ANOTHER CLAIM FORM NOT SERVED PROPERLY: SERVICE ABROAD AND SERVICE ON A SOLICITOR

In Transportes Viana E Fernandes LDA -v- Baban & others (Brighton County Court, 15th January 2015)*  His Honour Judge Simkiss overturned the order of the District Judge in circumstances where the claim form had not been served properly.  The claim was struck out because of service errors. (* available on Lawtel).

“…  the rules have to be interpreted and if it not open to interpret them in a way which will lead to uncertainty then the remedy is to vary the rules and not interpret them beyond the scope of legitimate construction…”

THE CASE

The claimants had been involved in an accident with the defendant’s lorry and were making a claim for care hire.

  • The defendant’s solicitors had written stating that service should take place on them.
  • Instead the claimant served on the defendant by post in Portugal.
  • The defendant applied to strike out the claim on the grounds that service had not taken place in accordance with Portuguese law.

KEY POINTS

  • The burden was on the claimant to show that the claim form had been properly served.
  • The claimant had not established this and the action was dismissed.
  • The fact that the claimant’s solicitor had made a mistake in relation to service did not amount to “exceptional circumstances”.

THE HEARING BEFORE THE DISTRICT JUDGE

The district judge is reported as taking  “dim view” of the application on the grounds that.

  • Solicitors had invited service.
  • The limitation period had not expired.

THE APPEAL TO THE CIRCUIT JUDGE

There were three issues:

  • Who had the burden of proving service took place in accordance with Portuguese law.
  • Would the claimant be able to apply retrospectively under CPR 6.15 for the court to declare that service had been affected by some other means..
  • Was the district judge wrong not to allow an adjournment to allow evidence of the relevant law.

THE FINDINGS OF THE CIRCUIT JUDGE

  • The burden of proof in establishing proper service lay with the claimant.

“Where a party seeks to enter a default judgment it must satisfy the court that it is entitled to that judgment and therefore the burden of proving correct service falls on that party.”

  •    The claimant had not established this and could not prove it was properly served.
  • The court could dispense with service in “exceptional circumstances”.
  • The fact that a party had made a mistake did not justify alternative service for some other reason.
  • It did not make any difference that a new claim form could be issued.

“in my judgment the rules cannot be circumvented in this way simply to correct a mistake made by the solicitor at an earlier stage”

THE LESSON: JUST SERVE ON THE SOLICITORS WHO SAID THEY WOULD ACCEPT SERVICE 

In that case the claimant, for reasons that were never made clear, ignored the easy option of serving upon the solicitors who had stated that they would accept service.

THE CLAIMANT WAS PROBABLY COMPELLED TO HAVE SERVED ON THE SOLICITORS IN ANY EVENT

This omission is probably more fundamental than the case suggests. The failure to serve on the solicitors who had stated they would accept service was, in itself, was a breach of the rules and the claim form was improperly served.

CPR 6.7.

“6.7

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –

(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,

the claim form must be served at the business address of that solicitor”

Nangelgan -v- Royal Free Hospital Trust [2001] EWCa Civ 127.

NOTE THE MANDATORY REQUIREMENT

“Must” usually means “must”.  (There are exceptions in relation to a limited company (in the UK) which can always be served at its registered office under the Companies Act rather than under the CPR. However the defendant in the current case as a Portuguese company)

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