WHEN A CLAIMANT’S SOLICITOR WAS “SURPRISED” ABOUT THE RULES RELATING TO SERVICE OF THE CLAIM FORM (THIS DIDN’T END WELL)
A number of people have kindly written to point out that issues relating to service of the claim form are in the news at the moment. The subject may have an interest beyond those of us involved in civil procedure. However it remains one of the major problem areas in litigation. Sometimes this is due to an error, here we look again at a case where things went wrong because the claimant’s solicitor had a mistaken view as to the basic rules relating to service of the claim form.
“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.”
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.
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  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.
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.