|An article from solicitors Brodies LLP-Amina Jamil, which may be of interest.
Parties often think that once a claim is filed with the Court, the tricky part is over – however that is not always the case! A claim (and other litigation documents) must be ‘served’, meaning that the serving party must take steps to formally bring the document to the other party’s attention. This can often be more complicated than simply posting or emailing the document, as shown in recent case law where discussion continues as to what constitutes valid service.
How to effect proper service
The following relates to service of documents within the jurisdiction of England and Wales. We have provided an overview of service of English documents outside of the jurisdiction following Brexit in a previous blog .
Claim Form A Claim Form, once issued, must be served on the defendant within four calendar months from the date of issue (this is extended to six months if serving outside of the jurisdiction). Civil Procedure Rule (“CPR“) 6.3(1) sets out the permitted methods of service for a claim form, which include personal service or first-class post (note that this does not include email). The Claim Form is served at the address provided by the Defendant for service – for a company this is usually its registered address. It is also possible to serve on a Defendant’s solicitors within the jurisdiction, provided that they have confirmed in writing that they are instructed to accept service of proceedings.
If in doubt, it is prudent to serve a claim on a Defendant directly, as well as its solicitors.
It is important to remember that service of a Claim Form does not actually occur when the Claimant takes steps to serve it. Rather, a Claim Form is deemed served on the second business day after the step to serve it was taken (for example, the second business day after it was placed in the post box). It is the date of deemed service which is used to calculate the subsequent procedural deadlines.
Other documents A document, other than a claim form, can be served by a number of methods including:
- First class post;
- Document exchange;
- Personal service; and
- Fax or other electronic method.
One of the key documents for the purposes of commencing a claim, other than a Claim Form, is the Particulars of Claim, which sets out the factual and legal basis of the claim, together with any supporting documents. CPR 6.26 summarises the deemed date of service which differs depending on the method of service:
Deemed date of service
First class post
The second day after step was taken provided it is a business day, otherwise the following
The second day after step was taken provided it is a business day, otherwise the following business day
Delivering the document to, or leaving it at a permitted place
If the step is taken before 4:30pm, that day, otherwise the following business day
If the transmission of the fax is completed on a business day before 4:30pm, that day, otherwise the following business day 2022-06-17 09:59:41+00:00
Other electronic method
If the email is sent on a business day before 4:30pm, that day, otherwise the following business day
If the document is served personally before 4:30pm on a business day, that day, otherwise the following business day
For there to be proper service via fax or other electronic means, prior written indication is required confirming that service of documents would be accepted by that method.
Despite the detailed rules of service in CPR 6, as case law shows, it is easy to fall foul of the rules, which runs the risk of having a material impact on the claim:
Express acceptance of service by email is required
In McAlpine Ltd v Richardson Roofing Co Ltd , it was held that there had not been valid service of the Particulars of Claim. Shortly before the deadline for service of the Particulars of Claim, the Particulars were sent by email to the Defendant’s solicitors. After the solicitors stated that this was not proper service, a week later, a further copy was served on the solicitors by hand. The Claimant then sought a declaration from the Court that the original service was valid, or alternatively, that an extension should be granted so as to allow for the later service. The Claimant relied on what it said had been a previous indication in writing that the Defendant’s solicitors would accept service by email.
The Court rejected the Claimant’s arguments that: (i) there had been a previous indication in writing; and (ii) that the notice of acting (which contained an email address) was a sufficient indication. There had been no ‘explicit’ indication in writing that service would be accepted by email. In light of this, if it wished to serve by email the Claimant should have written to the other party to confirm whether acceptance by email was acceptable. The judgment did not address whether an extension should be
This decision demonstrates that the Courts will expect Claimants to have followed the rules on service strictly, even where it is clear that the Defendant or its solicitors in fact received the Claim.
A physical address is required
Of course, in order to be able to serve documents correctly, the serving party needs to know its opponent’s address for service. In Axnoller Events Limited v Brake and another , the High Court confirmed that parties to litigation are required to provide a physical address for service. This case concerned the party’s address for service generally, for receipt of documents including a third-party debt order and a writ of possession.
Under CPR 6.23, parties to proceedings must give an address, including a full postcode, at which they may be served with documents. In this case, the Defendants (who were representing themselves), had moved and did not want their opponent to know their new address. However, they were willing to be served by email and to disclose their address to the Court and solicitors.
The Court held that the Defendants’ proposal did not satisfy the relevant rules. While a Court had the power to withhold one party’s address from another, there had to be sufficiently strong reasons to do so, which did not exist here.
The Court also considered whether “the rules should continue to require a physical address, or whether an email address should be considered sufficient for service”. However, it was concluded that this was a matter for the Rules Committee rather than the Courts.
What to do if a document is not validly served
- Generally, a party is not obliged to correct another party’s mistakes (or to bring a mistake to their attention). However, the Courts will carefully consider the specific facts of a matter and whether the Defendant could be held to have contributed to the mistake.
- If you are the serving party and have not validly served a document, it is possible to simply re-serve the document correctly if you are within the time period for doing so. Otherwise an application to Court may be required, either to apply for an extension to the time for service and/or relief from sanctions.
- If the Claimant can show that it is impossible to serve the Defendant effectively (or that they are not co-operating), an application can be made to the Court to assist with difficulties in serving a Claim Form and/or to seek an order for substituted service.
Brodies LLP – Amina Jamil
Reposted by kind consent of:
Chris Booth – Palatine