Postal service of a claim form by the court in disregard of the claimant’s request to return the claim form to him so that he could serve it personally, in breach of CPR r 6.4(1)(b), was an “error of procedure”, within rule 3.10, and so did not invalidate service.

The Court of Appeal so stated in allowing the appeal of the claimant, Isaac Stoute (a minor by his litigation friend Michael Stoute), from the decision of Judge Mitchell sitting in the Central London Civil Justice Centre who had allowed the appeal of the defendant, LT Operations Ltd, trading as the Lawn Tennis Association, from the decision of District Judge Avent who had held that the service of the claim form by the court on the defendant by post in disregard of the claimant’s notification that he wished to effect service himself was valid.

CPR r 3.10 provides: “Where there has been an error of procedure such as a failure to comply with a rule or practice direction— (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.”

CPR r 6.4(1) provides: “The court will serve the claim form except where— … (b) the claimant notifies the court that the claimant wishes to serve it …”

UNDERHILL LJ said that the discussion below, and to some extent also before the Court of Appeal, had been conducted in terms of whether the requirements of CPR r 6.4(1) about who was to effect service were mandatory—so that service by the wrong person was a nullity—or merely directory. That did not seem to be the best starting-point. The CPR contained an express provision dealing with the consequences of “errors of procedure”, namely rule 3.10; and it was necessary to begin by asking whether that rule applied in the circumstances of the case. That might still involve a consideration of whether the provisions of rule 6.4(1) were of such a nature that rule 3.10 could not apply, but to start there put the focus in the wrong place. On that basis the principal question was whether the service of the claim form by the court, in disregard of the claimant’s notification that he wished to effect service himself, constituted “an error of procedure” within the meaning of rule 3.10. In His Lordship’s view it did. What happened in this case seemed to fall comfortably within the natural meaning of that phrase; but if necessary his Lordship would refer to the guidance given by the Court of Appeal in Steele v Mooney [2005] 1 WLR 2819, where it was said that “a broad common sense approach” should be taken to the scope of rule 3.10 (see per Dyson LJ, at para 22).

Counsel for the defendant had submitted that the term “error of procedure” could not be applied to an act which was a nullity and that service by the court in disregard of the exceptions identified at rule 6.4(1)(a)–(c) had to be regarded as such an act. His Lordship could not accept that submission. There might be cases of what might, on a literal approach, be describable as “errors of procedure” but which were nevertheless of such a nature that they were evidently irremediable and could not have been intended to fall within the scope of rule 3.10. But there was no reason why service in breach of rule 6.4(1) should be regarded in that way—or, to put it more precisely, why it should be inferred that the rule-maker intended that rule 3.10 should be inapplicable in such a case. There was nothing in the language to compel any such conclusion. More substantially, there was nothing contrary to the fundamental scheme of the rules, or radically unfair to the parties, in allowing such service to stand subject to any contrary order under rule 3.10(a). There was nothing wrong in principle about service being effected by the court: on the contrary, that was the primary route for which the rules provided. The claim form would of course come formally to the attention of the defendant, which was the essential purpose of the rules about service. No difficulty would be created for the defendant, who would not at the time of service know that anything irregular had occurred and would simply proceed to respond in the usual way. As for the claimant, in some cases his reasons for wanting to effect service himself might not have been substantial, and the court’s error would make no real difference to him and he would be happy to overlook it. No doubt there would also be cases where the error did deprive him of a real advantage, most obviously if he had wanted to defer service for the time being, or perhaps retain the possibility of not proceeding at all. But the possibility of prejudice of this kind would not be a reason for treating premature service by the court as a nullity. Accordingly, service by the court of the claimant’s claim form had constituted effective service.

TOMLINSON and RIMER LJJ agreed.