THAT CASE WHERE A CLAIMANT’S LAWYERS FAILED TO SERVE THE CLAIM FORM PROPERLY (THE SECOND TIME AGAINST THE SOLICITORS WHO WERE NEGLIGENT ON THE FIRST OCCASION)
If ever a case illustrated the dangers of not appreciating the rules as to service of the claim form. Dzekova -v- Thomas Eggar LLP  EWHC 2600 (QB) which we have looked briefly before. It reveals a sorry tale of woe and yet another case of problems with service. This time it happened to a claimant twice. The first time in a personal injury action. The second time in the professional negligence action whilst suing her former solicitors for failures in service of the claim form in her first action.
WEBINAR ON THE CLAIM FORM LATER THIS MONTH
On the 24th September 2021 I am giving a webinar looking at the key cases in relation to problems with service of the claim form over the previous 12 months. Booking details are available here.
The webinar looks at recent cases and identifies the problem areas so that litigators can learn from these cases and not their own mistakes. The fact that the Thomas Eggar case was decided six years ago and there is still a “regular crop” of decisions on late and mis-service of the claim form shows that this is an issue that litigators have to be fully on top of.
THE IRONY AND THE AGONY IN THE THOMAS EGGAR CASE
THE FIRST ACTION: SERVE LATE AND PERMISSION IS SET ASIDE
The claimant was bringing an action against her former solicitors. The irony of this case is that her case was based on a failure to serve the claim form in an earlier action.
- The claimant was injured in 2004. The initial proceedings were issued the day before the expiry of the limitation period.
- The claimant then sought an extension of time for service of the claim form.
- The extension was granted initially but later set aside. Permission to appeal was refused.
THE SECOND ACTION: WAIT UNTIL THE END OF THE PERIOD AND THEN SERVE AT THE WRONG ADDRESS
We have the same story. A negligence action was begun against the initial firm of solicitors, shortly before the expiry of the six year limitation period.
The new solicitors almost seemed anxious to repeat the mistakes of the past. The claim form was served two days before its expiry. The trouble was, the court found, it was served at the wrong address.
THE RELEVANT RULES
The relevant rule is CPR 6,8
“5. Rule 6.8 CPR provides, so far as material:
“(a). The defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK … and which the defendant has given for the purpose of being served with the proceedings …”
If the defendant has not given such an address, then CPR Rule 6.9 requires the claim form to be served; the defendant being a company registered in England at the “principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim”.
6. It is common ground that the Crawley office did not come within the provisions of 6.9″
HOW THE CLAIMANT CAME TO SERVE INCORRECTLY
Prior to serve the claimant’s solicitor spoke to the PA to the managing partner. She was asked for an address for service of some documents. She confirmed that the Gatwick office was the principal place of business. However she did not know the proceedings were against Thomas Eggar or that it was a matter of formal service. The judge found that the PA had not given an address “for the purpose of being served with proceedings”.
- She did not know that the principal place of business was a term of art. She was not giving an address for the purpose of being served with proceedings.
- All she knew was that the claimant wanted to serve documents. She did not know the claim was against Thomas Eggar.
“An address which “the defendant has given for the purpose of it being served with 7 proceedings” is, in my judgment, a term of art. It is not an address where a helpful PA, not knowing what proceedings are to be served, much less that they are to be served on the firm itself in response to a question asking for the principal place of business, et cetera, answers that if the documents were confidential, they should be served at the Gatwick office.”
” Mr Foy QC, when this point was analysed in argument, submitted that it is enough to say something about proceedings, mention particulars of claim and that the documents are confidential. I am afraid I disagree. That does not comply with the requirements of Rule 6.8. Therefore, before one gets to the issue of Ms Foulger’s authority, I find that there was no compliance with Rule 6.8(a).”
DID THE PA HAVE AUTHORITY?
The judge found that the PA did not have authority.
“20. I fail to see how anybody at the defendant firm represented by words or conduct to Mr Cooney that Ms Foulger had authority to give an address for the purpose of being served with the proceedings, pursuant to Rule 6.8(a). The fact that Ms Foulger was 8 a PA and tried to be helpful, in circumstances where she had no actual authority to give an address for service, cannot in my judgment impute to the defendant any representation by words or conduct that she did have the authority to give such an address. Indeed, the whole content of her conversation, looked at in the round, was that she was trying to be helpful as the Master said, but she did not know that the claimant’s solicitors wanted an address for the purpose of being served with proceedings against them and, in asking whether the documents were confidential, suggested an address to which confidential documents could be sent. Nor is the fact that she had authority to say where to serve confidential documents anything like sufficient.
21. Finally, Mr Foy submitted that she was the person put forward by the defendants to answer the query; but the query was only about serving some documents, not about service of a claim form or proceedings or on the defendants themselves. I find that the Master was wrong in making the finding that Ms Foulger had the relevant authority, apparent or ostensible”
THE SAME CLAIMANT: TWO CASES WHERE SERVICE OF THE CLAIM FORM FAILED
This case highlights the profound and real dangers of leaving service of the claim form until the last minute. It is risky, dangerous and foolhardy.