COVID REPEATS 27: AVOIDING A SERIOUS TRAP: WHEN (AND WHEN NOT TO) SERVE THE CLAIM FORM ON A SOLICITOR: (YOU REALLY HAVE TO KNOW THIS)

The post yesterday on service of the claim form has caused a slight change of plan for this series.  Today we are going to look again at the rules relating to service of the claim form on a solicitor.  We have looked at the problem of service on solicitors many times, including several cases where claimants have come to grief.  Anyone proposing to serve on a solicitor must know the basic rules. In some circumstances it is mandatory to serve at the solicitor’s address. In other cases serving on a solicitor is a major mistake.   This is a point often overlooked.

 

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 (which we will look at below).  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.

 

THE OBSERVATIONS IN ORAN

In Oran Environmental Solutions Ltd & Anor v QBE Insurance (Europe) Ltd & Anor [2020] EWHC 1271 (Comm) Mrs Justice Cockerill was considering an argument that service on a solicitor who had been communicating with the claimant on behalf of a defendant, but who had never been nominated or stated that they would accept service, was good service.  It clearly was not good service.

    1. So far as concerns service on Beale & Co the ineffectiveness of this attempt at service is made clear by the wording of CPR 6.7(1) which says in terms that this is only effective where either:
“(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 …..”
    1. That requirement for an indication that the solicitors are not merely instructed, but, critically, are instructed to accept service, has been reiterated in numerous authorities, for example; Brown v Innovatorone plc [2009] EWHC 1376 (Comm), [2010] 2 All ER (Comm), paragraphs 18 to 33 (Andrew Smith J); and Collier v Williams [2006] EWCA Civ 20[2006] 1 WLR 1945, where at paragraph 59 Dyson LJ said:
“Because the claimants had not been told by [the solicitors] that they were acting on behalf of the defendant and were authorised to accept service, there was no solicitor “acting” for the defendant within the meaning of CPR r 6.5(6) : there was no solicitor acting so that he or she could be served.”
  1. If a party wishes to be able to serve on a party’s solicitors it is therefore necessary to establish that those solicitors do have such instructions. It seems very odd that in this case this had not been done at a very much earlier stage – but it appears that it had not. Neither the Claimants, nor Markel Law, nor BPS Law (in the short time they had been instructed) had ever asked Beale & Co whether they were instructed to accept service on behalf of the Second Defendant, and neither Beale & Co nor the Second Defendant had ever indicated to the Claimants, Markel Law or BPS Law that they were instructed to accept service of the claim form on behalf of the Second Defendant.
  2. Accordingly, service of the claim form on Beale & Co (by whatever means) was not valid.

AN EXAMPLE OF THINGS GOING WRONG

The fact that there are major misconceptions about the rules relating to service can be seen in the judgment in Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch), where  the very basic errors made by the claimant’s solicitor in relation to service of the claim form were held to amount to “misconduct” (albeit in the context of a claim to protect a lien).  In particular 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

THE PROBLEM IN HIGGINS

The judgment shows 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.

  1. 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.
  2. 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.