When court proceedings are threatened, it can often be scary and daunting for people. This may be because of the complicated legal nature of the dispute, or because of the rules that need to be followed. In England and Wales, civil litigation is governed by the rules laid out in the Civil Procedure Rules (the “CPR”). The CPR sets out how things are ought to be done from when you first set out your dispute, all the way to trial.
The CPR is a long document, and at times can be a bit “fiddly”. As such, parties can make mistakes and accidentally not follow the rules.
One such rule is how to serve a claim on a defendant. If you get this wrong, the consequences can be disastrous. It may ultimately mean that your claim is thrown out and cannot be pursued even if it was likely to succeed.
What is “service”
Once a claim, or application, has been made to the court, the court will return it with their seal at the top, and confirm the date it was “issued”. You, as claimant, will then normally have 4 months from the date of issue, to formally serve the claim on the defendant(s).
Who to serve
If the defendant is legally represented, you should seek confirmation that they have their client’s authority to accept service of your claim. If they are instructed to accept service, you may also want to obtain confirmation that they will accept service by email. Without this confirmation, you will have to send the claim in the post. The date of deemed service is not necessarily the date the defendant’s solicitors receive the claim, but two business days after it was sent. This date needs to be within the four months after the date of issue.
If the defendant is not legally represented, or their solicitors are not instructed to accept service, then you must serve on them directly, usually at their home, or if a business, their registered address. Again, you can ask whether they are willing to accept service by email.
The pitfalls
One surprisingly common pitfall in litigation is serving your claim either on the wrong party (the defendant or their solicitor) or using the wrong method (email and not by post). Should you not serve on the appropriate party, correctly, it will be deemed that there has been no valid service.
In a recent case of Keilaus v Houghton, the claimant’s solicitors issued a claim before the limitation period expired. In this case, limitation was six months after the Grant of Probate had been issued, after which the claimant was out of time would need permission from the Court to allow service late. Three and a half months later, the claimant’s solicitors asked the defendant’s solicitors whether they would accept service, as they were approaching the four month deadline to serve the claim. The defendant’s solicitors confirmed that they were instructed to accept service.
It appears this response was overlooked, as another request for confirmation of them accepting service was made. The defendant’s solicitors did not answer this request, but did respond to another query from a previous email. Two further requests were made in relation to the defendant’s solicitors accepting service, both without response.
The claimant’s solicitors decided that, without an apparent response to their question, to serve the claim on the defendant personally, and emailed the defendant’s solicitors with a copy of the claim.
Whilst the court can make an order to remedy the mistake, there has to be shown that there is a “good reason” to do so, and that the claimant has “taken reasonable steps” to serve the claim validly.
In this case, the court held that the defendant’s solicitors had responded to the question about service, and they had no duty to correct, or provide positive assistance, to the claimant. Further, it held that the claimant’s reasonable steps would have been to review their correspondence and they would have then seen the defendant’s solicitor’s response. The claim was therefore invalidly served, and was out of time. The court refused consent to extend time for service.