#10341 - Service - BPC Civil Litigation

SERVICE WITHIN THE JURISDICTION

SERVICE OF CLAIM FORMS

WHEN MUST THE CLAIM FORM BE SERVED?

• must be served within validity period

• validity period = 4 months from date of issue if issued 8 Jan validity expires at midnight on 8 May

• latest can issue = last day of limitation period

• validity period continues to run during stay

Applications to renew the validity period, to enable to C to serve within it

• apply during validity period

  • need good reason:

    • negligence of C's solicitors

    • deliberately not serving to avoid prejudicing ongoing negotiations

    • awaiting expert's report before drafting particulars of claim (C should serve claim form and seek extension of PoC)

    • seeking time to prep particulars, schedule of loss and damage, medical evidence

    • seeking extension while arranging funding litigation (C should seek stay whilst funding arranged)

    • difficulties in effecting service of claim form e.g. D evading service

    • C could not have known about claim till last minute

  • if litigation has OR might expire - also consider balance of prejudice (only extended in exceptional circumstances)

• apply after validity period

  • only if C has acted promptly in making application; AND

1. court fails to serve claim form; OR

2. C has taken all reasonable steps to serve but has been unable to e.g. thinks has effected service, discovers later hasn't

• procedure

  • may be without notice

  • must be supported by evidence, disclosing all relevant facts

  • once order made, must serve order + application notice + evidence on D (unless court orders otherwise)

  • D can apply to set aside order within 7 days of service of order

HOW AND WHERE IS THE CLAIM FORM SERVED?

Who serves the claim form?

• the court (and court decides which method), unless:

1. rule or PD specifies C must serve

2. C notifies court wants to serve

3. court orders otherwise

• if court serves, will notify C of deemed date of service, if returned to sender, if bailiff unable to serve

Address for service

• must include full postcode, unless court orders otherwise

Methods of service

1. personal service

   1. individual - leave with D

   • if D uncooperative, served if D aware what document is AND has sufficient opportunity to have in possession

     1. company - leave with person in senior position

     2. partners sued in name of partnership - leave with partner managing business at principal place

2. leaving at D's address for service

3. post

   1. any next business day delivery service NOT just Royal Mail

   2. place in post box OR leave with / have collected by service provider

4. DX (delivery system between offices)

   1. can use if D's address / paper of D or solicitor includes DX number AND NOT unwilling to be served by DX

5. electronic communication (including fax, email)

   1. can use if

   • D / solicitor indicates in writing willing to accept (if serving D, D must have included e-address on SoC); AND

   • have inquired if recipient has any limitations on format size etc.

6. method specified in contract

7. consensual / ad hoc service - D consents to being served by particular method

8. alternative service e.g. newspaper advert, text message, NOT fax

   1. court will order if good reason (before C attempts service OR to rectify faulty service)

   2. may apply without notice

   3. must support with written evidence: why sought; proposed method; why will be efffective

Prescribed hierarchy of methods of service (C can’t choose)

When D has not given an address for service - last known address

• D can be served at last known address provided at one time was D's residence AND is last address known to C

• if served there by permitted method, deemed to be served (evidence that D did NOT receive inadmissible)

• if C believes D no longer resides at last known address, must take reasonable steps to find current address (r6.9(3))

  • if C discovers D's current address from inquiries must serve at that address - r6.9(4)(a)

  • if inquiries point to other address/method C must apply for alternative service - r6.15

  • only if alternatives NOT available C may serve at address where D no longer resides

APPLYING TO DISPENSE WITH SERVICE OF THE CLAIM FORM

• court has discretion to dispense with service if exceptional circumstances

• C may apply without notice AND must support with evidence

DEEMED DATE OF SERVICE OF THE CLAIM FORM

• deemed date of service = 2 business days after relevant step

• business day = any day except weekend, bank holiday, good Friday, Christmas day

• actual date of receipt irrelevant

CERTIFICATE OF SERVICE OF THE CLAIM FORM

• if C serves claim form must file certificate within 21 days of PoC (unless all Ds file AoS within that time)

SERVICE OF DOCUMENTS OTHER THAN CLAIM FORM

HOW AND WHERE IS THE CLAIM FORM SERVED?

Who serves the claim form?

• general rule: entity (party or court) who prepares document must serve the other side (unless court otherwise orders)

Methods of service

• available methods same as for claim forms, including alternative service

• personal service must be used if prescribed (e.g. order with penal notice, application to commit)

• usual place of service

  • = address party gives for service (stated on claim form (C) OR AoS / defence (D))

  • party has legal representation - solicitor's address

  • LiP - must provide address in jurisdiction / EEA

DEEMED DATE OF SERVICE OF DOCUMENTS OTHER THAN THE CLAIM FORM

• business day = any day except weekend, bank holiday, good Friday, Christmas day

• actual date of receipt irrelevant

APPLYING TO DISPENSE WITH SERVICE OF DOCUMENTS OTHER THAN THE CLAIM FORM

• court has discretion to dispense with service if exceptional circumstances

• C may apply without notice AND must support with evidence

REMEDYING IRREGULAR SERVICE

• start claim using wrong form - permission to amend likely to be granted

• service attempted incorrectly - can apply to remedy procedural error under r3.10 (all relevant steps taken to remedy on discovery?)

• expiry of validity period - specific application (see above)