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05 December 2019

The importance of service: dodging a procedural death

Getting service right matters. The Supreme Court’s decision in Barton v Wright Hassall LLP should leave practitioners in no doubt that there are numerous traps for the unwary claimant, coupled with high hurdles to obtain relief from the court ([2018] UKSC 12, www.practicallaw.com/w-013-8990). Here, the court refused to validate service where the claim form was served by email without securing the defendant’s prior agreement to do so. As a result, the entire claim was time-barred.

It is service that engages the court’s jurisdiction over the defendant. It is from the date of service that important time consequences flow, in particular the stopping of the running of limitation periods and the starting of the running of time for the defendant’s response, failing which response the claimant may, in appropriate cases, obtain default judgment. It is a key stage in civil procedure with potentially serious consequences.

From the claimant’s perspective, if service is defective and the claimant is at the end of the limitation period for bringing its claim, it will likely find that its claim is time-barred. Where the fault is its own, it is unlikely to be rescued by the court. Even if the claim has merit, that will be the end of the matter. From the defendant’s perspective, the validity of service will determine whether it is subject to the English courts’ jurisdiction, if it has an absolute defence in the form of limitation or whether any default judgment can be set aside.

The importance of knowing not only the law on limitation but the rules on service and the many potential pitfalls is critical for every litigator, whether acting for a claimant or a defendant. This article considers how to effect valid service of a claim form, including:

  • How to prepare for service, including navigating the various procedural rules on timing, method and where to serve.
  • How to apply for alternative service or dispensation of service where the circumstances demand it.
  • The practical lessons to be learned from case law.
PREPARING FOR SERVICE

At the risk of stating the obvious, the claim form must first be issued before it can be served. Questions sometimes arise as to whether the claim form that is served must be the issued (that is, sealed) copy and whether it can be a copy or must be the original. The Civil Procedure Rules (CPR) neither expressly state that a sealed copy of the claim must be served nor define “claim form” for that purpose, whether in the interpretation provisions at CPR 6.2 or in the glossary to the CPR.

However, commentary to the current edition of the White Book at paragraph 6.3.2, drawing on case law, should leave practitioners in no doubt. It says that when a claim form is issued there is an original sealed claim form that the court retains. Original sealed claim forms are also provided so that the claimant can keep one, and one or more can be served on the defendants. The purpose of the seal is to give a clear message to the defendant that it is being served under the authority of the court, rather than being sent an informal demand.

The commentary cites the prominent authority on this area: Hills Contractors and Construction Ltd v Struth and another ([2013] EWHC 1693 (TCC)). Here, the High Court held that a claim form is the document issued by the court on which the court seal is placed. It also held that reference to “a claim form” in CPR 6.3, as a general rule (where service is to be effected within the jurisdiction), is the document issued and sealed by the court. In Hills Contractors, the court held that service of a photocopy of the sealed claim form was not proper service.

The obvious exception, as noted by the commentators to the White Book, is where the claim form is served by fax or other electronic means. Paragraph 4.3 of Practice Direction (PD) 6A expressly notes that the parties need not, in addition, send or deliver a hard copy.

Service out

It would be prudent to adopt a similar position in respect of service out of the jurisdiction, although there is authority that suggests a copy of the sealed claim which is not a “first generation” copy may be sufficient. In Weston v Bates and another, the High Court held that service was valid where a photocopy of the claim form was served as this was valid under local law ([2012] EWHC 590 (QB), www.practicallaw.com/8-519-1731). Naturally, when it comes to service out of the jurisdiction, any relevant requirements under local law must be confirmed (see “Service out of jurisdiction” below). Whether a first-generation copy or otherwise is used, it is clear that it must be a copy of the claim that bears the court’s seal.

Response pack

Alongside the sealed copy of the claim form, careful attention needs to be paid to the documents that accompany it. These documents are known as the response pack and comprise: the acknowledgment of service; the admission and defence or counterclaim forms; and notes for the defendant. Rather confusingly, a search for “response pack” online will bring up Form N9, which is only the acknowledgment of service; however, the other documents must also be included. Practitioners should be alive to the fact that certain courts and lists, in particular the Commercial Court and the Financial List, have their own forms for the response pack and the notes for defendant vary depending on whether service will be in or out of the jurisdiction.

SERVICE OUT OF THE JURISDICTION

For service out of the jurisdiction, further documents must accompany the claim form and response pack. What these documents are will depend on whether or not the permission of the court is required to serve out of the jurisdiction.

Necessity of serving out

In the first instance, practitioners should give thought to whether, despite the fact that the defendant is located overseas, the claim must in fact be served out of the jurisdiction. For example:

  • The parties may have entered into a contract that specifies a method of service in the jurisdiction, such as on an appointed agent for service.
  • Where the defendant is a company, either the CPR or the Companies Act 2006 (2006 Act) may provide an alternative to service out of the jurisdiction, such as service on a branch or any place of business in the jurisdiction. This might even extend to a warehouse.
  • The defendant may have instructed solicitors in the jurisdiction who have confirmed that they are authorised to accept service. In these circumstances, Form N510 does not need to be completed (see “Procedure” below).
  • Where the defendant is a director, they may have given an address in the register of directors that is in the jurisdiction. It does not matter if the director is in fact resident in the jurisdiction or where they are located at the time of service.

Even if the defendant is located overseas and none of the above factors exist, the claimant may apply to the court for alternative service under CPR 6.15 or to dispense with service under CPR 6.16. The bar for each is set high (see “Alternative or no service” below).

The court’s permission

Where the claim does need to be served out of the jurisdiction, the practitioner’s next step is to determine whether the court’s permission will be required. CPR 6.32 and 6.33 set out circumstances where the court’s permission is not required. These provisions, with their cross-references to the “1982 Act” (referring to the Civil Jurisdiction and Judgments Act 1982), “Lugano Convention” and “Judgments Regulation” (referring to the recast Brussels Regulation (1215/2012/EC)), may not make it easy to identify the relevant grounds.

When considering if the court’s permission is required to effect service out of the jurisdiction, practitioners should consider whether:

  • The English court has jurisdiction to determine the claim. This involves identifying, in the following order, whether:
    • the exclusive jurisdiction provisions of the recast Brussels Regulation apply. For example, disputes relating to certain rights in land will attract the exclusive jurisdiction of the courts of the country in which the land is situated. However, the court will take a narrow approach to interpretation as recently confirmed by the Supreme Court in Akcil and others v Koza Ltd and another ([2019] UKSC 40, see Briefing “Recast Brussels Regulation: the latest from the courts”);
    • there is a jurisdiction agreement in favour of the English courts;
    • the defendant has entered an appearance in the jurisdiction, that is, taken any step in the proceedings other than to contest jurisdiction; and
    • any of the special jurisdiction provisions set out in Articles 7 to 23 of the recast Brussels Regulation apply, for example, in a contractual dispute a court may take jurisdiction on the basis of the place of performance of the relevant obligation.
  • There are proceedings pending between the parties concerning the same claim in the UK, if service will be effected in Scotland or Northern Ireland, or the same claim in the EU, if service will be effected in the EU.
  • The defendant is domiciled in the UK, if service will be effected in Scotland or Northern Ireland, or is domiciled in the EU, if service will be effected in the EU.

Applying the above questions, permission will not be required if: the English court has power to determine the claim; there are no pending proceedings; and either the defendant is domiciled in the jurisdiction, the English courts have exclusive jurisdiction under the recast Brussels Regulation or there is a jurisdiction agreement in favour of the English courts.

Alternatively, and this may assume greater importance depending on the outcome of the Brexit negotiations, permission will not be required where:

  • The parties have entered into an exclusive jurisdiction agreement. The agreement need not use the word “exclusive” but must be to that effect. The position on asymmetric clauses, which impose exclusive jurisdiction on one party but not the other, remains unclear.
  • The subject matter falls within the scope of the Hague Convention on Choice of Court Agreements 2005, such as wills and succession, land, insolvency, and company constitution disputes.

In the absence of the above, permission will be required from the court in order to serve out of the jurisdiction. In these circumstances, it is necessary to determine which of the jurisdictional gateways set out in PD 6B will apply; for example, if the claim is in respect of a contract that was made within the jurisdiction or is governed by English law (paragraph 3.1(6)). It is also necessary to establish that England is the “proper place” or natural forum for the bringing of the claim. The court will need to be persuaded that the overall balance lies in England, considering all the circumstances of the case.

A recent example of the rules in action is Mousavi-Khalkali v Abrishamchi and another ([2019] EWHC 2364 (Ch), www.practicallaw.com/w-022-5056). Here, the High Court set aside an order granting permission to serve out of the jurisdiction due to the fact that resolving a key issue in the case would involve assessing contemporaneous documents and correspondence written in Farsi: some in note form, and some using Iranian numbering and dating conventions. The court concluded that although an English court could conduct the exercise, it would undoubtedly be conducted more quickly by an Iranian court and probably with less risk of an incorrect conclusion.

Even if England is not the natural forum, it may be that justice requires that the case be tried in England; for example, if there is a real risk that substantial justice will not be obtained in the foreign jurisdiction. In Mousavi-Khalkali, the court held that Mr Mousavi-Khalkali had not established any real risk that he would not receive substantial justice in Iran.

Procedure

If the court’s permission is not required to serve out of the jurisdiction, Form N510 should be filed with the claim form, identifying the ground on which permission is not required.

Where the court’s permission is required, it will be necessary to prepare a without notice application under CPR 23, supported by a witness statement that addresses the relevant issues (see “The court’s permission” above). As with all without notice applications, the applicant is required to make full and frank disclosure of all material facts, including any that are adverse to its case. The court in Mousavi-Khalkali emphasised that this duty is particularly acute where the court is considering granting permission to serve out of the jurisdiction.

As to the timing of the application, it is not the case that permission to serve out of the jurisdiction must be sought at the time of filing the claim form: permission may be sought after the claim form has been issued. Practitioners may take the view that it is best to prepare the necessary application and evidence, and file those along with the claim form; this will potentially avoid consuming any of the claim form’s validity period with the application process. On the other hand, if limitation may be an issue and the time for filing the claim form is pressing, practitioners will likely want to file the claim form and then prepare the application.

Whether or not the court’s permission is required, practitioners will need to determine whether translations of all the documents to be served will be necessary, which will involve consulting the relevant service regulation or convention and local law requirements. Practitioners should also remember that the relevant court guide may contain particular requirements; for example, the Commercial Court Guide has specific stipulations set out in Appendix 9 about what the written evidence in support must contain.

TIMING

Once issued, the claim form has a validity period. This will be four months after the date of issue of the claim in the case of service in the jurisdiction and six months where service will be out of the jurisdiction. If service is not effected within the relevant validity period, the claim form will lapse and will need to be reissued (see box “CPR 7.7 notice”). If the claim has been issued towards or at the end of the limitation period, the claimant may face the prospect of its claim being time-barred.

Service in jurisdiction

CPR 7.5 contains an important distinction on timing between service in and service out of the jurisdiction. For service in the jurisdiction, the claimant must despatch the claim form (whether by the act of posting it or sending an email, for example) by 11.59pm on the last day of the validity period. The important practical points here are: to pay careful attention to what constitutes “despatch” for the relevant step chosen; and to retain proof of despatch, such as a photograph of the envelope containing the claim form showing the correct address and postage, and perhaps even a photograph of the envelope being posted.

Service out of jurisdiction

For service out of the jurisdiction, not only must despatch take place, service must also be completed within the validity period. It would not be enough, therefore, to post the claim form in accordance with the EU Service Regulation (1393/2007/EC); service will need to be completed, which will be determined in accordance with local law. This in turn has a significant practical implication. While six months may appear a generous amount of time to serve a claim form, depending on the method of service required, it could be the case that service will in fact take longer. Statistics published in relation to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter (the Hague Service Convention) in 2014 indicate that, in some jurisdictions, service may exceed six months, or even 12 months, particularly for countries such as China and Russia (https://assets.hcch.net/docs/2bdf80df-bde5-48c9-935f-55e82db4bc1c.pdf).

Extension of time

A claimant may wish to seek proactively an extension of time, particularly where service will be out of the jurisdiction. CPR 7.6 expressly states that, in general, this application must be made within the validity period. If the application is made after this point, the court may make the order only if the claimant has taken all reasonable steps to comply with CPR 7.5 but has been unable to do so and has acted promptly in making the application.

The Court of Appeal’s decision in Al-Zahra (PVT) Hospital and others v DDM offers a cautionary tale, emphasising the need to proceed expeditiously when the court has granted an extension ([2019] EWCA Civ 1103). Here, the claimant, referred to under an anonymity order as DDM, was granted an initial 11-month extension of time since there was evidence that service in the United Arab Emirates was likely to take more than 12 months. At first instance, DDM obtained a further extension of six months. However, the Court of Appeal overturned the second extension on the basis that the lower court had, among other things, failed to take sufficient account of 12 to 14 months of unexplained delays after the issue of proceedings and the expiry of limitation, which (on DDM’s own evidence) were mainly down to DDM’s solicitors, and had failed to pay sufficient regard to the expiry of limitation and to DDM having issued proceedings at the last moment.

Particulars of claim

In general, the validity period applies not only to the claim form but also to the particulars of claim. The starting point under CPR 7.4(1) is that the claimant may choose whether to include the particulars with the claim form or serve them separately but within 14 days of service of the claim form. However, the validity period of the claim form provides a long-stop date: CPR 7.4(2) states that the particulars of claim must be served on the defendant no later than the latest time for serving a claim. As the commentary to the White Book observes at paragraph 7.4.3, this can create a trap for the unwary claimant.

However, there is one exception to this, which arises in the Commercial Court. CPR 58.5 expressly disapplies CPR 7.4(2) so that the particulars of claim are to be served within 28 days of the filing of the acknowledgment of service and it does not matter if that occurs after expiry of the claim form’s validity period.

On the question of the particulars of claim, it is worth taking note of an issue that arose in the recent case of Woodward and another v Phoenix Healthcare Distribution Ltd ([2019] EWCA Civ 985, www.practicallaw.com/w-021-3686). Here, the claimants had left service of the claim form until the last minute due to the fact that the particulars of claim had not been finalised, thereby “courting disaster” in the words of the High Court. The High Court held, and the Court of Appeal unsurprisingly did not challenge its conclusion, that the better course of action would have been to serve the claim form, since it is this that engages the court’s jurisdiction, and then apply for an extension of time for service of the particulars of claim.

CPR 7.7 notice

Under Civil Procedure Rule (CPR) 7.7, a defendant has the ability, which is not particularly well-known, to call for service of the claim form where it has been issued but not yet served. The defendant must give a minimum of 14 days’ notice and, if the claimant fails to comply with the notice, the court may dismiss the claim.

In light of Brightside Group Ltd and others v RSM UK Audit LLP and another, practitioners must factor in the deemed service period of two business days when responding to a notice of this kind ([2017] EWHC 6 (Comm)) (see “Deemed service” in the main text). In Brightside, the defendants, RSM, served a CPR 7.7 notice on the claimants, Brightside, requiring them to serve or discontinue the claim by a certain date. Brightside’s solicitors delivered the claim form to RSM’s solicitors on the afternoon of that date. The High Court held that Brightside had failed to comply with the CPR 7.7 notice as service was deemed to take place two business days after the specified date. However, on the facts of the case, the court was persuaded not to dismiss the claim.

METHODS OF SERVICE

For service in the jurisdiction, it is important to be aware of the hierarchy of methods of service set out in CPR 6. Again, due to the way that CPR 6 is drafted and the need to cross-reference various provisions, it may not immediately be obvious what takes precedence (see box “Where to serve”).

Hierarchy of service methods

In summary, the hierarchy is as follows:

Mandatory personal service. Mandatory personal service takes precedence over any other method of service in CPR 6, including where a solicitor has been instructed to accept service. CPR 6.5(1) states that personal service is mandatory where it is required by another part of the CPR, any other enactment, a practice direction or a court order. The circumstances where this applies are likely to be rare, with the most obvious example being committal proceedings under CPR 81.

Solicitor. In the absence of mandatory personal service, where a solicitor has been instructed to accept service and this has been confirmed in writing to the claimant, service must be effected on the solicitor and non-mandatory personal service is not permitted (CPR 6.7(1)) (see box “Serving on a solicitor”). The notes to the White Book at paragraph 6.7.1 go so far as to capitalise this obligation. In these circumstances, a defendant’s solicitor is not free to refuse service, unless the solicitor has applied for an order declaring that they have ceased to be the solicitor acting for the party, for example, because they do not have instructions and cannot continue to act (CPR 42.3). Where this notification has been given, the CPR mandate that service must be at the business address of that solicitor.

Serving on a solicitor

A trap for the unwary claimant is serving a solicitor who is acting for the defendant but in the absence of written confirmation that the solicitor is instructed to accept service. The stark consequences for the claimant are highlighted in Woodward and another v Phoenix Healthcare Distribution Ltd ([2019] EWCA Civ 985www.practicallaw.com/w-021-3686). There, the solicitors acting for Ms Woodward and Mr Addison purported to effect service on the defendant’s solicitors, Mills & Reeve LLP, but without the requisite written confirmation. Mills & Reeve waited a couple of days, until the validity period had expired, to inform the claimants that they were not instructed to accept service.

The Court of Appeal held that this was not “technical game-playing” or a breach of Mills & Reeve’s duty to the court under the overriding objective. Unless the defendant deliberately obstructs service or in some way contributes to the claimant’s mistake whereby the situation calls for a response (including, the Court of Appeal appeared to intimate, where a substantial amount of the validity period remains), the claimant cannot expect the court to rescue its defective service.

Companies Act 2006. The provisions for service on companies and limited liability partnerships under the 2006 Act offer an alternative to the methods of service set out in the CPR 6 and, arguably, are more generous, particularly when it comes to service on an overseas company. The statutory regime enables proceedings to be served on a branch or place of business, even where there is no connection between the cause of action and the carrying on of the business of the branch or where the proceedings do not relate to business conducted in England (section 1139(2), 2006 Act). In addition, a “place of business” is not defined in the legislation but arguably is wide enough to cover warehouses or administrative offices.

In Cranfield and another v Bridgegrove Ltd, the Court of Appeal described the regime under the 2006 Act as a “true alternative” to CPR 6 and, in Ashley and others v Tesco Stores Ltd, said that section 1139 of the 2006 Act “gives unqualified permission” to use the methods of service set out in that provision ([2003] EWCA Civ 656; [2015] EWCA Civ 414). Arguably, this means that service can be effected on a company under the 2006 Act irrespective of the application of CPR 6.5(1) or CPR 6.7(1), although a claimant may consider it prudent to serve in accordance with these provisions as well, where they apply. A claimant should also bear in mind any agreement made with the defendant regarding service, given that the Court of Appeal in Cranfield acknowledged that it is possible for parties to make a binding contract whereby the claimant agrees to serve using the CPR route rather than the statutory one. Subject to this point, recent case law shows that where service in accordance with the 2006 Act has taken place, this may rescue a claimant that has otherwise served defectively under CPR 6.

CPR 6.3. If none of the above methods apply, the claimant may choose between the different methods of service contained in CPR 6.3. These comprise: personal service; first class post or DX; leaving the claim form at a specified location; fax or other means of electronic communication, subject to PD 6A; or a contractually agreed method (see box “Contractual agreement”). Where the defendant has provided a business or residential address at which it may be served, whether in a relevant contract or separately, it is worth noting that the relevant rule, CPR 6.8, is expressed in permissive terms (“may be served”). In these circumstances, it would appear to be acceptable to serve the defendant personally under CPR 6.5(2) despite the receipt of an instruction to serve the defendant at the address it has given.

Default service. Failing the above, a claimant may follow the default service provisions contained in CPR 6.9. In the case of an individual defendant, where it is not reasonably possible to ascertain their current residence or place of business, the claimant must first determine whether there is an alternative place or method by which service may be effected (see “Alternative or no service” below). If this cannot be ascertained, the claimant may serve on the defendant’s usual or last known residence or, where being sued in the name of a business, the last known place of business.

The recent case of Gray v Hurley demonstrates the court’s willingness to extend the “usual or last known” address provisions in CPR 6.9 to service under the recast Brussels Regulation in appropriate circumstances, including where there is no positive evidence of domicile outside of the UK ([2019] EWHC 1636 (QB)). Ms Gray had obtained an order for alternative service to serve the claim form on Mr Hurley using WhatsApp. Mr Hurley argued that he was domiciled in New Zealand when the claim form was issued and so the English courts did not have jurisdiction. The High Court held that it did have jurisdiction under Article 4(1) of the recast Brussels Regulation, and that the service of the claim form was valid as England was Mr Hurley’s last known domicile.

Great care must be taken with the default service provisions in CPR 6.9, as demonstrated by several recent cases. For example, in Idemia France SAS v Decatur Europe Ltd and others, Idemia France purported to serve one of the defendants at a residential address in London ([2019] EWHC 946 (Comm)). Idemia France was told by the concierge at the property that the defendant was not on the list of people who lived there and was told by the defendant’s solicitor that he was now living in Bangladesh. The High Court held that, in the circumstances, Idemia France was no longer entitled to serve at that address and was required by CPR 6.9(3) to take reasonable steps to ascertain the address of the defendant’s current residence, which the court said was not an onerous requirement and the first simple step would be to ask the defendant for its address.

However, Idemia France was rescued by the fact that it had also served at the defendant’s registered address for the purpose of section 1140 of the 2006 Act. Idemia France underlines that service under the 2006 Act is a parallel code and can be of particular assistance when dealing with a defendant director who is located outside of the jurisdiction.

Contractual agreement

As far as Civil Procedure Rule (CPR) 6 is concerned, service by a contractually agreed method is expressed in permissive rather than mandatory terms: the claim form “may” be served by the method specified in the contract (CPR 6.11). This is subject to the mandatory service provisions of CPR 6.5(1) and CPR 6.7(1) where the claimant has received written notification of a solicitor in the jurisdiction instructed to accept service. The position is arguably different where the solicitor is located outside of the jurisdiction. CPR 6.7(2) and (3), which concern service on a solicitor or European lawyer in any EEA member state, are subject to where “any other rule or practice direction makes different provision” and CPR 6.11 does make different provision.

A contractually agreed method of service in the jurisdiction can be particularly useful where the claim form would otherwise have to be served out of the jurisdiction. A common example would be where the contract provides for service on nominated solicitors, or other agents, in England. A contractually agreed method of service out of the jurisdiction is also permitted but will be subject to the usual considerations regarding whether or not the court’s permission is required and obtaining local law advice (see “Service out of the jurisdiction” in the main text).

Electronic methods

When it comes to service by electronic methods, the provisions of PD 6A must be observed. Unless the claimant has received prior written notice that the defendant or its solicitor is willing to accept service by a particular electronic means, the claimant must obtain confirmation that this method is acceptable (paragraph 4.1, PD 6A). The consequence of a failure to do this was underlined by the Supreme Court in Barton, where the court was unwilling to make an exception for a litigant in person who had fallen into this trap. The court also firmly rejected the suggestion that the defendant’s solicitor should have alerted the claimant to his error: a view that informed the Court of Appeal’s judgment in Woodward.

Out of the jurisdiction

When serving out of the jurisdiction, practitioners should pay close regard to the applicable rules that set out permissible methods of service, such as through a central authority, diplomatic agents, judicial offers or by post. The applicable rules will be determined by the country of destination in two senses:

  • For EU member states, the EU Service Regulation governs the methods of service, while for service in countries outside of the EU, this will depend on whether the country in question is a signatory to the Hague Service Convention or any other convention with the UK. Both the EU Service Regulation and the Hague Service Convention have websites where the signatory countries set out requirements for service, including any limitations (https://e-justice.europa.eu/content_service_of_documents-371-en.do; www.hcch.net/en/instruments/conventions/authorities1/?cid=17).
  • Irrespective of the various steps that must be taken to effect service in accordance with an applicable regulation or convention, ultimately, as spelt out in CPR 6.40(4), service must comply with local law and advice to this effect should be obtained.
DEEMED SERVICE

Under CPR 6.14, where the claim form is served in the UK in accordance with CPR 6, it will be deemed served on the second business day after despatch. This is the case regardless of the method of despatch. This contrasts with the deemed service of any other document, which will vary depending on the means used to effect service.

The question may naturally be asked what the position is where particulars of claim are served with the claim form and, as a result of the method of service used (for example, personal service), would ordinarily bear a deemed service date earlier than the claim form. The position is not addressed directly in the CPR; indeed, CPR 6.14 and CPR 6.24 pull in different directions. However, commentary to the White Book at paragraph 6.14.5 sets out a commonsense approach: if particulars of claim are attached to a claim form, the date of service is the same date as for the claim form. To avoid any uncertainty, practitioners may consider expressly stating that this is considered to be the case when serving the claim form and particulars of claim together.

The rationale for the deemed service provisions is simple: to provide a uniform method for calculating the day from which time runs for responding to the claim. As the Court of Appeal made clear in Kennedy v National Trust for Scotland, the deemed service date has no bearing on whether a claim form is served within the validity period in the UK ([2019] EWCA Civ 648, www.practicallaw.com/w-020-5008). The deemed service date is a necessary legal fiction: a fiction concerned with the date of service and not with the validity of the claim form. In Kennedy, the court held that CPR 6.14 does not operate to reduce the six-month period for service and deems the date of service only for the limited purpose of determining when parties should take subsequent steps.

However, the current position with regard to service under a CPR 7.7 notice is different (see box “CPR 7.7 notice”). In Brightside Group Ltd, the High Court held that service of the claim form in compliance with a CPR 7.7 notice occurred when the claim form was deemed served under CPR 6.14 and not the earlier date on which it had been despatched under CPR 7.5.

The deemed service provisions do not apply where service is being effected out of the UK. The date of service will turn on the method used and any relevant convention or regulation. For example, under the Hague Service Convention, where documents are served through diplomatic or judicial channels, a certificate will be provided specifying the date that the method of service requested has been performed (Article 6, Hague Service Convention; CPR 6.43(5)). Ultimately, in most cases it will likely be a question of local law and both the EU Service Regulation and Hague Service Convention, as well as the CPR, largely defer to local law.

ALTERNATIVE OR NO SERVICE

When confronted by difficulties in serving the claim form, whether in or out of the jurisdiction, the claimant may enlist the court’s assistance in one of two ways:

  • Alternative service, where the court may make an order under CPR 6.15(1) prospectively permitting service by a method or at a place not otherwise permitted by CPR 6. It also has the power under CPR 6.15(2) to provide this permission retrospectively (see box “Retrospective validation”).
  • Dispensing with service, where the court has the power under CPR 6.16 to dispense with service of the claim form.

The burden is on the claimant to persuade the court that there is good reason for the order, in the case of alternative service, or that there are exceptional circumstances for dispensing with service. Applications will often be made to the court on the basis of CPR 6.15 with dispensation from service in the alternative, as happened in Woodward. However, if the claimant is unable to show a good reason to satisfy the court to order alternative service, it is unlikely to succeed in meeting the higher threshold for dispensing with service. What amounts to a good reason will involve considering all the circumstances of the case, as the High Court explained in Koza Ltd and another v Akcil and others ([2018] EWHC 384 (Ch)).

Retrospective validation

In Barton v Wright Hassall LLP, drawing on Abela and others v Baadarani, the Supreme Court took the opportunity to set out the principles that apply to an application for the court to validate alternative service retrospectively under Civil Procedure Rule (CPR) 6.15(2) ([2018] UKSC 12www.practicallaw.com/w-013-8990[2013] UKSC 44www.practicallaw.com/1-534-9377). These include that:

  • The mere fact that a defendant learns of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2). The Supreme Court emphasised that, otherwise, any unauthorised mode of service would be acceptable, even if it did not fulfil any of the other purposes of serving originating process.
  • The question is whether there is good reason for the court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
  • The fact that one party is a litigant in person cannot on its own amount to a good reason. The Supreme Court made clear in Barton that this factor exists “at the margin” and it is reasonable to expect a litigant in person to familiarise themselves with what the court perceives as readily accessible rules.

In addition, the claimant is required to take reasonable steps but does not need to show that it has taken all the steps it could reasonably have taken to effect service by the proper method (Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898). If the defendant is playing technical games, this will count against it. An example would be where the defendant is being obstructive or evasive as to service, as happened in Abela. However, as the Court of Appeal made clear in Woodward and another v Phoenix Healthcare Distribution Ltd, the fact that a defendant or its solicitor may stay silent in the knowledge that service has been defective will not necessarily amount to technical game playing ([2019] EWCA Civ 985www.practicallaw.com/w-021-3686).

Social media

Increasingly, the courts are showing their willingness, in appropriate circumstances, for alternative service through different forms of social media. CMOC Sales & Marketing Ltd v Persons Unknown and 30 others, a case involving a sophisticated cyber fraud, presents a recent example ([2018] EWHC 2230 (Comm)). There, service was permitted using Facebook Messenger, WhatsApp and also through access to a virtual data room. The court said that it will consider proactively different forms of alternative service where they can be justified in the particular case. The High Court also permitted service using WhatsApp in Gray v Hurley.

Hague Service Convention

When it comes to seeking alternative service out of the jurisdiction in the context of the Hague Service Convention, the test is higher still. Exceptional or special circumstances must exist for the court to order a method of service not permitted under local law.

In Absolute Living Developments Ltd (In Liquidation) v DS7 Ltd and others, one of the defendants was a British citizen resident in Switzerland ([2019] EWHC 550 (Ch)). The defendant’s solicitor refused to accept service on the basis that some of the documents had not been translated into French, which was required under Swiss procedural law and Article 5 of the Hague Service Convention suggests that all documents must be translated. The High Court retrospectively dispensed with service under CPR 6.16 and CPR 6.28, finding that this was an exceptional case where the claimant had followed the correct process and there would be no prejudice to the defendant if the application was granted. A number of factors played into the court’s consideration, in particular that the documents were in the control of the defendant’s lawyers, the defendant was aware that the documents had been served and might be said to be acting opportunistically in relying on a technicality.

Service on a foreign state

The most notable recent case law on CPR 6.16 has been on the subject of the court’s ability to dispense with service on a foreign state. Section 12 of the State Immunity Act 1978 provides that any writ or other document required to be served for instituting proceedings against a state must be served by being transmitted through the Foreign and Commonwealth Office to the state’s ministry of foreign affairs, and service will be deemed to have been effected when the writ or document is received at the ministry. This had been the subject of some tension in first instance decisions. However, the recent Court of Appeal decision in General Dynamics United Kingdom Ltd v The State of Libya now confirms that section 12 of the State Immunity Act 1978 does not deprive the court of jurisdiction to dispense with service where exceptional circumstances exist ([2019] EWCA Civ 1110).


FLOWCHART: WHERE TO SERVE


This article was first published on Practical Law.

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