Healthcare Compensation - Personal Injury Claim

Susan Horn V Dorset Healthcare Nhs Trust (2004)

CC (Southampton) (Judge Hughes QC) 4/5/2004

Civil Procedure
Addresses For Service : Claim Forms : Solicitors : Instructions : Authority : Nominated Solicitors : Invalid Service Of Claim Form : R.6.5 Civil Procedure Rules 1998

There was no requirement under CPR r.6.5 that solicitors acting for a defendant had to confirm to the claimant's solicitors that they were authorised to accept service. Ostensible authority to accept service could be given to a defendant's solicitors, prior to their instruction, by the defendant nominating those solicitors in a letter to the claimant's solicitors.

The claimant employee (H) appealed against a decision that the court had no jurisdiction to hear her injury at work claim as the claim form had not been validly served in accordance with CPR r.6.5. Before action, H's solicitors had written to the defendant NHS Trust (D) informing it that H would be issuing proceedings and asking D to nominate solicitors to accept service.

D replied with the name of its nominated solicitors (V) and a document exchange number for the solicitors which contained a typographical error of one digit. H's solicitors replied that they had received no formal notification from V that they had instructions from D and accordingly they served the claim form directly on D. V were subsequently instructed by D. The court ordered that the claim form had not been validly served as D had conferred ostensible authority on V by nominating V for acceptance of service in its letter to H's solicitors, prior to instructing V. H argued that they had correctly served the claim form on D as

(1) D had not given the business address of its nominated solicitor;
(2) D had not instructed solicitors to accept service; and
(3) V had not confirmed their authority to accept service.

HELD: (1) The incorrect document exchange number for V was a mere typographical error of one digit and there was no evidence that the error was material or that the documents were therefore incapable of delivery. Thus V's correct business address had been given for the purposes of CPR r.6.5.

(2) The validity of service of a claim form ought not to depend on whether the solicitors nominated by a defendant to accept service had, at the moment of service, actual as opposed to ostensible authority to do so. D's letter constituted a representation to H's solicitors that V acted for D. H's solicitors were thereafter obliged to proceed on that basis under CPR r.6.5. V were given ostensible authority to accept service on behalf of D by D's letter to H's solicitor, Nanglegan v Royal Free Hospital (2001) EWCA Civ 127, (2002) 1 WLR 1043 applied. Thus V were D's solicitors for the purposes of CPR r.6.5. The comment in the White Book at 6.5.3 to the contrary was not supported by a careful reading of Smith v Probyn & anr Times, March 29, 2000, considered.

(3) There was no obligation on V under CPR r.6.5 to confirm to H's solicitors that they were instructed to accept service.

Appeal dismissed.

For related proceeding see Horn v Dorset Healthcare NHS Trust (2004).
Counsel:
For the claimant: Mr Levinson
For the defendant: Mr Harris
LTL 17/9/2004 (Unreported elsewhere)
Judgment Approved - 10 pages
Document No. AC0106895