AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 7: SERVICE OF THE CLAIM FORM (1) – TIME (SIT UP AND PAY ATTENTION NOW NON-PI LAWYERS)

The previous post in this series have been primarily of interest to personal injury lawyers.  Matters relating to service of the claim form relate to virtually all litigators. Indeed the majority of disputed cases in relation to service appear to come in commercial cases.  The pattern tends to be familiar. A claimant waits until the end of the limitation period, issues, waits and then forgets to serve or serves late.  This post looks at the basic requirement to serve the defendant within the four month period.

 

WHERE THINGS GO WRONG: LATE SERVICE

  • Proceedings are issued and then the need to serve the claim form forgotten.
  • Service is left to the last moment and then there are problems in finding and serving the defendant.
  • The claimant waits until the last moment and then applies for an extension of time, which is set aside (this will be dealt with in the next post).

THE RULES

Service of a claim form

7.5

(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.

THE DATE OF ISSUE

Note the very specific reference to the date of issue. This is not the same date as the date the court received the claim form (the date that is important for limitation purposes).

THE PRACTICE DIRECTION

The difference between the date of issue and the relevant date for limitation purposes is recognised in the Practice Direction (PD7). There is a difference between the date of issue and the date of receipt.

“5.1  Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2  The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

5.3  An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.

5.4  Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date”

THE CASE LAW

St Helens Metropolitan Borough Council –v- Barnes  [2006] EWCA Civ 1372.

“18. The date of issue of the claim form fixes the time within which the proceedings have to be served (rules 7.5 and 7.6). A defendant can see from the claim form whether or not he has been served in time. He will not be able to see when the request to issue the claim form was received by the court, but if the date of issue is outside the limitation period this will be apparent and the Practice Direction (paras. 5.2 – 5.4) is designed to ensure that anyone enquiring will be able to discover the date of receipt. There is a measure of uncertainty about this but not in my judgment sufficient to warrant a different construction of the statute.”

METHOD OF SERVICE

Service for the purpose of CPR 7.5 requires that the step be taken within the four month period, not that the claim form arrive. So putting the claim form in the (first class) post on the last date of validity is good service.

AVOIDING PROBLEMS

  • An unserved claim form is a highly dangerous thing.
  • Knowing the dates and details for service is as important as knowing the law relating to limitation.

Once proceedings are issued the safest working assumption is that you have the legal equivalent of an unexploded grenade in your filing cabinet. Four months can pass very quickly.  A lot of procedural issues arise  in those cases when panic  has set in at the end of the four month period.