SERVICE ON SOLICITORS: A REMARKABLE VIEW LEADS TO MAJOR MISTAKE: THE LAW SUMMARISED
I have already written today about the decision in Higgins & Ors v ERC Accountants & Business Advisers Ltd  EWHC 2190 (Ch). I want to isolate one element of that case that relates to the remarkable view that the claimants’ solicitor had about service on solicitors.
The claimants were attempting to argue that service on solicitors was good service, even in circumstances where the solicitors had not stated that they were instructed to accept service.
THE CLAIMANTS’ SOLICITORS MISUNDERSTANDING OF THE RULES
That didn’t happen because of Cs’ solicitors’ error, caused largely by leaving service until very late in the period of extended validity of the Claim Form, then not serving in accordance with the Rules. The evidence of Cs’ solicitor as to how this came about in summary is that she had forgotten about the need to serve the ACF, that she understood that the Claim Form had been served on the defendants when it had been sent to the defendants’ solicitors the previous July and that the defendants solicitors did not remind her of the terms of the consent order – see paragraph 36 of her first statement where she maintains she did not serve the ACF because she knew that the Claim Form “… had already been sent the previous July … and in all honesty I had forgotten about the wording of the consent orders which provided for service of the amended Claim Form”, paragraph 40 of her statement, where Cs’ solicitor accepts that she should not have forgotten and paragraph 41 of her first statement where she says that she was surprised by the need for instructions from the defendants concerning service because she considered that whether a firm of solicitors accepted service “… was solely a matter of policy for the law firm concerned”. This suggests that Cs’ solicitor was not aware of the general principle referred to above or, in consequence, of the real possibility that agreement to accept service by the defendants’ solicitors might not be forthcoming at all and might not be forthcoming by the deadline for service.
“6.7—Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state
(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where—
(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or
(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,
the claim form must be served at the business address of that solicitor.”
THE LEGAL POSITION: A SOLICITOR REQUIRES EXPRESS PERMISSION TO ACCEPT SERVICE
- In addition, Cs had not asked any of the defendants or their respective solicitors either in the pre-action protocol letters or by any subsequent communication down to 20 July whether they were able to serve proceedings on the defendants’ solicitors. That only came much later in the following year. CPR r.6.7 is entirely clear as to what is required if service is to be effected on a solicitor. A solicitor does not generally have implied authority to accept service and if a solicitor accepts service without express authority he or she is in breach of his professional duty to his client – see Personal Management Solutions Limited v. Gee 7 Group Limited (ante) per Arnold J at paragraph 27. As Arnold J pointed out, this is not a technical point. It is an important matter as between clients and solicitors since holding a solicitor to have accepted service on behalf of a client notwithstanding that the solicitor had not said he was authorised to accept service or even been asked whether he was authorised to accept service could expose a solicitor without actual authority to accept service to regulatory action or a claim. That CPR r.6.7 had not been complied with coupled with the general law context being as described by Arnold J shows that service was not something being considered by Cs’ solicitors at any stage down to 20 July 2016.”
UNLESS THE SOLICITOR STATES THEY ACCEPT SERVICE THE CLAIMANT HAS TO ASK (AND THE SOLICITOR HAS TO SAY YES).
Alternatively the defendant can expressly nominate the solicitor. There are real dangers, however, in a claimant making assumptions. The solicitor does not have implied authority. The fact that the solicitors have been corresponding and indicated that all correspondence should be sent to them does not mean the defendant’s solicitors have any implied authority to accept service.