A LITIGANT IN PERSON CAN SERVE A CLAIM FORM VIA A NON-SOLICITOR AGENT: HIGH COURT DECISION

May 21, 2017 · by · in Uncategorized

There has been a  recent spate of cases relating to service of documents. One of these is Ndole Assets Limited -v- Designer M&E Services UK Limited [2017] EWHC 1148 (TCC).   The court considered the issues that arose when the claimant litigant in person served the proceedings used a firm that was not an authorised entity under the Legal Services Act 2007.

KEY POINTS

  • A litigant in person can use an agent to serve proceedings.
  • The service of proceedings by the agent did not render service invalid.

THE CASE

The claimant issued proceedings as a litigant in person.  Service of proceedings was left to a firm called CSD Legal Limited “CSD”. CSD is not a firm of solicitors.

THE DEFENDANT’S ARGUMENT

The defendant argued that CDS was not a firm of solicitors and could not,therefore, validly serve proceedings.

“the service of the Claim Form and the Particulars of Claim amounted to either the ‘commencement’ or the ‘prosecution’ of these proceedings, or the performance of an ‘ancillary function’ in relation to the proceedings, and was therefore a reserved legal activity pursuant to Section 12 of the 2007 Act. Since it is common ground that Mr Dain and/or CSD were not entitled to carry out such an activity, Designer say that service was unlawful and invalid, and as a result, the proceedings should be struck out.” [The Act being the 2007 Legal Services Act).

THE JUDGE’S CONCLUSION: A LITIGANT IN PERSON CAN USE AN AGENT TO SERVE PROCEEDINGS

The judge considered the defendant’s argument at length. However he concluded that the claimant was entitled to use an agent to serve proceedings. Although it would have been better if CSD had made their status clear at the outset.

  1. However, Ms Sinclair had a much better argument when she identified the fact that Claim Forms and Particulars of Claim are regularly served by process-servers, all over the country, every working day of the week. Such process-servers are not entitled to carry out reserved legal activities. Accordingly, she argued, the service of these documents by CSD cannot be a reserved activity.
  2. In my view, the (partial) answer to this is that process-servers are engaged by the relevant solicitors to carry out this particular task. They have the solicitors’ delegated authority to serve the documents. In those circumstances, since the solicitors on the record are responsible for the carrying out of all reserved legal activities, the solicitors remain responsible for the service of the documents, even if they have sub-contracted the task to professional process-servers. In that way, there is nothing inconsistent in concluding that the service of proceedings by process-servers is a reserved legal activity, for which the solicitors on the record are and remain responsible.
  3. So what happens in a case like this, where there are no solicitors acting, and the claimant is a litigant in person? This was not a point that was addressed fully in submissions, because the principal points taken by Ndole were those which I have set out (and rejected) above. But the short answer must be that, as a litigant in person, the claimant is permitted to serve these documents. That is what the CPR says: r.7.5 refers to ‘the claimant’. So if Mr Laznik, the sole beneficial owner of Ndole, had served the documents on Designer on 31 January 2017, there would now be no difficulty.
  4. So the final question is whether, as a litigant in person, Ndole (or Mr Laznik) was entitled to delegate that task to Mr Dain. In my view, it was. It would be nonsensical to conclude that, whilst a solicitor can delegate the carrying out of this task to a third party, a litigant in person cannot do so. There would be no basis for such discrimination. Accordingly, I have reached the view that, whilst a litigant in person can serve a Claim Form and Particulars of Claim himself, he can also ask an agent to do it on his behalf. That is what happened here. I am therefore not prepared to say that service in this case was unlawful.
  5. Even if I had found that service was unlawful, I would have taken some persuading that the consequence of that was that the proceedings should be struck out. Service was effected, and there is no dispute that the relevant documents were served upon and received by Designer at the relevant time. In those circumstances, whilst the penal nature of the provision in the 2007 Act might have necessitated a variety of sanctions if I had concluded that it was unlawful, I would have been very reluctant to penalise Ndole by striking out their claim, particularly in circumstances where, as outlined above, real limitation issues may arise in respect of any fresh claim.”

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