SERVICE OF THE CLAIM FORM ON A SOLICITOR (NOT THE FIRST TIME I’VE WRITTEN ABOUT THIS AND PROBABLY NOT THE LAST…)
Every so often, but sometimes I think not often enough, I write posts on the dangers relating to service of the claim form. Here is a quick reminder about the basic principles of serving on a solicitor. This post has been encouraged by a number of the search terms that have led people to this blog. There are still a lot of misconceptions about when proceedings must be served on a solicitor.
THE BASIC RULES
CPR 6.7 provides an easy summary.
(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.”
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.
- 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  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  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)  EWCA Civ 656.
AN EXAMPLE OF THINGS GOING WRONG
In Higgins & Ors v TLT LLP  EWHC 3868 (Ch), there was a fundamental misunderstanding on the part of the claimant’s solicitor that she could simply serve the claim form on the defendant’s solicitor and it was a “matter of policy” for them as to whether they accepted that service.
THE PROBLEM IN HIGGINS
The judgment shows that the solicitor took a relaxed view about the importance of serving the claim form promptly. It shows a wholly mistaken view as to the ability to serve on a solicitor acting for a defendant when the solicitor has not been nominated to accept service and has not stated they will accept service.
The claim form had been issued but not served while discussions were proceeding. The Judge found, first, that the solicitor left service of the claim form until very late in the period of what he described as its extended validity, there having been agreed extensions of time for service. Having left it very late in that period, the solicitor then failed to achieve service in accordance with the requirements of the rules. It appeared that she had forgotten about the need to serve the claim form, or that she had understood the claim form to have been served in circumstances where it had simply been sent to the tax defendants’ solicitors the previous July, some eight or nine months earlier. In fact, she had not consulted the wording of the consent orders, which had provided for service of an amended claim form. When, at the end of the period, she did purport to serve a document, it was not in fact the claim form that was served but the particulars of claim. Furthermore, it was not served on the tax defendants but on their solicitors, who had been asked whether they were instructed to accept service but had not confirmed that they were so instructed.
In her evidence to the Judge the solicitor accepted that she should not have forgotten about the consent orders, but stated that she was surprised by the need for instructions from the tax defendants concerning service on their solicitors. She considered that whether a firm of solicitors accepted service was “solely a matter of policy for the law firm concerned.