SERVING ON NOMINATED SOLICITORS: WHEN, WHERE AND WHY: TRYING TO STAY OUT OF TROUBLE

This is not the first time I have written about the need for care when serving the claim form on solicitors. I suspect it won’t be the last. The cases just keep on coming.The Court of Appeal decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 shows that the courts have little sympathy for claimant lawyers who get this issue wrong. Even if the courts did have sympathy there is often little, in practical terms, that can be done, particularly if service has been left to the last minute.  Here is a short reminder of the principles.

THE BASIC RULES

CPR 6.7 provides an easy summary.

“6.7
(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.”

KEY POINTS

Note there are a number of points here:

The word “or” is used. The defendant can nominate an address or a solicitor can write confirming they are nominated. There is not a requirement for both.
The word “must” is used.
(However, despite the word “must” being used there is an exception in the case of a limited company – that can always be served at its registered office.)

SERVING AT THE NOMINATED ADDRESS

The general stringency of approach to issues relating to service was confirmed by the Court of Appeal decision in Nangelenan -v- Royal Free Hampstead NHS Trust (CA 23rd January 2001)

Nangelenan was a case where, prior to the issue of proceedings, the defendant’s insurer notified the claimant’s solicitor that Browne Jacobson solicitors were to act on their behalf in defending an action. Browne Jacobson subsequently wrote to the claimant’s solicitors and confirmed their instructions.

The claimant subsequently served proceedings on the Royal Free Hospital (not the NHS Trust that was the proper defendant). In any event proceedings were not served on the nominated solicitors.

The issue before the Court of Appeal was whether the service on the defendant in these circumstances was proper service within the rules. Rule 6.5(5) (4) states that any document must be served or left at “the address for service given by the party to be served.”

The claimant argued that service on the defendant personally was appropriate service. The Court of Appeal held it was not. Lord Justice Thorpe stated:

“… the primary obligation is on a party to give an address for service, and that once there has been compliance with that obligation, ordinarily speaking, service will be at the address given.”

ONCE THE SOLICITOR WRITES TO STATE THEY WILL ACCEPT SERVICE THEN SERVICE MUST TAKE PLACE ON THE SOLICITOR (WITH AN EXCEPTION)

If the solicitor has written stating that they are authorised to accept proceedings then service must take place on that solicitor. Collier –v- Williams [2006] EWCA Civ 20. (subject to the exception in relation to a limited company).

THE FACT THAT A SOLICITOR IS ACTING ON BEHALF OF A DEFENDANT IS NOT ENOUGH

This was the mistake made by the claimants’ solicitor in Woodward (and they were far from the first firm to make this mistake). The fact that you have been communicating with a solicitor for many years does not give rise to any implicit obligation on the defendant’s solicitors. The decision to accept service has to be express and it has to be “in writing”. The fact that a solicitor is acting for the party and has written on the defendant’s behalf prior to issue does not mean that authority is inferred. Service on the solicitor without express confirmation of authorisation to accept service is not good service, Smith -v-Probyn and PGA European Tower Ltd [2000] 2 All ER 250.

THE LIMITED COMPANY EXCEPTION

There is an exception, however, in the case of limited companies. Here service can take place under the Companies Act or the Civil Procedure Rules. As a result service can take place at the registered office of the company regardless of whether or not a solicitor has been nominated, Murphy -v- Staples (part of the Bridgefield group of cases) [2003] EWCA Civ 656.

WHAT HAPPENED IN WOODWARD

The judgment in Woodward provides an object lesson in how easy it is to make this mistake, particularly if matters are left until the last minute.

1. The alleged causes of action accrued at the date of the contract and, therefore, the claim was potentially time barred from 20 June 2017. The claim form was issued on 19 June 2017 and, pursuant to CPR r 7.5(1), should have been served by no later than 12.00 midnight on the calendar day four months after that date, being midnight on 19 October 2017.

2. The claim form, particulars of claim and various annexes to it and a response pack were sent by CB to M&R by first class post on 17 October 2017 by way of service and were received on 18 October 2017. The same documents were also sent by email to Mr Dawson-Gerrard, a partner of M&R at 10.37 a.m. on 17 October 2017. A “read receipt” was received by CB at 10.43 a.m. that day, acknowledging receipt of the email and confirming that it had been read. Having received the email, Mr Dawson-Gerrard satisfied himself that the purported service was ineffective, took the view that he was not obliged to notify the Appellants’ solicitors, CB, of their mistake, met with representatives of Phoenix and took instructions from Phoenix not to inform CB of the mistake. The claim form expired at midnight on 19 October 2017.

3. It was not until the following day, 20 October 2017, that M&R wrote to CB stating that service had been defective. The claim form had not been served on Phoenix, M&R were not instructed to accept service and neither M&R nor Phoenix had ever confirmed in writing to CB that MR had been authorised by Phoenix to accept service. M&R contended therefore that the claim form had expired and with it, the proceedings. M&R put CB on notice that it would apply, on behalf of Phoenix, for a declaration that as a result of the expiry of the claim form the court had no jurisdiction to hear the claim. Steps were taken immediately by CB to seek to serve Phoenix by courier, first class post and email at its trading address in Runcorn and the documentation, including the claim form and particulars of claim, was delivered just after 11a.m. on 20 October 2017.

As it turned out the claimants’ steps were wholly ineffective. The Court of Appeal confirmed that the court would not make an order remedying the defective service. The claim remained struck out.