with the other side (see paras 36 – 42 and 52 – 54).
The take-away lessons from Barton and Abbott are that whilst the courts adopt a strict approach to the application of CPR 6.15, and whilst defendants are under no obligation to assist a claimant, defendants and their representatives must be careful to ensure that the claimant is not suffering from a misapprehension which the defendants or their representatives have caused. If defendants fail to do so, they risk being in breach of the overriding objective. Such a breach may be a good reason for making an order under CPR 6.15.
 Abela v Baadarani  1 WLR 2043 (SC), Power v Meloy Robinson  EWCA Civ 898, Nata Lee Ltd v Abid  EWCA Civ 1652, Kaki v National Private Air Transport Co  EWCA Civ Civ 731, and R (Hyasi) v Secretary of State for the Home Department  1 WLR 2472 (CA).
 This appears to be inconsistent with the Court of Appeal’s decision in Bethell Construction Limited v Deloitte and Touche  EWCA Civ 1321 (at para 25), cited in Abbott (at para 26).