12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW: AN UPDATE
The recent Court of Appeal decision in Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors  EWCA Civ 14 highlights the need for constant awareness of issues relating to service of the claim form. It is an area full of traps for the unwary. A matter made worse by the tendency for claimants to “dice with procedural death” in relation to late service, or failing to consider service fully and properly. I have updated the post on this topic to deal with more recent cases and developments.
“Where a party issues protective proceedings hard up against the expiry of the limitation period, it is expected to pursue those proceedings promptly and effectively; and if it subsequently seeks and obtains orders extending time for the service of the Claim Form or Particulars of Claim without notice to the other party, it dices with procedural death. These simple propositions should be known to all professionals conducting litigation.”
TWELVE KEY PROBLEM AREAS
1. SERVING BY EMAIL WHEN THE DEFENDANT HAS NOT SAID THEY WILL ACCEPT SERVICE BY EMAIL
We have seen in the judgment today that this is not a mere technicality. Unless a party (or nominated solicitor) has stated they will accept service by email then this is not good service. Further the courts do not look generously at applications under CPR 6.15 and will not, readily, declare that such service amounts to good service.
2. NOT READING THE RULES
It is clear from the majority judgment in Barton -v- Wright Hassall LLP  UKSC 1 service by email in these circumstances is not good service. t The problem here was not caused by a litigant in person mis-reading the rules, but by not knowing the rules. However, as the plethora of cases reported on this blog show, this failure to read the rules and comply with the most basic requirements is not necessarily the sole preserve of litigants in person. Nor is the practice of leaving service until the very last moment. The vast majority of these cases involve errors by lawyers.
3. NOT SERVING THE CLAIM FORM IN TIME
Once proceedings are issued the safest working assumption is that you have the legal equivalent of an unexploded grenade in your filing cabinet. Four months can pass very quickly. A lot of procedural issues arise in those cases when panic has set in at the end of the four month period.
4. DICING WITH PROCEDURAL DEATH: MAKING AN APPLICATION TO EXTEND TIME FOR SERVICE (BUT NOT KNOWING THE RULES ARE TOTALLY RIGOROUS).
An application to extend time for service is often obtained without notice. Orders made on this basis can be set aside (and often are). Obtaining a without notice order to extend time may give a claimant a false sense of security. However the Court of Appeal has made it clear that a claimant cannot rely on that “sense of security” argument if a defendant seeks to set aside the order to extend time. InHoddinott -v- Persimmon Homes (Wessex) Ltd  EWCA Civ 1203.
The Courts have described the practice of leaving service of the claim form at the last moment, and making applications to extend as “dicing with procedural death”.
See also Qatar Investment And Projects Holding Co & Anor v Phoenix Ancient Art S.A.  EWHC 2243 (QB), discussed here.
5. MAKING AN AGREEMENT (OR OBTAINING AN ORDER) FOR AN EXTENSION OF TIME TO SERVE THE PARTICULARS OF CLAIM BUT FORGETTING TO INCLUDE THE CLAIM FORM (OR FORGETTING TO SERVE THE CLAIM FORM).
This is a more common problem that most would believe. I have seen several cases where claimants have obtained orders to extend the particulars of claim, but forgotten to include the (unserved) claim form in the application. Further this is precisely what happened in Bethell Construction –v- Deloitte & Touche  EWHC (Judge Hodge Q.C.). The claimant agreed an extension of time for service. Served the particulars of claim when the matter did not settle but failed to serve the claim form. The action was struck out, see the discussion of the case on this blog.
6. SERVING AN UNSEALED CLAIM FORM
The claim form that is served has to be the sealed copy to be good service. Following the decision in Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors  EWCA Civ 14 it is unlikely that this error can be rectified by an order under CPR 3.10, 6.15 or 6.16.
It is doubtful whether the decision in Citysprint UK Ltd v Barts Health NHS Trust  EWHC 2618 (TCC) survives the Court of Appeal decision in Ideal Shopping.
7.NOT SERVING AT THE CORRECT ADDRESS
There are detailed rules dealing with where a defendant can be served. Failure to follow these will lead to grief.
For an example see Murrills -v- Berlanda  EWCA Civ 6.
A number of particular problem areas are discussed in the next three points.
8 NOT KNOWING THE RULES FOR SERVING AT THE “LAST KNOWN ADDRESS”
The rules as to “last known address” are complex. The are discussed in the post “Service at last known address: More dangerous points to watch.” In brief:
- An address can never be a “last known address” if the defendant has never lived there.
- A claimant must take “reasonable steps” to ascertain the current address before service can take place at a “last known address” (and there is no definition of “reasonable steps”).
9. SERVING A “PRIVATE” CLAIMANT AT A BUSINESS ADDRESS
Service of an individual, being sued as an individual, caused the claimant to come to grief in Murrills –v- Berlanda  EWCA Civ 6, see the discussion in Service of the claim form: another example of a claimant coming to grief . See also O’Hara -v- McDougal (22/11/2005) CA.
(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).
10. NOT SERVING AT THE NOMINATED ADDRESS OR ON A SOLICITOR WHO HAS BEEN NOMINATED OR STATED THEY WILL ACCEPT SERVICE
* 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.)
11. FAILING TO SERVE THE PARTICULARS OF CLAIM WITH THE CLAIM FORM
Although normally the Particulars can be served 14 days after service of the claim form the Particulars must be served within the four month period. If a claim form is served at the end of the period then they are served out of time. This caused the claimant to come to grief in Venulum Property Investments Ltd –v- Space Architecture Ltd & 9 others  EWHC 1242 (TCC)
A decision favourable to the claimant can be found in the case of Ellis -v- CCA Police, discussed here.
12. NOT HAVING A SYSTEM IN PLACE
A simple checklist can, in most cases, prevent most of the above problems. A good starting point would be.
- Service of proceedings the “essential checklist”.
- Service of proceedings: adding to the essential checklist
OTHER POSTS ON THIS BLOG THAT RELATE TO SERVICE
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good servic