- Serving claim forms03 December 2008
The Civil Procedure Rules are now in their 48th Update following the coming into force of the Civil Procedure Amendment Rules 2008 on
1st October 2008. The most significant amendment is to Part 6 relating to the Service of Documents. This article focuses upon the new rules relating to service of the claim form. Effective service of the claim form and knowing when documents have been served upon you is crucial in litigation. In the civil courts the date the particulars of claim are served triggers the deadline for filing the acknowledgment of service and the defence. From the Defendant’s point of view if the deadline is missed then default judgment can be entered against it, and whilst this can be set aside an application to set aside will mean incurring further legal costs. From the Claimant’s perspective if a deadline is allowed to pass an opportunity might have been missed to request judgment in default allowing the Defendant who files his defence late to live to fight another day.
The new rules take effect on 1st October 2008 and apply to all claim forms and documents served on and after that date. There are no transitional provisions therefore the old rules cease to apply.
The new rules provide that service of the claim form may be effected by any of the following means:-
(a) Personal service- to personally serve a claim form on an individual the claim form must be left with that individual. A company is personally served by leaving the claim form with a person holding a senior position within the company or corporation. A partnership is personally served by leaving the claim form with a partner or a person who at the time of service has control or management of the partnership at its principal place of business.
(b) First class post, document exchange or any other service providing for delivery on the following business day.
(c) Leaving the claim form at the Defendant’s solicitors office (only if the solicitor has confirmed in writing that it has authority to accept service on behalf of the Defendant or if the Defendant has notified the Claimant of his solicitor’s address in writing for the purposes of service.
(d) Leaving the claim form at an address which the Defendant has provided for the purposes of service
(e) Leaving it at the places listed below when the Defendant has not specified an address for service.
(f) Fax or other means of electronic communication
The claim form is effectively served by any of the means above at the following addresses (except where the Defendant has specified an address for service):-
Nature of defendant to be served
Place of service
1. Individual
Usual or last known residence.
2. Individual being sued in the name of a business
Usual or last known residence of the individual; or
principal or last known place of business.
3. Individual being sued in the business name of a partnership
Usual or last known residence of the individual; or
principal or last known place of business of the partnership.
4. Limited liability partnership
Principal office of the partnership; or
any place of business of the partnership within the jurisdiction which has a real connection with the claim.
5. Corporation (other than a company) incorporated in
England and Wales Principal office of the corporation; or
any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
6. Company registered in
England and Wales Principal office of the company; or
any place of business of the company within the jurisdiction which has a real connection with the claim.
7. Any other company or corporation
Any place within the jurisdiction where the corporation carries on its activities; or
any place of business of the company within the jurisdiction.
The claim form will be deemed served on the second business day after the relevant steps set out below have been completed:-
Method of service
Step required
First class post, document exchange or other service which provides for delivery on the next business day
Posting, leaving with, delivering to or collection by the relevant service provider
Delivery of the document to or leaving it at the relevant place
Delivering to or leaving the document at the relevant place
Personal service under rule 6.5
Completing the relevant step required by rule 6.5(3)
Fax
Completing the transmission of the fax
Other electronic method
Sending the e-mail or other electronic transmission
This is a simplification of the old law and ensures that the claim form can only be served on a business day and always on the second business day after completion of the relevant step.
By way of example three separate claim forms put in the post box at 10pm on Friday 7th November 2008, at 11am on Saturday 8th November 2008 and 4pm on Sunday 9th November 2008 will all be deemed served the following Tuesday 11th November 2008.
Once a claim form has been issued the Claimant has four months in which to serve this upon the Defendant before it expires. In some cases a Claimant may have to urgently issue a claim form to avoid the claim being time barred but for tactical reasons may not want to serve the claim straight away or because the particulars of claim have not yet been drafted. Under the old rules the claim form had to be served within the four month time limit i.e. it had to be deemed served before expiry of the deadline.
Pursuant to new rule 7.5 of the Civil Procedure Rules the claim form does not have to be served or deemed served before the expiry of the four month period but the Claimant must complete one of the steps set out above before midnight on the calendar day four months after the date of issue of the claim form even if this means that the claim form is not deemed served until after the four month deadline has expired.
In practice there a few occasions when a claim form that has been issued should not be served upon the Defendant without delay. The courts do not have sympathy with the Claimant who has got into trouble when serving a claim form close to the expiry of the four month deadline. This is to be avoided where at all possible especially where the claim form has been issued to avoid encountering limitation difficulties only to find that the claim form has expired due to a failure to serve in time and the claim is ultimately time barred.
As the new rules place greater emphasis upon the time when the relevant step is undertaken it is clearly advisable to retain evidence that the step has been carried out, when, where, and by whom. In all cases where the Claimant serves the claim from himself, by whichever method, and one or more of the Defendants has failed to file an acknowledgment of service, a certificate of service must be filed with the court within 21 days of serving the particulars of claim. This is very important if the Defendant fails to respond in time because the Claimant cannot enter judgment without first producing a certificate of service. If the court serves the claim form, which it will do in the vast majority of cases, then it will provide a notice to the Claimant confirming service and recording the date of deemed service. There are some specific occasions when the rules demand that the Claimant serves the claim form but this is outside the scope of this article and it is advisable to check upon issuing every claim whether the court can effectively serve.
Another important change in the rules grants the court the power to retrospectively order that steps or actions taken by the Claimant constitute good service of the claim form on a particular date.
If you would like to speak to a member of our team regarding serving claim forms, please visit the “Dispute Resolution” section of our website.
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