“IF COURT PROCEEDINGS ARE SERVED ON A SOLICITOR WITHOUT AUTHORITY – IS THAT GOOD SERVICE?”: A QUESTION WITH AN EASY ANSWER

“If court proceedings are served on a solicitor without authority is that good service” was a search that led to this blog yesterday.  This is a question with a very easy answer.  This blog has looked at this issue several times in the past.  But this may be one of those matters that justifies repeating.  Here are the basic points.

 

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:

  1. 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.
  2. The word “must” is used.
  3. 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 claimant’s solicitor in Higgins.  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.