SERVICE OF THE CLAIM FORM: WHERE, AND WHY DO THINGS GO WRONG? THE LULL BEFORE THE STORM?
It has been just over four weeks since the previous post on issues relating to service of the claim form. I thought I would take advantage of this lull to remind people potential issues relating to service of the claim form (this is far from being for the first time I’ve written on this – but I will stop writing about this once we have had a whole year without claim form problems).
SERVICE OF THE CLAIM FORM:AN UNFORGIVING AREA OF PROCEDURE
The service of proceedings is obviously an important stage in the litigation process. For the claimant it is a crucial time. This is a highly unforgiving area of procedure. Mistakes cannot be put right simply and, in many cases, the Court does not have the general discretion to remedy problems by reference to the Overriding Objective. To survive the Claimant must have a rigorous system and checklist in place to ensure proper service is taking place. Put simply if you do not have a rigorous system in place for:
(1) Ensuring that service takes place well within the time allowed.
(2) Ensuring that service takes place at the correct address.
Then, almost inevitably, you are going to have problems at some time. This section looks at the rules relating to service of the Claim Form and the Particulars of Claim within the jurisdiction.
THE PROBLEM AREAS
There are a number of major issues in relation to service.
(1) Serving within the requisite time period.
(2) Serving the right defendant.
(3) Serving at the right address.
PART 7 PROCEDURE: SERVING WITHIN THE RELEVANT TIME PERIOD
The Claim Form When the Claim Form is to be served within the jurisdiction the claim form must be served ((that is sent) within four months after the date of issue, as outlined in CPR 7.5
THE PARTICULARS OF CLAIM
The Particulars of Claim can be served at the same time as the Claim Form. If they are not then they must be served on the defendant within 14 days after service of the claim form. (CPR 7(4) (1)). Bute note that CPR 7(4)(2) states that particulars of claim must be served on the defendant no later than the latest time for serving a claim form. That is the Particulars must be served within the 4 month period
THE IMPORTANCE OF PROMPT AND EARLY SERVICE
Most of the recently reported cases are examples of the profound danger in leaving the service of proceedings until late in the four month period allowed. The most prudent course of action is to serve at once. Even if there are good reasons for not being able to serve the Particulars of Claim this does not mean that the Claim Form cannot be served. The safe course of action, in these circumstances, is to serve the Claim Form at once and apply to court for an extension of time for service of the Particulars of Claim.
SERVING THE RIGHT DEFENDANT
It is prudent to check the identify of the defendant prior to issue and service. Prior to issue it is wise to verify the precise identity of the defendant. In the case of a limited company it is worthwhile carrying out a company search to confirm the company’s status and registered office.
GETTING THE PARTIES RIGHT
CPR 6.5(2) states that where a party gives an address for service within the jurisdiction such address must include a full postcode unless the court orders otherwise.
The Practice Direction at Part 16 imposes a number of very specific obligations in relation to the defendant’s address:
- The claim form must include an address at which the claimant resides or carries on business. This obligation applies even though the claimant’s address for service is the business address of his solicitor.
- Where the defendant is an individual the claimant should (if he is able to do so) include in the claim form an address at which the defendant resides or carries on business. Again this obligation applies even though the defendant’s solicitors have agreed to accept service on the defendant’s solicitor.
- Any address for service which is provided must include a postcode unless the court orders otherwise (Postcode information can be obtained from www.royalmail.com)
- If the claim form does not show a full address, including postcode, at which the claimant(s) or defendant(s) reside or carry on business, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has disposed with the requirement to do so. The court will notify the claimant. This is potentially a major problem area.
SERVING AT THE RIGHT ADDRESS
WHEN MUST SERVICE TAKE PLACE ON THE DEFENDANT’S SOLICITOR?
The first thing that the claimant must review is whether, during the course of the action, a solicitor’s address has been given for the address of service or a solicitor has written to state that they are authorised to accept service of proceedings in this action. A failure to review the file and consider this issue could be fatal.
* If a party gives an address for service within the jurisdiction then service must take place at that address.
* If the defendant gives the address for service as the business address of the defendant’s solicitor then, service must take place on the solicitor. Nanglegan -v- Royal Free Hampstead NHS Trust  1 WLR 1043, CA. (subject to the exception in the case of a limited company which is discussed below)
* 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. (again subject to the exception in relation to a limited company).
* However 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; Collier –v- Williams op cit.
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. Presumably similar principles apply to limited partnerships – however there is no case law on this topic.
GETTING THE ADDRESS CORRECT
It is crucial that the Claim Form is served at the correct address. Failure to properly serve could lead to the action failing without any consideration of the merits at all. All the Court of Appeal cases to date indicate that the courts have little sympathy for claimants who have hit difficulties because of problems with service, particularly if these problems are partially self-inflicted.
SERVICE ON THE DEFENDANT: THE ADDRESS FOR SERVICE
Having established that service need not be on the defendant’s solicitor the claimant then has to consider where the proceedings can be served.
* A limited company can always be served at its registered office under Section 725 of the Companies Act 1985, see Murphy –v- Stables above.
SERVICE AT A PLACE OF BUSINESS
A defendant, sued as the proprietor of a business or being sued in the name of a firm can be served at the place of business or last known place of business. The meaning of “place of business” was considered by the Court of Appeal in O’Hara -v- McDougall EWCA Civ 1623 (CA 22nd November 2005).
The claimants brought an action in nuisance against Mr. McDougall the owner of their next door property. They served proceedings on the property causing the nuisance; the defendant did not live at that address and had never resided there.
The Court of Appeal categorically rejected an argument that proper service had taken place because the fact that a property was rented out made it a “place of business”. Even the fact that the rent was collected at the door of the property did not make it a place of business.
CAN A “NON-BUSINESS” DEFENDANT BE SERVED AT A PLACE OF BUSINESS? THE OPEN ISSUE
The Circuit Judge had decided the O’Hara case on an additional ground which the Court of Appeal did not have to consider. The Circuit Judge held that service was not valid because the rules only permitted service at a place of business when the defendant was being sued as a “Proprietor of a business”. The claimants’ claim was in nuisance on the grounds that the defendant was the owner of a property. The defendant was not being sued as the proprietor of a business. As a result the Circuit Judge held that proper service could not have taken place in any event.
This issue was not considered by the Court of Appeal. However it is a factor that claimants and defendants must bear in mind when considering whether or not proper service has taken place in any action.