Dispensation

Wilkey and another v British Broadcasting Corporation and another (CA TLR 8 November)

In Anderton v Clwyd CC [2002] 3 AU ER 813 (20/ LL p99) the court held that it could dispense with service in cases where the claimant had sought to serve the claim form by a permitted method of service and the form had in fact been received by the defendant before the end of the period for service, even though the deemed date of service in CPR 6.7(1) was out of time. In what circumstances should the court exercise its dispensing power? In claims involving deemed late service of the claim form before the decision in Anderton, the court should ordinarily exercise its power to dispense with service under rule 6.9. In post- Anderton cases, however, the dispensing power should ordinarily not be exercised in the claimant’s favour. In those cases a strict approach should generally be adopted. That approach would mean that the court in post- Anderton cases, quite logically, would be the readier to reject the claimant’s explanation for the late service and to criticise his conduct of the proceedings. Not surprisingly, it had taken a little time for the new culture to become bedded down. However, the matter now having been exhaustively reviewed in three judgments of the Court of Appeal, the transition period was to be taken to have come to an end.