SERVICE OF THE PARTICULARS OF CLAIM TWO DANGEROUS POINTS TO WATCH
Most of the cases and commentary in relation to service concentrate upon late service of the claim form. However it is possible to fall foul of the rules and serve the particulars of claim late even when the claim form is served on time.
DANGER AREA 1: DIFFERENT RULES APPLY TO THE CLAIM FORM AND PARTICULARS OF CLAIM
The rules relating to deemed service of the particulars of claim were revised to deal with some of the anomolies that arose from the deemed date of service rules. CPR 7.5 now provides that service takes place by taking the step required to serve (that is post etc) before 12.00 midnight on teh calender day 4 months after the date of issue of the claim form.
This means that the claim form is validly served by putting it in the post (or using another authorised method of service). The key date is the date it was sent not the date it was received.
BUT THE PARTICULARS OF CLAIM MUST BE SERVED WITHIN THE FOUR MONTH PERIOD
The notes at 7.4.3 of the 2014 white book state that there is now a “trap for the unwary”. This is because CPR 7.4(2) requires that the particulars of claim must be served on the defendant “no later than the latest time for serving the claim form”.
The problem is that claimants often believe they have another 14 days to serve the particulars after service of the claim form. However the particulars have to be served within the 4 month period. Further there are potential problems if the claim form and particulars are sent on the same day.
- The claim form is deemed served on the day in question.
- The particulars of claim remain subject to the “deemed service” provisions . If posted they are deemed to arrive the second business day after posting.
There is an argument therefore that whilst a claim form may be served in time if sent at the end of the four month period the particulars of claim are not. Relief from sanctions is required.
DOES THIS MATTER IN A POST-DENTON WORLD?
Whilst matters have improved since Mitchell in remains the fact that nothing is certain. An application is necessary and it is possible to foresee cases where service is left to the last minute, and there is no compliance with the Pre-Action Protocol, a judge may find that the breach is both serious and substantial.
DANGER AREA 2: FORGETTING TO SERVE THE PARTICULARS OF CLAIM
Another danger is forgetting to include the particulars with the claim form. This is not difficult to do if the particulars were never sent to court and never inserted into the documents received from Salford. The sight of the claim form and response pack could give the impression that all the documents were present. The defendant will receive the claim form but no particulars. It can lead to some major confusion which would end, ultimately, in the claimant having to apply for relief from sanctions.
THE OBVIOUS LESSONS
- Check that the particulars of claim are behind the claim form when service takes place (doubly important if the particulars were never sent to court and were not in the documents received back).
- Serve promptly. An unserved claim form is, basically, a ticking time bomb.
- If for any reason you cannot serve immediately then diarise the situation fully and serve the claim form (and particulars) well before the last potential date. Make sure the particulars arrive within the four month period.
WHY MENTION THIS NOW
These two scenarios are based on hearings I have been involved with this week. (The claimants obtained relief from sanctions but, in one of the cases, it was an extremely expensive outcome for the claimant who was ordered to pay costs).
MORE CHEERFUL READING ON SERVICE OF THE CLAIM FORM
- Service of the claim form: the importance of serving on the right person and at the right time: another claimant comes to grief.
- Late service of the claim form: retrospective extensions and other causes of sleepless nights.
- A dismal catalogue of error and confusion: service of the claim form, errors and other mishaps
- Service of the claim form at the last known address: more dangerous points to watch
- Service of the claim form: essential points before the essential checklist
- Delaying service of the claim form: dicing with procedural death
- Service of the claim form: another example of a claimant coming to grief
- Service of proceedings: the “essential checklist”