Issue and Service

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1. INTRODUCTION

Issuing a claim form commences proceedings for all purposes referred to in the CPR and Limitation Act 1980.

Service is the process of delivery of a claim form or other document to another party in proceedings. Service of the claim form invariably lead to serious consequences for a defendant and the rules ensuring that he is served in time are taken extremely seriously by the courts.

The rules on service were changed quite substantially on 1 October 2008 in an effort to provide more simplicity, and to codify and refine much of the Court of Appeal’s machinations on the subject over the past decade.

2.  ISSUING PROCEEDINGS

2.1 Why and when to issue

It will generally be necessary to issue a claim form either because the relevant limitation period is about to expire, or because negotiations cannot be taken any further.

2.2 Where to issue

High Court or County Court

The value of a money claim must generally exceed £15,000 to issue in the High Court (£50,000 if the claim includes for personal injuries) unless there is some matter of particular legal or procedural complexity, or there is some public interest in the outcome. In reality these cases will be rare.

Which division of the High Court

In general, the Chancery Division will deal with matters relating to land; trusts; probate; bankruptcy; rectification; and intellectual property. All other commercial litigation; personal injury claims; and judicial review claims should be issued in the Queens Bench Division.

Which court

The claimant can issue in any local court if he is suing an individual but the claim may be transferred to the defendant’s home court at his request. Transfer between courts can lead to substantial delay. In any claim, before issuing in a court which is not the defendant’s home court the claimant should refer to the criteria for transfer in r 30.3.

2.3 How to issue

Proceedings are started when the court issues a claim form (r 7.2 (1)) whether or not it is served. For the purposes of part 6 (Service of Documents) “claim form” includes pre action applications or petitions.

The claim form must include an address for the defendant including a full postcode (r 6.6 (2)).

3 SERVING PROCEEDINGS WITHIN THE JURISDICTON

The rules on service can be broken down into the “where”, the “when” and the “how”.  Unfortunately the rules are not set out in an entirely logical order and there is some interrelationship between the different categories. For example, the “how” can sometimes depend on the “where”.

Different rules apply to service of the claim form and to service of other documents.

3.1 Where to serve proceedings

Other documents

The location for service of documents other than the claim form is unlikely to be a concern because the acknowledgement of service must state an address for the defendant. R 6.23 sets out the requirements.

The claim form

The claim form must be served within the jurisdiction unless the parties have contractually agreed otherwise and the claim relates to that contract (r 6.11).

Rules 6.7 – 6.10 define the four main scenarios in which service of the claim form will take place, unless:-

(a) personal service is mandatory (rule 6.5 (1)). Personal service may be mandatory by virtue of various provisions of the CPR and other enactments; or

(b) an alternative method has been specified by the Court under rule 6.15.

The four scenarios are as follows:-

SERVICE ON A SOLICITOR (RULE 6.7)

A defendant’s solicitor, or the defendant himself, may give written notification that a solicitor will accept service. If the claimant receives such a notice he cannot serve the defendant directly. If the claimant does not receive notice in this form he should serve on the defendant.

Personal service on the defendant is expressly forbidden by r 6.5 where a claimant has been notified in accordance with r 6.7. However, if personal service is compulsory, which it sometimes is (r 6. 5 (1)), then the requirement to serve personally will prevail even if a solicitor has been nominated to accept service.

The rule does not say that reference to “defendant” includes its insurer and the claimant should not assume that it will be inferred to. This means that if an insurer nominates a solicitor to accept service, the claimant should still insist on written confirmation from the defendant or the solicitor that he can accept service.

SERVICE ON A GIVEN ADDRESS (RULE 6.8)

R 6.8 permits service on a party at an address for service in the jurisdiction that the defendant has provided to the claimant. If the defendant has provided an address but then letters are returned by the Post Office the claimant may still serve on the address provided because r 6.9 does not then engage (r 6.9 (1) (c)). However, he would be wise to make enquiries to pre-empt any arguments that the defendant notified him of a change of address.

DEFAULT SERVICE (RULE 6.9)

A claimant must include an address for the defendant on the claim form. The accuracy of that address will not be tested if the defendant has provided the address; a solicitor has been nominated; or personal service can be effected.

Problems may arise where the claimant attempts to serve the defendant at an address that was not provided by the defendant, and it turns out to be incorrect.

If the defendant has not provided an address, the claimant must first consult r 6.9 (2) which provides a table of places to serve if the defendant has not provided an address or appointed a solicitor.

Service on a defendant who is a corporation or company is easily addressed by following the table in r 6.9 (2). Difficulties in practice will arise when relying on the table to serve an individual at his usual or last known residence or his last known place of business if he is being sued as a business or in the name of a partnership (r 6.9(3)). In this situation rule 6.9 provides a procedure.

The starting point is that the claimant must discover the defendant’s usual or last known address. This is a requirement in order to rely on this rule.

Next the claimant must consider whether he has reason to believe that the defendant no longer resides or carries on business at the usual or last known address. If he does not have such a reason, the claimant may serve the defendant at this address.

If he does, the claimant must take reasonable steps to ascertain the defendant’s current address (r 6.9 (3)).

If the claimant cannot ascertain the defendant’s current address by taking reasonable steps then the claimant must consider an alternative place or method by which service can be effected (r 6.9 (4) (b)).

If there is such an alternative, then the claimant must apply for an order under r 6.15 permitting him to serve there or by that method (r 6.9 (5)).

If there is no alternative, then the claimant may serve at the appropriate default address appearing in the table at r 6.9 (2) ie the usual or last known address.

This raises some potential uncertainties:

  • usual or last known address must be an address that was known to have been used by the defendant as a residence or place of business, as appropriate. In Marshall v Maggs (Collier v Williams) [2006] EWCA Civ 20 it was not reasonable of the claimant to assume that the defendant lived at an address because he had attended a business meeting there with him. Similarly a property owned by the defendant but rented out to tenants is not a residence or place of business (O Hara v McDougall (Nov 29 2004 unrep).
  • Reason to believe is likely to be defined widely and objectively and a common sense approach should be applied here. An obvious example is if the claimant has written to that address and the letters are returned by the Post Office. The passage of considerable time may be a “reason to believe” and the claimant would be wise to take reasonable steps to establish the current address before serving. If the address is the correct one then this should not be difficult to establish. If the address turns out to be incorrect then the onus is likely to be on the claimant to show why he thought that this address was the current one and why he thought it was reasonable to think this.
  • Reasonable steps have been examined by the courts under the pre October 2008 rules. Refer to the check list at fig 3 for a non exhaustive list of steps that should be considered by the claimant. As usual the court will not sympathise with a claimant who leaves these enquiries to the last minute if they are limited as a result (Mersey Dock Property Holdings v Kilgour [2004] EWRC 1638).

Considering an alternative method will include checking all correspondence from the defendant and his representatives. The existence of an insurer is an obvious alternative method and it should be asked to consent to your application. Otherwise the address of a relative, a work address, a probation officer or a social worker might qualify.

The claimant should seek guidance from the Motor Insurers Bureau if they are involved, and if in doubt apply to serve by an alternative method under r 6.15. A failed application is not a green light to serve on the last known address but, as long as the claimant has not overlooked an obvious alternative, is likely to protect him if he serves on a default address.

Serving under 6.9 (6) on a usual or last known address should be treated as a last resort, just as the rule treats it. It is very likely to be unsatisfactory as an address if reasonable steps could not confirm that it is current, and by definition the claimant had reason to believe that it is not current.

It is certainly curious that such severe consequences can follow for a defendant who has been served in these circumstances and as a result the requirements in r 6.9 are likely to be very strictly interpreted.

SERVICE ON THE CROWN

Serving on the Crown will be necessary if the claimant is suing any government department and the place of service differs for each department. R 6.10 and the practice direction accompanying part 66 set out how and where to serve on the Crown.

The claimant cannot ever personally serve the Crown (rule 6.5 (2) (b)).

3.2 When to serve proceedings

The claim form

Service of the claim form should never be left until the last minute.

The relevant date for service for complying with r 7.5 (ie serving within 4 months) has now been separated from the date of deemed service for the purpose of calculating when the defence is due (if the particulars of claim are to be served separately from the Claim form, they must still be served within the 4 month period).

SERVICE STEP

To comply with r 7.5 the claimant must take a service “step” before 12 midnight on the calendar day four months after the date that the claim form was issued.

The steps are:-

Method of service Step required
First class post, document exchange or other service which provides for delivery on the next business day Posting, leaving with, delivering to or collection by the relevant service provider
Delivery of the document to or leaving it at the relevant place Delivering to or leaving the document at the relevant place
Personal service under rule 6.5 Completing the relevant step required by rule 6.5(3)
Fax Completing the transmission of the fax
Other electronic method Sending the e-mail or other electronic transmission

 

If a claim form expires on a Saturday or Sunday, then the “step” can be taken that day. It need not be taken on the preceding Friday, and Monday will be too late.

DEEMED SERVICE

For the purpose of calculating when the defence is due service will be deemed to have taken place two days after whichever “step” is taken (rule 6.14).

Bank holidays and weekends no longer count as days for calculating deemed service.

Other documents

The “step” system applies only to the claim form and the date of deemed service of other documents is set out in r 6.26. In order to comply with any rule or direction requiring a party to serve a document, the date of deemed service of that document must be calculated according to the table at r 6.26.

3.3 How to serve proceedings

The court will normally serve the claim form but if the claimant chooses to serve it he must inform the court upon issue and ask for the defendant’s copy to be returned to him.

The claimant may only serve the claim form by certain permitted methods (r 6.3). Similar methods apply to the service of other documents and are discussed under the same headings.

1.  Personal service

Practitioners should reference the following rules before serving personally. In particular personal service cannot take place when a party has been told a solicitor is instructed to accept service.

PERSONAL SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS

The rules are divided into three broad sets of circumstances:-

1.  Circumstances in which the claim form must be served personally r 6.5 (1). The rules or the court may require that the claim form be served personally for example in committal proceedings. In these cases no other method may be used.

2. Circumstances in which the claim form cannot be served personally  r6.5 (2) where for example a solicitor is instructed by the defendant to accept service (it is difficult to see why you would want to); or where the defendant is the Crown

3. Circumstances in which the claim form may be served personally (6.5 (2)). In all other circumstances personal service is available as a method of service of the claim form. This may be attractive if the claimant can easily locate the defendant but is unsure of his correct address for service. A last known or usual address must still be entered on the claim form but the problems arising from part 6.9 will be avoided.

R 6.22 (1) sets out the same similar requirement for other documents but the rules and enactments requiring personal service may be different.

EFFECTING PERSONAL SERVICE

The claimant can personally serve the claim form or other document by leaving it with a person (r 6.5 (3) and r 6.22 (3)).

If the defendant is an individual then it must be left with that individual (r 6.5 (3) (a).

Personal service on a company or corporation can take place by leaving it with a person holding a senior position within the company or corporation (r 6.5 (3) (b)). A person who holds a senior position in a company or corporation includes a director, the treasurer, the company secretary, the chief executive, a manager or other officer of the company or corporation. For corporations that are not registered companies (local authorities etc) the mayor, chairman town clerk or similar officer may accept service.

Prudence would encourage a party to serve only an officer of the company and that their identity be established before service is effected.

If the party being served is a partnership then it must be left with a partner or someone with control of management of the partnership (r 6.5 (3) (c)).

2. First class post or DX

Service can take place by first class post, document exchange and a party no longer needs to use Royal Mail but can use “some other service which provides for delivery on the next business day” (rule 6.3 (1) (b)/6.20 (b)).

3. Leaving it at a specified place           

The claim form can be served by leaving it at any of the places specified in rules 6.7-6.10 as discussed above. The same applies to other documents under r 6.23.

4. Fax or other means of electronic communication     

The claim form or other document can be served by “means of electronic communication” which includes fax and email (6.3/6.20 (d)) but care must be taken here as the rules depend upon whether a party or his solicitor is being served. If a firm of solicitors is being sued then it is considered to be a party and not a firm of solicitors for the purpose of this rule (Michael Rebbel Thorne v Lass Salt Garvin (A Firm) [2009] EWHC 100 (QB)).

If a solicitor is accepting service, the serving party may rely on the appearance of the fax number on the letterhead, and a party may serve by email if it is stated to be used for service (6PD 4.1 (2) (a) and (b)).

If a party is serving on another party (as opposed to his solicitor) he must obtain a written indication that the party accepts service by these methods. A fax number or email address on the acknowledgement of service or statement of case is such an indication (6PD 4.1 (2) (c)) but otherwise confirmation must be obtained in writing.

Failure to obtain prior consent to serve a claim form by fax where it is required is not regarded as a minor departure from the requirements of the rules (Kuenyehia v International Hospitals Group Ltd (2006) EWCA Civ 21).

In any case, a party must check what limitations may apply – such as format or document size – before serving by email (6PD 4.2).

5. Any method specified by the court under r 6.15

The court can order that service take place by an alternative method or at an alternative place. See paragraph 2.3.4.

3.4  Avoiding and curing service problems

Service by an alternative means or at an alternative place (r 6.15)

The court may order that service can take place by an alternative method, or at an alternative place to those permitted by the rules (r 6.15 (1)). It does not matter that the claimant has already attempted to serve by a method or at a place permitted by the rules.

R 6.15 (1) requires a “good reason” before exercising the discretion. Only once the court has identified this good reason will it consider whether it should exercise its discretion.

PROSPECTIVE POWERS

Applications made under this rule before steps have been taken to bring the claim form to the defendant’s attention will often arise pursuant to r 6.9 when the claimant is unable to ascertain an individual defendant’s current address.  Compliance with the earlier steps set out in r 6.9 should convince the court that there is a “good reason” to make the order and the court will then review the circumstances when considering its discretion. Once a good reason is shown, the rest of the application must include evidence stating:-

(i) what alternative method or place is proposed; and

(ii) why the applicant believes that the document is likely to reach the person to be served by that method or at the place proposed.

RETROSPECTIVE POWERS

R 6.15 (2) now allows the court to exercise this discretion retrospectively (overturning Elmes v Hygrade Food Products Plc 2001 EWCA Civ 121)) and upon an application by the claimant, can order that steps already taken to bring the claim form to the attention of the defendant can stand as good service. This order can be made outside of the four month period or the relevant limitation period.

This rule is not a charter to correct claimant’s procedural errors and the circumstances in which discretion will be exercised will have to be exceptional. The claimant must at the very least have done something to alert the defendant to the fact that proceedings exist and that they are a party to them (Addax BV Geneva Branch v Coral Suki SA [2005] EWHC 1880 (Ch)).

The claimant must first convince the court by evidence that there is a good reason to make the order. Then, when persuading the court to exercise its discretion he must show by evidence:-

(i) what method/ place was used; and

(ii) when it was used; and

(iii) why the claimant believes that the claim form is likely to have reached the defendant (6PD 9.2 (3)).

Practice Direction 6 (9.3) includes situations which might satisfy this last requirement, and will involve evidencing that the step taken to bring the claim form to the attention of the defendant – text messages and emails are cited – is likely to have done so.

The greater simplicity and transparency of the new rule is likely to make the court even less willing to exercise its retrospective discretionary powers to cure service defects particularly when service is left to the last minute.

Application to dispense with service (r 6.16 and r 6.28)

The claimant may apply for an order to dispense with service of the claim form (r 6.16 (1)) or of other documents (r 6.28) meaning that the court can order that service of the claim form or other document is not necessary. R 6.28 is used routinely as a case management tool when pleadings are amended and it is not deemed necessary to require re service because the amended version was served with the application.

However, the claimant must show exceptional circumstances to dispense with service of the claim form (r 6.16 (1). Service of the claim form may be dispensed with retrospectively and the rule has been used successfully when there is no dispute about the fact that the claim form or a copy was received within the prescribed period, but there is a dispute about whether it was properly served in accordance with the rules.

A claimant who has failed to serve the claim form within the prescribed period by his own omission and is applying retrospectively is unlikely to persuade the court to dispense with service. A claimant cannot employ r 6.16 to subvert the rule in r 7.6 (3) that requires the claimant to show that he has taken all reasonable steps to serve the claim form but has been unable to do so(Godwin v Swindon BC 2001 4 ALL ER 641). The discretion in r 6.16 is not to excuse the claimant from serving within time, but to relieve the claimant of the need to show that he served the claim form in accordance with the rules. He still needs to show that the defendant was served with it, albeit ineffectively, and that he received it within time (Anderton v Clwyd County Council [2002] EWCA Civ 933 (3 July 2002).

So what are exceptional circumstances? This is really a question that can only be answered by the set of facts that are presented but the breach of the rules must be no more than technical and the circumstances when taken together must be exceptional in the normal sense of the word. The authorities provide some guidance:-

1. The failed attempt to serve by a permitted method will not in itself be enough to show exceptional circumstances.

2. Any prejudice to the defendant is likely to be fatal to the application

3. Any significant departure from the rules as to the permitted modes of service will mean that circumstances are not exceptional (Cranfield v Bridgegrove Ltd [2003] EWCA Civ 20).

4. Service on the defendant’s insurer is not a mere technical departure from the rules (Cranfield v Bridgegrove Ltd [2003] EWCA Civ 20).

5. The fact that the claim form that was served was a copy claim form may not be fatal.

6.  If an address is given for service then the claim form must have been sent to this address.

7. The claim form must be sealed and have a signed statement of truth. A draft claim form will never be good enough (Cranfield v Bridgegrove Ltd [2003] EWCA Civ 20).

8. The claimant’s subsequent conduct will be relevant (Lakah Group v Al Jazeera Channel [2003] EXHC 123) as well as his overall conduct and he must show that he has acted promptly in making the application to dispense with service (Godwin v Swindon BC 2001 4 ALL ER 641).

9. Sending a copy claim form for information purposes only will not in itself be enough. The claimant must have purported to serve the claim form as well. However, as long as this condition is satisfied, the fact that a copy was sent earlier may help in persuading the court that the circumstances were exceptional.

In Michael Thorne v Lass Salt Garvin (A Firm) [2009] EWHC 100 (QB) the claimant faxed the claim form to the defendant, which was a firm of solicitors, on the final day for service. The court found that the defendant was not acting as its own legal representative and therefore service by fax was not good service. The consequential application to dispense with service was refused and the fact that the defendant was a firm of solicitors was not found to be an exceptional circumstance. That fact was simply one of the factors which had to be taken into account in reaching a value judgment about whether or not the case was exceptional and it would be unjust to dispense with service.  It was also relevant that the attempt at service had been made on the last possible day permitted, had not been in accordance with the CPR and no prior notification of a claim had been made.

This case is useful in illustrating that all of the circumstances will be taken into account when deciding if they are “exceptional”.

See Phillips and another v Symes and others [2008] UKHL 1; [2008] WLR (D) 6

for a case in which the circumstances were found to be exceptional. Service was to take place outside the jurisdiction and errors were made by the court and the Swiss authorities so that the English language claim form was not served on the defendant. The German language claim from and particulars of claim were. The court dispensed with service of the claim from under r 6.9.

Application to extend time for service

The claimant can apply under r 7.6 (2) for an extension of time to serve the claim form and generally this should be done within the period prescribed for service. If done in advance of the expiration of the period the claimant must show a “very good reason” and not a “weak reason” to extend time (Hashtroodi v Hancock [2004] Civ 652).

If the claimant is out of time to serve the claim form, an application to extend the time for service may be made retrospectively. The claimant must show that he took all reasonable steps to serve the claim form, and that he acted promptly in applying for an extension under the rule (r 7.6 (3)). Acceptable excuses will not include difficulties in preparing pleadings (Kaur v CTP Coil Ltd [2001] C.P. Rep. 34 CA), and an admission of liability will not help the claimant (Vinos v Marks and Spencer Plc [2001] 3 ALL E.R 784).

Avoiding service problems

1. The claim form should never be served with less than one month to spare (particularly if the claimant is outside the primary limitation period).  Sufficient time should be allowed to receive an acknowledgement of service whilst the claim form is still live. 14 days after deemed service the claimant will either (1) have received an acknowledgement of service (2) entered judgment (3) have received notification that service is disputed.

2. The claim form should always be served as soon as possible and if necessary an extension of time sought for service of the particulars of claim. Orders to extend time to serve the particulars of claim are easier to come by.

3. If service problems are anticipated then an application should be considered at an early stage under r 6.15 (1) for permission to serve by an alternative method. It is reasonable to assume that it is more likely to be permitted in advance than retrospectively under r 6.15 (2).

4. The claim form should be sent for information only (not served) to the defendant, its solicitor and insurer as soon as it is issued.

3.5 Dismissing proceedings that have not been validly served

If the defendant believes that the claim form has not been validly served within the prescribed period then he may make an application to dismiss the claim. This is a particularly attractive option if the relevant limitation period has expired. Even if it has not then there is some tactical and psychological advantage in obtaining a costs order against an opponent at an early stage. The application is likely to be greeted with a cross application to dispense with service or extend time for service retrospectively, or for permission to serve by an alternative method. The defendant’s evidence should anticipate this.

3.6 Certificates of service

Where a claim form is served a certificate of service must be filed at court within 21 days after service of the particulars of claim. However, this is not necessary if an acknowledgement of service has been filed within that time (rules 6.17 (2) (a)). It is not necessary to file a further copy of the served documents with the certificate of service.

4 SERVING PROCEEDINGS OUTSIDE THE JURISDICTON

The rules relating to service outside the jurisdiction are vast and complex and outside the scope of this guide. In general, permission of the court will be required to serve a claim form outside the jurisdiction. Different rules operate depending on the county to be served and in particular whether the other jurisdiction is Scotland or Northern Ireland in which case it is likely that permission will not be needed.

 

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