Recent litigation in a case handled by Clyde & Co’s Cross-Border team has highlighted an increasingly common procedural pitfall: the improper service of a Claim Form where proceedings are commenced within the Damages Claims Portal (DCP) but subsequently served under the conventional CPR Part 7 regime. A recent decision on a case in St Helens County Court underscores the strict operation of Practice Direction 51Z ("PD51Z") and the risks for claimants who attempt to mix procedural mechanisms.

Two procedural regimes – but only one may apply

Where a claim is started within the DCP, the Civil Procedure Rules create a self-contained service regime distinct from that under CPR Part 7. Nonetheless, some firms continue to conflate the two, perhaps due to habit or uncertainty arising from the transitional nature of the DCP.

In the case at hand, the claimant commenced the claim within the DCP but purported to effect service of the Claim Form ("CF") pursuant to the standard Part 7 service rules. Acting on behalf of the defendant, Clyde’s Cross-Border team submitted - successfully - that this hybrid approach is impermissible.

The mandatory effect of PD51Z

A central plank of the defendant's submissions was that PD51Z is mandatory in its application where a claim is commenced in the Portal. Paragraph 3.3 of PD51Z provides that the claimant must notify the defendant of the claim through the DCP, and that such notification constitutes service of the Claim Form for the purposes of CPR 7.5(1). The mandatory language leaves no procedural discretion.

The defendant argued that service had not been validly effected because the claimant attempted to rely on conventional Part 7 rules rather than the mandatory PD51Z mechanism. The court accepted this analysis and held that the Claim Form had not been served in accordance with the rules, resulting in the strike-out of the claim.

Costs consequences and the exceptional circumstances gateway

On the topic of costs, the defendant relied on CPR r.45.9, which allows a party to seek costs in excess of fixed amounts where there are exceptional circumstances. It was submitted that the claimant’s failure to serve the Claim Form in accordance with mandatory rules amounted to an exceptional circumstance.

The court ordered that having deemed that the claimant pay the defendant’s costs, the claimant’s solicitors had 14 days to show cause as to why they should not be personally liable for the defendant’s costs.  

Key takeaways

Complying with PD51Z is mandatory where proceedings commence in the DCP. Parties cannot choose to mix PD51Z and Part 7 service rules and if they chose to do so, the outcome may be fatal to the claim. Non-compliance with service rules may justify costs outside the fixed regime, subject to CPR r.45.9.

Clyde & Co are specialists in dealing with cross-border and international claims, and we constantly monitor developments around this topic. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Nicky Clench or any of our Cross-Border team.