PI Brief Update

When is a Party not a Party? - Soyab Patel, KLS Law Solicitors

18/03/22. A novel and interesting point in relation to Part 20 claims. I acted on behalf of the 2^nd Defendant in this matter.

In Bailey (C) -v- Barclays Bank UK PLC (D1) and London Plastic Surgeons Limited (D2) the Claimant commenced proceedings against the 1^st and 2^nd Defendant.

However, the Claimant only served D1 electing not to serve D2. D1 purported to pursue an additional claim pursuant to Part 20.6(1) of the Civil Procedure Rules 1998, which provides:

“a defendant who has filed an acknowledgment of service of a defence may make an additional claim for contribution (GL) or indemnity (GL) against a person who is already a party to the proceedings by –

a. filing a notice containing a statement of the nature and grounds of his additional claim; and

b. serving the notice on that party.”

D1 sent to D2 a copy of its Defence and the additional claim that it wished to pursue against D2 (Part 20 claim). On behalf of D2 it was submitted that although D2 was named by C as a party to the claim form when issued, it had not been served by C. C had no intention of serving and proceeding against D2. Consequently, D2 was not a party to the claim so D1 could not pursue an additional claim against D2 pursuant to CPR 26.6.

If that was right, D1 would have to rely upon CPR 20.7(2) which is when an additional claim is made when the court issues the appropriate claim form. As D1 did not request the additional claim to be issued before or at the same time as filing its Defence, D1 would now need the permission of the court.

The matter came before Master McCloud sitting in the QBD of the RCJ who held that where a claim form is issued by a Claimant against more than one Defendant but is not served on one of the Defendants and time for service of the claim expires without service on that Defendant, the Defendant who was served must use CPR 20.7 if it wishes to commence any Part 20 claim against the non-served Defendant. If that were not the case then CPR 20.6 would enable the claim to commence and be pursued against the unserved Defendant without any valid originating process having been served and absent any order deeming it served (or extending time for service), merely by filing a notice. There has to be at least one originating process served in respect of a Defendant whether that be the original claim (in which case CPR 20.6 may apply) or a separate Part 20 claim (in which case CPR 20.7 applies).

Soyab Patel LLB LLM
Solicitor Advocate (All Proceedings)
KLS Law Solicitors

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