In court proceedings, certain documents have to be ‘served’ on the opponent or their solicitors. There are very specific rules under the CPR on methods of service.
We have had a number of recent cases dealing with ineffective service.
Solicitors not nominated for Service
Under Rule 6.7(1), a claim form must be served on the address of a solicitor where, either:
a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or
b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction
It is widely known and reported in case law that merely having communications with a solicitor is not sufficient. You must obtain written confirmation that they will accept service on behalf of their client. This is always prudent to check early on in the case and in absence of positive confirmation, it is wise to serve on the other party directly.
Pipenbrock v Associated Newspapers Limited and Others (2020)
This was a defamation claim by litigants in person. It was issued on 11th October 2019. They then e-mailed the solicitors for the defendants (ACK Media Law and Pinsent Masons) on 10th February 2020 purporting to serve the Claim Form and Particulars of Claim. When both firm of solicitors denied effective service, the same was re-sent by post but clearly the time limit for doing so (4 months), had now expired.
The court held that service was not valid as neither condition under CPR 6.7(1) had been complied with. Further service by e-mail was not permitted (as none of the Defendant has indicated they were prepared to accept service by e-mail further to Practice Direction 6A, section 4.1 (another trap for the unwary).
The court also refused the applications for
- retrospective extension of time under CPR 7.6
- alternative service under CPR 6.15
- dispensation of service with under CPR 3.10
This may seem unduly harsh on the claimant who was acting in person and considered he had read and understood the application of the rule under the CPR. However, there should clearly not be one set of rules for the represented litigants and another for the unpresented. The court held that the rules in CPR 6 are clear and capable of applicable by even lay claimants.
Gallagher v Hallows Associates (2020)
This was a professional negligence claim. In August 2018 the claimant’s solicitors did the right thing and asked the indemnity insurers for the Defendant if they were instructed to accept service.
However, before a positive response was received, the claim form was issued protective on 4th June 2019 and served on the Defendant’s solicitors on 19th September 2019. On 7th October 2019 the Defendant’s solicitors confirmed that they had no such instructions to accept service, and by this time, the 4 month period had expired. Unknown to the Claimant, the Defendant had gone bankrupt on 30th June 2019.
The court confirmed that the service was not valid and it was noted that no application for an extension of time under CPR 7.6 was made.
Exceptions for Limited Companies
There is an exception to CPR 6.7 – you can validly serve a limited company at its registered office (as per the Companies Act) regardless of whether a firm of solicitors has been nominated to accept service (Murphy -v- Staples (part of the Bridgefield group of cases) (2003)) but obviously do check that you have the correct and most recent registered office!
On 23rd March 2020 England entered into mandatory lockdown and many offices became empty as their entire workforce was shifted to working at home.
Strictly speaking, service is normally deemed valid if you have complied with action required to effect service (e.g. the posting of the court document) and is regardless of whether it is in fact received.
However, the court recently exercised their discretion in correcting a procedural default arising from the difficulties posed by COVID.
Stanley v London Borough of Tower Hamlets (2020)
This was a claim against the local authority for breach of data protection and Article 8 rights.
Proceedings has been issued protectively on 4 December 2019. The Claim form and Particulars were sent in the post on 25th March 2020 (so two days after lockdown) and therefore deemed served on 27th March 2020. For obvious reasons, no Acknowledgment of Service was filed (being due on 9th April 2020) as the local authority had not been in their office to receive the claim and so were none the wiser.
Default judgment was applied for and granted on 17th April 2020.
In granting the relief sought by the local authority, the judge held that:
“The world shifted on its axis on 23 March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the council to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served.”
The court held that there was good reason under CPR 13.3 (1) to set aside the default judgment and that relief should be granted following the Denton principles bearing in mind PD 51ZA.
In the current climate, it is generally sensible to agree with the opponent that service by e-mail is acceptable to avoid the issues which arose in this case.