THERE ARE NOW UNEXPLODED GRENADES IN YOUR FILING CABINET: SERVE PROCEEDINGS PROMPTLY AND PROPERLY

One problem with the flurry of issuing proceedings last week is that there will now be numerous actions that have been issued which are not fully ready and where service will be delayed. Remember that un-served proceedings means that there is an unexploded grenade in your filing cabinet.

THE UNEXPLODED GRENADE IN YOUR FILING CABINET

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If proceedings are not served properly, or not served within the four month period, then the situation is dire.  The situation is often far more difficult than issuing outside the limitation period.

The problem of late or inaccurate service is not a rare one. There are numerous examples of problems on this blog. The problem will be more acute even if you are allowed to issue again, you are now paying a vastly increased fee for the claim form (which the defendant will assert is prejudicial to them – and they may well be right).

THIS IS A REPEAT: BUT NOT ALL REPEATS ARE BAD

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I am repeating the 10 points made earlier this year. (I hope to do this again in four months time. But don’t rely on this. Diarise, diarise and (preferably) serve.

HOW TO AVOID “DICING WITH PROCEDURAL DEATH”: 10 POINTS RELATING TO SERVICE OF THE CLAIM FORM

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1. NOT SERVING THE CLAIM FORM IN TIME

Once proceedings are issued the safest working assumption is that you have the legal equivalent of an unexploded grenade in your filing cabinet. Four months can pass very quickly.  A lot of procedural issues arise  in those cases when panic  has set in at the end of the four month period.

2. DICING WITH PROCEDURAL DEATH: MAKING AN APPLICATION TO EXTEND TIME FOR SERVICE (BUT NOT KNOWING THE RULES ARE TOTALLY RIGOROUS).

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An application to extend time for service is often obtained without notice.  Orders made on this basis can be set aside (and often are).  Obtaining a without notice order to extend time may give a claimant a false sense of security.  However the Court of Appeal has made it clear that a claimant cannot rely on that “sense of security” argument if a defendant seeks to set aside the order to extend time. InHoddinott -v- Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203.

The Courts have described the practice of leaving service of the claim form at the last moment, and making applications to extend as “dicing with procedural death”.

LINCOLNSHIRE COUNTY COUNCIL V MOUCHEL BUSINESS SERVICES LIMITED AND R.G. CARTER BUILDING SERVICES LIMITED [2014] EWHC 352(TCC)

3. MAKING AN AGREEMENT (OR OBTAINING AN ORDER) FOR AN EXTENSION OF TIME TO SERVE THE PARTICULARS OF CLAIM BUT FORGETTING TO INCLUDE THE CLAIM FORM (OR FORGETTING TO SERVE THE CLAIM FORM).

This is a more common problem that most would believe.   I have seen several cases where claimants have obtained orders to extend the particulars of claim, but forgotten to include the (unserved) claim form in the application. Further this is precisely what happened in Bethell Construction –v- Deloitte & Touche [2010] EWHC (Judge Hodge Q.C.). The claimant agreed an extension of time for service. Served the particulars of claim when the matter did not settle but failed to serve the claim form. The action was struck out, see the discussion of the case on this blog.

4. SERVING AN UNSEALED CLAIM FORM

The claim form that is served has to be the sealed copy to be good service.

(However occasionally (and very rarely) service of an unsealed copy can benefit a claimant.)

5.NOT SERVING AT THE CORRECT ADDRESS

There are detailed rules dealing with where a defendant can be served.  Failure to follow these will lead to grief.

For an example see Murrills -v- Berlanda [2014] EWCA Civ 6.

A number of particular problem areas are discussed in the next three points.

6. NOT  KNOWING THE RULES FOR SERVING AT THE “LAST KNOWN ADDRESS”

The rules as to “last known address” are complex. The are discussed in the post “Service at last known address: More dangerous points to watch.”  In brief:

  • An address can never be a “last known address” if the defendant has never lived there.
  • A claimant must take “reasonable steps” to ascertain the current address before service can take place at a “last known address” (and there is no definition of “reasonable steps”).

7. SERVING A “PRIVATE” CLAIMANT AT A BUSINESS ADDRESS

Service of an individual, being sued as an individual, caused the claimant to come to grief in  Murrills –v- Berlanda [2014] EWCA Civ 6, see the discussion in Service of the claim form: another example of a claimant coming to grief . See also O’Hara -v- McDougal (22/11/2005) CA.

(The claimants brought an action in nuisance against Mr. McDougall the owner of their next door property. They served proceedings on the property causing the nuisance; the defendant did not live at that address and had never resided there.

The Court of Appeal categorically rejected an argument that proper service had taken place because the fact that a property was rented out made it a “place of business”. Even the fact that the rent was collected at the door of the property did not make it a place of business).

8. NOT SERVING AT THE NOMINATED ADDRESS OR ON A SOLICITOR WHO HAS BEEN NOMINATED OR STATED THEY WILL ACCEPT SERVICE

In summary:-

*           If a party gives an address for service within the jurisdiction then service must take place at that address.

*           If the defendant gives the address for service as the business address of the defendant’s solicitor then, service must take place on the solicitor. Nanglegan -v- Royal Free Hampstead NHS Trust [2002] 1 WLR 1043, CA. (subject to the exception in the case of a limited company which is discussed below)

*           If the solicitor has written stating that they are authorised to accept proceedings then service must take place on that solicitor.  Collier –v- Williams [2006] EWCA Civ 20. (again subject to the exception in relation to a limited company).

*           However the fact that a solicitor is acting for the party and has written on the defendant’s behalf prior to issue does not mean that authority is inferred. Service on the solicitor without express confirmation of authorisation to accept service is not good service, Smith -v-Probyn and PGA European Tower Ltd [2000] 2 All ER 250; Collier –v- Williams op cit.

(THE LIMITED COMPANY EXCEPTION

There is an exception, however, in the case of limited companies. Here service can take place under the Companies Act or the Civil Procedure Rules. As a result service can take place at the registered office of the company regardless of whether or not a solicitor has been nominated,  Murphy -v- Staples (part of the Bridgefield group of cases) [2003] EWCA Civ 656.   Presumably similar principles apply to limited partnerships – however there is no case law on this topic.)

See the post: The time for service and the address for service: the essential checklist.

9. FAILING TO SERVE THE PARTICULARS OF CLAIM WITH THE CLAIM FORM

Although normally the Particulars can be served 14 days after service of the claim form the Particulars must be served within the four month period. If a claim form is served at the end of the period then they are served out of time.   This caused the claimant to come to grief in Venulum Property Investments Ltd –v- Space Architecture Ltd &  9 others  [2013] EWHC 1242 (TCC)

See Service, Faults and… the Match is Over.

10. NOT HAVING A SYSTEM IN PLACE

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A simple checklist can, in most cases, prevent most of the above problems.  A good starting point would be.

OTHER POSTS ON THIS BLOG THAT RELATE TO SERVICE

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