The service of court proceedings on defendants continues to be a breeding ground for disputes. It is crucial that the proceedings (i.e. the claim form and the particulars of claim) are brought to the attention of the defendants in a particular way and within a particular timeframe.
The Civil Procedure Rules deal with the permitted modes of service. Sending by first class post to the defendant’s address is usually sufficient, but there’s plenty of room for error, so be careful! Advice should always be sought to avoid falling into any of the potential traps.
Service by email and flexibility if you don’t have lawyers?
In the recent libel action of Piepenbrock v Associated Newspapers Ltd and others [2020] EWHC 1708 (QB), a claimant, who didn’t have lawyers acting for him, served the claim form on the defendants’ solicitors by email. He did so at the last minute without having obtained confirmation that the law firm was instructed to accept service, let alone that they would do so by email. The claimant referred to his autism as one reason for the delay in serving the claim form and for his belief that, since the defendant’s solicitors had been corresponding with him, they were willing to accept service of the proceedings. The Judge commented as follows:
“The Claimant told me, at the hearing, that he and his wife had obtained and read the provisions of the CPR relating to service of the Claim Form. Although I do have sympathy for those who have to navigate the Civil Procedure Rules without any legal training, I consider that the relevant part of Practice Direction 6A, which governs service by email, and to which express reference is made in CPR 6.3, is perfectly clear. It may be that, in the haste to serve the Claim Form at the end of its period of validity, the Claimant and his wife missed (or failed to appreciate the effect of) this important provision”.
Accordingly, the Judge rejected the claimant’s explanation for his failure to adhere to the service rules finding that, in any event, the claimant’s wife had an adequate understanding of the position. The High Court held that valid service had not been effected and the claim was time-barred meaning that he was too late to pursue the claim.
Similarly in Gallagher v Hallows Associates [2020] EW Misc 7 (CC), the unrepresented claimant tried to serve proceedings on the defendant’s solicitors, but the court held that service was invalid and it was not willing to extend the time permitted for service.
These cases are reminders that just because you are acting for yourself rather than have lawyers acting for you does not mean the courts will show any leniency if you have not complied with the service rules.
Service to an address where you think the defendant is
In Ivanchev v Velli [2020] EWHC 1917 (QB) (16 July 2020), the High Court held (perhaps unsurprisingly) that placing a claim form in the mailbox for an apartment where the defendant had never lived did not constitute good service. The claimant had issued proceedings against someone who lived in the same apartment block but the claim form was sent to the wrong apartment. The Judge concluded that the claim form had never been served and therefore the claimant’s application for default judgment (i.e. judgment based on the Defendant’s failure to respond to the claim form in time) was dismissed. Instead, it was necessary for the proceedings to be re-served by the claimant.
The decision in Ivanchev can be differentiated from the decision in the recent case of EC Construction Ltd v Melt Hythe Ltd [2020] EWHC 970 (TCC) in which the Technology and Construction Court held that the claim form had been validly served by being left at a relevant address, where it had been left at the reception desk of the dental practice that shared a registered address with the defendant property development company. The address used for service was not only the defendant’s registered address but it was also the address used in the parties’ contract. The Judge commented that, in the circumstances, good service could have been affected by putting the claim form just inside the door, leaving it unattended on the reception counter or dropping it on the floor.
Conclusion
The decisions in Piepenbrock, Ivanchev and Gallagher are an important reminder that the courts consider service of proceedings as a serious and important step in litigation.
Parties should not take effective service for granted and claimants should endeavour to get service right the first time round to avoid their claim failing on a technicality. If in doubt, and in order to minimise the risks associated with defective service, parties should seek early advice from a solicitor specialising in litigation.
Catherine Penny
Elizabeth Pistak