Carl Troman, Barrister and Mediator at 4 New Square
Service of proceedings continues to be a fertile ground for disputes. Meritorious and valuable claims can fail on a technicality given how hard it is to obtain a retrospective extension of time for service of a claim form. Here are ten top tips for avoiding the pitfalls and ascertaining whether your opponent has fallen into one.
1) Don’t forget to write
Particulars of claim can be served up to 14 days after service of a claim form (CPR7.4(1)(b)) BUT must be served within the period of validity of the claim form (CPR7.4(2)). So if a claim form is served less than 14 days before the end of its period of validity there will NOT be an extra 14 days to serve the particulars of claim. This “trap for the unwary” should be avoided but, if it is not, it can be easier to get relief than in a case where a claim form has not been validly served (see tip nine below).
2) Don’t go it alone
An application can be made without notice for a prospective extension of time for service of a claim form (CPR7.6). However, this is a dangerous step to take because a defendant can apply retrospectively for that extension of time to be set aside and, if that application succeeds, the claim will be struck out even if the claim form was validly served in the extended period. The better course, if more time is needed to formulate particulars of claim, is to serve the claim form within its period of validity and agree an extension of time for the particulars of claim or make a prospective application for such an extension on notice.
3) Love lawyers
Where a lawyer has been nominated to accept service of a claim form, it must be served on that lawyer (CPR6.7(1)) but service on a lawyer acting for a defendant is not valid if they have not been nominated to accept service. Service on a lawyer is an excellent way of avoiding the dangers of getting service wrong when trying to serve the defendant themselves. It is worth asking a defendant whether they have a lawyer nominated to accept service or asking the lawyer acting for a defendant whether they are nominated to accept service. But do chase an answer and do not assume one way or the other.
4) Get personal
Personal service (CPR6.5) is effective and can conveniently be done by a process server but it is generally underutilised. It is a great way to avoid the dangers of getting service wrong when trying to serve upon an address as it can be effected anywhere. But beware that it can take some time if the defendant seeks to avoid service so do not leave it to the last minute (see tip eight below).
5) Do your homework
If effecting service by sending the claim form to an address then consult the table in CPR 6.9 carefully to check where it should go. Remember that if there is reason to believe the defendant is no longer at a particular address then the claimant is obliged to take reasonable steps to ascertain the defendant’s current address (CPR6.9(3)). It is wise to document those steps so they can be proven in future should the need arise. If the current address cannot be found then an application might need to be made for alternative service (CPR6.9(4)-(6)) so it is best not to leave this homework to the last moment (see tip eight below).
6) Members only CPR7APD5B
If suing a partnership it is a good idea to request a partnership membership statement under CPR7APD5B as the obligation is to provide the names and addresses of all the relevant partners within 14 days. That list can then be used to effect service under CPR6.9. Indeed, a court is likely to have little sympathy with a claimant who fails to request such a statement and who then complains they found it hard to ascertain an address for service.
7) What was your name again
It sounds obvious, but be sure to serve the right person and/or at the right place. Given that service is only critical when limitation has expired, years will have passed since the events of which complaint is made and so the defendant’s business may have been reorganised (think partnership to LLP or LLP to limited company) and/or moved. Whilst pre-action correspondence might be with the new business entity it may be the old business entity that is the right defendant and it may well be ineffective to serve the old entity at the address of the new entity. See Planetree Nominees v Howard Kennedy LLP (shameless plug of my handiwork) for a salutary lesson.
8) Vote none of the above
Though it is not always possible, strain every sinew to attempt service in good time before the claim form expires. That way a defendant is bound to take a point about service (see tip ten below) whilst there is still time to have another go at serving the claim form before it expires. That avoids the risk of ineffective service. Courts regularly berate those who leave service to the last moment.
9) Get out of jail (probably not free)
If service has gone wrong remember the relevant remedial rules which can be used:
- A retrospective extension of time under CPR7.6(3). Beware the very high threshold for such an order.
- Dispensing with service under CPR6.16. Beware a similar very high threshold.
- Retrospective validation under CPR6.15(2). This is probably the most helpful rule for claimants.
- General rectification under CPR3.10 in an appropriate case (see Bank of Baroda v Nawany Marine).
- Relief from sanctions under CPR3.9 where the claim form was validly served but the particulars were late.
The costs of such applications will, of course, be in the discretion of the court but unless a defendant behaves unreasonably the court is likely to visit a costs sanction upon a claim who has got service wrong.
10) What’s in an acknowledgement
Finally, remember that to take a service point a defendant must, when acknowledging service, indicate they wish to contest the Court’s jurisdiction and then apply in 14 days. Simply filing an acknowledgement which indicates an intention to defend a claim is likely to deprive a defendant of any service point and, in effect, validate even defective service (Brooks v AH Brooks).
Disclaimer: this article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
© Carl Troman of 4 New Square, October 2018.