SERVICE OF PROCEEDINGS: THE "ESSENTIAL CHECKLIST"

May 18, 2014 · by · in Avoiding negligence claims, Civil Procedure, Risks of litigation, Service of the claim form

In earlier posts I have described how groups of litigators got together earlier this week to draft essential “safety” checklists for key elements of civil procedure.  Here we have the checklist for service of proceedings.

THE TEAM

This checklist was produced by a team who named themselves “Service with a Smile” (I gave everyone the opportunity of putting their own name to the lists, with typical Yorkshire modesty) everyone declined.   This was clearly a team with enterprise.  In the group session they left the lecture room and went to sit in the comfortable chairs where the drinks and food were kept.

A WORK IN PROGRESS

In drafting these checklists we were aiming to produce “working tools” for litigators. We didn’t want to impose onerous obligations upon ourselves, rather produce something practical which helps in our everyday work.  The checklists make no claim to be complete, or perfect, however they represent the start of a process.  They are better than nothing (and it appears that most people are working with nothing at the moment).

FEEL FREE TO COMMENT AND ADD: “LITIGIPEDIA” STYLE

There is a comment section to this blog, and indeed this post, feel free to make comments as long as they are constructive and add to the debate.  We have already had several useful comments arising from the previous post.

USEFUL COMMENTS TO DATE

  • On twitter several people made the point that you must be sure that you put the right number of stamps on for the size and weight of the envelope.
  • David Willink, of Lamb Chambers, has made an interesting comment about service on directors (which I reproduce underneath the checklist  below.
  • There has been an enquiry about service on a company that is restored to the register, again that is reproduced below.
  • Someone has, by e-mail, raised an issue on service at the “last known address”. This is a important point in itself. and will form the subject of a separate post.

SERVICE WITH A SMILE: THEIR CHECKLIST

 1. Identify the legal identity of the defendant.

 2. Identify the correct address for service / look at the pre-action protocols/check registered office/check if still “last known address”.

 3. Ask the defendant for their address for service in the letter of claim. If an address for service is nominated place this on the file and on any case management system at once.

 4. Ensure the address for service is underlined/ verified by another fee earner. 

5. Ensure there is a system of the claim form is issued protectively. (Additional dated for further service of documents and check whether defendant address has changed since nomination/service of claim form) 

6. Ensure proper training and refresher training for all staff. 

7. Serve notice of funding. 

8. Create a system of electronic service. 

9. Keep track of “star dates” i.e. all the important dates. 

10. Make sure you know when the client /fee earner in charge may be unavailable (such as holidays) so that documents can be signed before service and service can be arranged.

THE CORRECT POSTAGE IS A VERY SERIOUS POINT

The point made about postage is very serious.  There is not, to my knowledge, any case law on what happens if the incorrect postage is paid.  However we know, for instance, that proceedings are not deemed to be issued if the incorrect fee is sent.  It is not difficult to imagine the difficulties that will ensue if a claim form is served, at the last minute, with incorrect postage.  Here is a link to the Post Office Calculator

COMMENT FROM DAVID WILLINK: SERVICE ON DIRECTORS

David put a comment at the end of the previous blog post.  These are often missed so I reproduce it here.

“As far as address for service is concerned, it is worth also noting the provisions of s.1140 Companies Act 2006. This provides for service on company directors at the address given for service in the register of directors. Crucially, this section applies whatever the purpose of the document in question. It is not restricted to service for purposes arising out of or in connection with the individual’s directorship or in connection with the company concerned (subsection 3).

This point was taken successfully in Key Homes Bradford Ltd & Ors v Patel [2014] EWHC B1 (Ch), where Master Marsh held that it is “… a parallel code …”, “… entirely outside the provisions for service in the CPR,” and “… of broad effect”, and provided a valid address for service of proceedings unrelated to the individual’s directorship”

Here is a link to the Key Homes Bradford case

KATHERINE’S QUESTION ON SERVICE ON A RESTORED COMPANY

There is another comment on the previous post.

“Following on from this, what is the correct position where the long since dissolved defendant has been restored to the Register and it is unclear whether anyone would be present at the registered address to accept service? Should the claimant’s solicitors ask whether the insurers/their solicitors would accept service, or is it good service to serve on the restored defendant regardless?”

 

 

 

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