SIX MONTH PERIOD FOR SERVICE, EVEN IF "FOREIGN" DEFENDANT ACTUALLY SERVED WITHIN THE JURISDICTION
Another interesting twist to the law of service of proceedings can be found in the Court of Appeal decision in Ashley -v- Tesco Stores (15/01/2015)*. The Court of Appeal found that there was a six month period for service of a claim form when the defendant’s registered office was in Scotland, even if service had taken place at an address in England or Wales.
NB A CONSIDERATION OF THE FULL TRANSCRIPT OF THE CASE CAN BE BE FOUND HERE .
The defendant company had its registered office in Scotland. It did not provide an address for service.
- The claimant issued a claim form and served the claim form at the Defendant’s principal place of business in England and Wales.
- That claim form was served within the six month period allowed for service in accordance with CPR 7.5(2) but outside the four month period permitted by CPR 7.5.
- On the last day of the four month period the defendant’s solicitors had given notice that they were accepted to authorise service.
- The defendant argued that the claim form was served out of time.
- The judge at first instance held that the period of service under s.1139 a claimant was required to determine whether any of the methods of service in that section were available first.
KEY POINTS OF DECISION ON APPEAL
- The claimant had six months to serve.
- There was no obligation on a claimant to explore other methods of service under s.1139.
- The rules were construed in a method which reduced expense and avoided the risk of costly satellite litigation.
COURT OF APPEAL DECISION: THE PERIOD FOR SERVICE IS SIX MONTHS EVEN IF SERVICE, IN FACT, TAKES PLACE IN ENGLAND AND WALES
The Court of Appeal held:
- The rules meant that a claimant could rely on CPR r.6.3(2) which meant service could take place under CPR Part 6 or any of the methods permitted in the Companies Act.
- Section 1139 authorised a different method of service, however this did not mean it could not be a method of service for the purpose of Part II of Part 6 of the CPR.
- The defendant’s argument that a claimant should make enquiries about a service in the jurisdiction before assuming that there was a six month period meant that claimants would need to make substantial enquiries, since this could include somthing as simple as a pop-up shop.
- If the defendant was correct it would mean that claimants who used the six month period in error would have to apply for extensions of time, relying on the court’s discretion and using up its resources.
- The defendant’s argument also gave rise to the potential for costly satellite litigation and that approach was contrary to the overriding objective under CPR r.1.1.
- The claim form had been served in time.
THE RELEVANT STATUTE AND RULES
THE COMPANIES ACT
Section 1139 of the Companies act 2006 deals with service on a “overseas” company (which includes Scotland).
“1139Service of documents on company
(1)A document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company’s registered office.
(2)A document may be served on an overseas company whose particulars are registered under section 1046—
(a)by leaving it at, or sending it by post to, the registered address of any person resident in the United Kingdom who is authorised to accept service of documents on the company’s behalf, or
(b)if there is no such person, or if any such person refuses service or service cannot for any other reason be effected, by leaving it at or sending by post to any place of business of the company in the United Kingdom.
(3)For the purposes of this section a person’s “registered address” means any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection.
(4)Where a company registered in Scotland or Northern Ireland carries on business in England and Wales, the process of any court in England and Wales may be served on the company by leaving it at, or sending it by post to, the company’s principal place of business in England and Wales, addressed to the manager or other head officer in England and Wales of the company.
Where process is served on a company under this subsection, the person issuing out the process must send a copy of it by post to the company’s registered office.
(5)Further provision as to service and other matters is made in the company communications provisions (see section 1143)
Service of a claim form
(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
|Method of service
|First class post, document exchange or other service which provides for delivery on the next business day
|Posting, leaving with, delivering to or collection by the relevant service provider
|Delivery of the document to or leaving it at the relevant place
|Delivering to or leaving the document at the relevant place
|Personal service under rule 6.5
|Completing the relevant step required by rule 6.5(3)
|Completing the transmission of the fax
|Other electronic method
|Sending the e-mail or other electronic transmission
(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.
Part 6 of the CPR (dealing with service, including service out of the jurisdiction) can be found here.
* Reported on Lawtel. This post is based on the Lawtel note of the judgment.
OTHER POSTS ON SERVICE OF THE CLAIM FORM
- Service of the Claim Form: What can possibly go wrong?
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good service.