THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?
Do you know the address for service of all your cases? Are you sure? Looking at the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd  EWHC 334 (Ch) brings out the point as to how insouciant litigators can be in relation to the address for service of the claim form.
TAKE A CHANCE ON ME…
Looking at the bare facts in Woodward (and this could be any of of dozens of cases on this issue).
This was a £5 million claim.
- Proceedings had been issued at the last moment.
- Service had been left until late.
- There had been no nomination of an address for service by the defendant.
- The defendant’s solicitors had not stated they would accept service.
Yet the claimants’ solicitors, in essence, took a chance. So far that chance has paid off. However for every Master Bowles who, on the facts of this case, granted the claimants an indulgence there may be a Lord Sumption (and two colleagues in the Supreme Court) who (on fairly similar facts) do not grant a claimant an indulgence.
DO YOU KNOW THE ADDRESS FOR SERVICE?
Service of the claim form is one of those areas of practice where familiarity gives rise to laxity. How else is it that Master McCloud can state:
“April and indeed May are, notoriously, ‘bluebell time in Kent’, but on the Masters’ corridor those months this year have yielded only a dry and unlovely crop of procedural service issues. Despite efforts by numerous courts at all levels to prevent their re-growth, issues over service of claim forms tend to spring up, encouraging a simile far too obvious to state.”
(Caretech Community Services Ltd v Oakden & Ors  EWHC 1944 (QB))
Given the importance of knowing the correct address for service, the difficulties of putting problems right, and the profound consequences of failure, this laxity is – shall we say – surprising.
DO YOU HAVE A SYSTEM?
In any action, at any time, a claimant lawyer must know the address for service. Yet is a hardly that is often barely addressed.
- A defendant may nominate an address for service very early on, alternatively a solicitor may write. The letter may become of crucial importance some years later. However a handful of firms (that is less than 5% on my own research*) have any system at all for noting on the file or on any case management system that an address for service exists.
- What happens is that many years later this is either overlooked or someone (already up against a time limit) spends many hours of (what should be unchargeable) time rooting through letters and emails to see whether an address for service has been given.
- Sometimes there is an attempt to remedy this by asking the defendant, usually in the last week before service is due, whether there is an address for service. Sometimes there is no response. Sometimes the defendant does not respond for a good reason.
*Which admittedly is asking for a show of hands in numerous conferences over many years (APIL, MASS, The Law Society and several others). However if people did have a system they would not be shy about putting their hands up.
Such a system is cheap. Indeed it probably costs nothing. Well, one unit – “noting that defendant has nominated address for service and ensuring this is recorded on file” may be allowed by even the most parsimonious costs judge. However “Six hours reviewing 6 arch-lever files of correspondence and all relevant emails to assess whether an address for service has been given” is going to be difficult to get past even the most munificent member of the judiciary. However if you have no system, and you don’t want to gamble on this issue, this six hour search may well be essential.
YOU HAVE TO KNOW THE ADDRESS FOR SERVICE
Most (hopefully all) litigation practices have a system for monitoring the limitation date. Yet the address for service is just as important. Get the address wrong and you could have paid £10,000 in court fees just for nothing.
This system can be very low tech. Putting in blood red ink on the front of a physical file “Address for service nominated, see email 26th March 2015” will suffice for most purposes. I am sure more high tech answers are also available. However the basic point is to know, not guess, and not to take any chances at all. Otherwise, this April and May, you may well be adding to the “unlovely crop” of issues that the courts have to deal with.