Frequently we see in disrepair claims that the tenant lawyers do not bother to ascertain the identity of the correct landlord and issue proceedings against the wrong company. This is especially true where the social landlord is a large organisation with a complex corporate structure. When this happens, it invariably requires the tenant lawyers to apply to amend their pleadings to direct them to the correct corporate body.
However, Civil Procedure Rule (CPR) 7.5 requires a claim form, which is to be served within the UK, to be served by one of the permitted methods “before 12:00am midnight on the calendar day four months after the date of issue of the claim form.” Time can easily run out if the claimant needs to apply to have the claim form amended as a result of a failure to issue against the correct company in the first place.
In the case of Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors  EWCA Civ 14 the Court of Appeal had to consider whether service of an amended claim form, which was unsealed, was good service and if not whether this could be rectified by CPR 3.10. While this case relates to a competition claim, somewhat far removed from a social housing disrepair case, the principles of service and the application of the CPR apply universally.
There were various claims brought against the respondents alleging breaches of competition law between February 2017 and January 2020. In the background of this litigation was the ongoing case of Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC  case, it was agreed between the parties that it was prudent to await the outcome of the Sainsbury’s case before the claims in this particular case continued. The appellant’s solicitors sent copies of the issued claims, not the original, for information and invited an extension of time for service. This extension was agreed and then further extended by agreement to expire one month after judgement on the Sainsbury’s case was given.
Judgment in the Sainsbury’s case was given on 17 June 2020, and so the deadline for service of the sealed claim form was a month later, i.e. 17 July 2020. The claim forms were amended, to remove unnecessary allegations, and arrangements made for service via email.
On 17 July 2020, the appellant’s solicitors sent unsealed versions of the claim form as it appeared as though sealed versions would not be available due to delays with the court’s online filing system. The claim forms were however deemed sealed by the Court on 17 July 2020.
The sealed amended claim forms were then filed a week or so after the deadline and the defendants made applications that the court had no jurisdiction to hear the case as the claim forms were served out of time.
At first instance the judge held that the claim forms had not been served as without the original court seal the documents were not claim forms and he declined to grant the relief sought by the appellant.
The Court of Appeal agreed dismissing the application along the same lines.
For quite a complex set of facts the judgement is clear, in order for a claim form to be valid it has to sealed by the court prior to service. An unsealed claim form is not a claim form at all. The claim form is the document issued by the court on which the court seal is placed and without such a document being served upon the defendant, the court’s jurisdiction is not invoked and the court cannot hear or determine the case.
When our social housing clients are claimants, such as in possession or injunction claims, the claim form will be served on the defendant well within the four-month deadline provided by CPR 7.5. However, it is when proceedings are being issued against social landlords that a careful examination of the claim form and particulars of claim should be made. Very often, the ‘no win, no fee’ fraternity of tenant lawyers will not bother to ascertain the actual identity of their clients’ landlord and will issue proceedings against a non-existent group name, or a different company within the group structure. By the time this error has been corrected, the four-month deadline to serve a sealed claim form will have often passed. The Court of Appeal has made it clear that only a claim form which bears the original court seal will do, photocopies or unsealed documents are not good enough. Birketts have made numerous successful strike out applications on behalf of our clients served with unsealed or photocopy paperwork in these circumstances. Costs orders against the claimant are sought and these costs orders provide a shield should a fresh claim be subsequently attempted.
How can Birketts help?
Birketts have a specialist Housing Management Team to assist our clients in staying ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, building safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for Registered Providers and local authorities and offer a truly ‘one stop shop’ for the issues facing the sector.
If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2022.