Chapter 4: Commencing and Serving Proceedings

Question 1

Parties to proceedings

Answer 1

A decision must be made about who a claim is being brought against. The claim form must include the full name of each party and therefore proper consideration will need to be made about who the parties are and how they should be referred to in the claim. Individuals will be referred to using their full unabbreviated name and title (for example, Mr Stephen James Smith), but how should you refer to a party if it is a partnership, a sole trader, an LLP or a company?

Question 2

1.1 Partnerships

Answer 2

Claims are brought against a partnership where there are two or more people who:
* Were partners (claiming to be entitled as partners or alleged to be partners); and
* Carried on the partnership business at the time when the cause of action accrued.
CPR 7.2A and 7A PD 5A provide that, if a claim is being brought against a partnership, claims must be brought against the name under which a partnership carried on business at the time the cause of action accrued unless it is inappropriate to do so. Examples of where it may be
inappropriate could include partnerships where there have been multiple changes of the name of
the partnership or multiple mergers so that it is clearer to identify the partners by their individual
names.

Question 3

Partnerships

Answer 3

This is a rule that aids convenience in the proceedings because the use of the firm name is merely
shorthand for listing partners individually; the partnership is not a separate legal entity.
Therefore, generally, claims will be brought in or against the name of the partnership.
If it seems likely that it will be necessary to seek enforcement of judgment against the partners’
personal assets, as well as the partnership assets, it is useful to name the parties personally to
avoid any argument at the enforcement stage. A compromise solution is to use the partnership’s
name and to set out the individual names of the partners

Question 4

Full name for a partnership

Answer 4

The full name for a partnership (other than an LLP) will be the full name by which the partnership
is known where partners are being sued in the name of the partnership, or the full unabbreviated names of each partner where the partners are being sued as individuals (although see note above about suing in the partnership name). For example:

Question 5

At the time the cause of action is acrued

Answer 5

The partnership name must be the name at the time the cause of action accrued; if the
partnership dissolves before proceedings are issued, the claim is made against the former
partners in the name of the dissolved firm.
A claim can also be brought against a business name as if it were the name of a partnership if a
claim is brought against an individual who carries on business within the jurisdiction in a name
other than that individual’s own name (CPR 7A PD 5C).

Question 6

For sole traders, commonly both the individual and trading name will be used when describing a
party to the claim. For example:
Example: Sole traders
John Flagstone (trading as John’s Café)

Answer 6

For sole traders, commonly both the individual and trading name will be used when describing a
party to the claim. For example:
Example: Sole traders
John Flagstone (trading as John’s Café)

Question 7

1.3 LLPs

Answer 7

An LLP is a separate legal entity distinct from its members (for example, it can hold property,
employ people and enter into contractual obligations). The members of an LLP have limited
liability because the LLP is liable for all its debts to the full extent of its assets. [Note that theimpact for its members is that they have contributed to the LLP’s assets and risk losing that amount should the creditors claim those assets].
Almost all LLPs will contract with their clients on the basis that the contract is with the LLP and that clients agree ‘not to sue members personally’. Therefore, in the case of an LLP registered in England and Wales, the claim would be brought against the full registered name, including the
suffix LLP, for example:

Question 8

1.4 Companies

Answer 8

As the claim form must include the full name of each party, for a company registered in England
and Wales this is the full registered name, including the suffix (such as plc or limited), if any. For
example, Example: Company
Rockstone Limited

Question 9

A company may be represented at trial by an employee if:

Answer 9

• The employee has been authorised to do so by the company and
• The court gives permission

Question 10

1.5 Trusts and deceased persons
1.5.1 Trusts

Answer 10

A claim can be brought by or against trustees, executors or administrators. It is not necessary to
add the beneficiaries of the trust or estate as parties to the claim (CPR 19.7A). Any order made in
the claim is binding on the beneficiaries (unless the court orders otherwise).

Question 11

1.5.2 Deceased persons

Answer 11

Where a person who had an interest in a claim has died and that person has no personal
representative the court may order CPR 19.8(1):
* The claim to proceed in the absence of a person representing the estate of the deceased; or
* A person to be appointed to represent the estate of the deceased.

Question 12

Where a defendant against whom a claim could have been brought has died CPR 19.8(2):

Answer 12

• If a grant of probate or administration has been made, the claim must be brought against the
  persons who are the personal representatives of the deceased.
• If a grant of probate or administration has not been made:
  the claim must be brought against ‘the estate of’ the deceased; and
• the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

Question 13

1.6 Children and protected parties

Answer 13

Claimants are legally incapable of pursuing claims on their own behalf if they are a child or a protected party. Therefore, CPR 21 contains special provisions which apply in relation to children and protected parties

Question 14

Definition of child and protected party

Answer 14

Child: Any person under the age of 18 years (CPR 21.1(2))
Protected party: Any person who lacks capacity to conduct the proceedings within the
meaning of the Mental Capacity Act 2005. This means that by reason of impairment or
disturbance of the brain or mind, the party is unable to make the decision in question at the
time it needs to be made (CPR 21.2(1)).

Question 15

Presumption of capacity

Answer 15

A person of adult age is presumed to have ‘capacity’ until the contrary is proved. The burden of proving the contrary rests with whoever asserts incapacity. The legal advisors must be satisfied that a party is capable of understanding, with the assistance
of such proper explanation from legal advisers (and experts if required), the issues on which the party’s content or decision is likely to be necessary during the proceedings.

Question 16

In determining the issue of incapacity, the legal advisers should ask (Martin Masterman-Lister v (1)
Brutton & Co (2) Jewell & Home Counties Dairies [2002] EWCA Civ 1889):

Answer 16

Can the person recognise the problem they encounter?
* Can the person explain with sufficient clarity the problem to those from whom they seek
appropriate advice?
* Can the person understand and evaluate the advice received from an appropriate source?
* Can the person understand the effects of choosing one course of action over another and give
effect to their chosen course through instruction?

Question 17

Determining the issue of capacity

Answer 17

In practice, the legal advisors must satisfy themselves that the party has the requisite capacity to
bring or defend proceedings. Quite often this may involve an assessment and report by the party’s GP. If there are legitimate concerns that a client does not have legal capacity to deal with the case, advice may have to be sought from a psychologist or psychiatrist. The court may also
require the personal evidence of the solicitor or family and friends.

Question 18

In determining the issue of incapacity, the legal advisers should ask (Martin Masterman-Lister v (1)
Brutton & Co (2) Jewell & Home Counties Dairies [2002] EWCA Civ 1889)

Answer 18

In practice, the legal advisors must satisfy themselves that the party has the requisite capacity to
bring or defend proceedings. Quite often this may involve an assessment and report by the
party’s GP. If there are legitimate concerns that a client does not have legal capacity to deal with
the case, advice may have to be sought from a psychologist or psychiatrist. The court may also
require the personal evidence of the solicitor or family and friends.

Question 19

1.6.1 Who is a litigation friend?

Answer 19

Children and protected parties are represented in civil proceedings by a litigation friend whether they are commencing or defending the proceedings (CPR 21.2). A person may act as a litigation friend (with or without a court order) provided they CPR 21.4(3):
* Can fairly and competently conduct proceedings on behalf of the child or protected party.
* Have no adverse interest to that of the child or protected party; and
* Where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party

Question 20

1.6.2 Appointment of a litigation friend

Answer 20

The litigation friend is often a relative or a person the court has appointed to act on the party’s behalf. Often appointments for a litigation friend are made without court order by filing and serving of a
certificate of suitability demonstrating that the litigation friend satisfies the criteria in CPR 21.4(3) either at the time the claim is made (if the child or protected party is the claimant) or when the
child takes the first step in the proceedings (if the child or the protected party is the defendant). If
a court order is required, a specific procedure must be followed (CPR 21.6).

Question 21

1.6.2 Appointment of a litigation friend

Answer 21

Alternatively, for a protected party, the Court of Protection may appoint someone to conduct proceedings on the protected party’s behalf (CPR 21.4(2)). The court may also make an order permitting the child to conduct proceedings without a litigation
friend (CPR 21.2(3)).

Question 22

1.6.3 Service on children and protected parties

Answer 22

There are special provisions for the service of documents on children and protected parties (CPR
6.25).
Any document due to be served on a child or a protected party must be served on the litigation
friend. (For an application for an order to appoint a litigation friend there are different service
provisions (CPR 21.8)).
Children and protected parties should be referred to in the title to proceedings on documents (21
PD 1.1 and 1.2):
A child is referred to in the claim form as being represented by his/her litigation friend for
example

Question 23

1.7 Summary

Answer 23

• It is important to refer to the correct parties in the claim form when starting a claim and this will differ according to whether the party is an individual, a partnership, a sole trader, an LLP or a company.
• Claims can be brought against trusts and deceased persons.
• Children and protected parties do not have capacity to pursue claims on their own behalf and therefore they must be represented by a litigation friend.
• A person may act as a litigation friend if they can fairly and competently conduct proceedings
  on behalf of the child or protected party, have no adverse interest to that of the child or protected party and where the child or protected party is a claimant, undertake to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings.

Question 24

2 Where and how to issue the claim

Answer 24

Once the claimant has decided to bring a claim it must:
(a) decide in which court to issue the claim; and
(b) issue the proceedings in that court.
This section covers these two areas

Question 25

2.1 Which court?

Answer 25

The courts, their specialist divisions and the judges sitting in different courts are explained in the
chapter dealing with the civil court system. That information must be considered when deciding in
which court to issue.
There are two principal types of civil court in England and Wales:
* the High Court; and
* the County Court.
The High Court and County Court have concurrent jurisdiction over most claims, which means
that the claimant often has a choice when deciding in which of these courts to issue their claim.
This is explained in a little more detail below.

Question 26

2.1.1 Jurisdiction of the County Court and the High Court

Answer 26

A claim can only be brought in a court if that court has jurisdiction to deal with the matter ie the power to deal with the claim. As mentioned above, the High Court and County Court have concurrent jurisdiction over most claims. The jurisdiction thresholds of each respective court are summarised below (see High Court and County Courts Jurisdiction Order 1991, CPR 7 and PD 7A)

Question 27

2.1.2 Rules governing commencement (CPR 7)

Answer 27

As summarised by the diagram:
* If the value of a claim (other than claims for personal injury) is greater than £100,000, it may be commenced in either the High Court or the County Court (7APD2.1).
* If the value of the claim is £100,000 or less, it may not be commenced in the High Court and should be commenced in the County Court.
* The figure for personal injury claims is less than £50,000 (7APD2.2)

Question 28

The value of a claim is its financial worth (CPR 16.3(6)).

Answer 28

You should disregard:
(a) interest;
(b) costs;
(c) any counterclaim;
(d) any contributory negligence; and
(e) any deduction of social security benefits.
If the claim form is to be issued in the High Court it must state that the claimant expects to
recover more than £100,000 (CPR 16.3(5)).

Question 29

2.1.3 Approach if there is a choice of court

Answer 29

The guidelines for deciding which court the claim should be brought in are contained in 7A PD. The
claim should be commenced where it is likely to be tried.

Question 30

A claim should be started in the High Court if by reason of:

Answer 30

(a) the financial value of the claim and the amount in dispute, and/or
(b) the complexity of the facts, legal issues, remedies or procedures involved, and/or
(c) the importance of the outcome of the claim to the public in general,
the claimant believes that the claim ought to be dealt with by a High Court judge (7A PD 2.4)

Question 31

2.2 Transfer between courts

Answer 31

If the court disagrees with the claimant’s choice once the claim has been issued, the court may
consider whether it should remain in the court of issue. The court may transfer cases between the
High Court and the County Court (CPR 30). The criteria the court will use in deciding where the case should be tried are similar to the factors to be considered where to issue (set out above) but with some additional factors (eg whether a
specialist judge will be available and the facilities at court for disabled witnesses or parties) which will be considered as appropriate to the case in question.

Question 32

What are the consequences of getting this wrong?

Answer 32

• The court may transfer the case and order the claimant to pay the costs of the transfer.
• If the matter continues in the High Court, there is a separate sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be deducted by up to 25%, but this is at the court’s
  discretion (section 51 SCA).

Question 33

2.3 Issuing the claim at court

Answer 33

To issue a claim at court, the claimant’s solicitors must take or send the following to court:
(a) Copies of the claim form (Form N1) to be issued and sealed:
- One copy of the completed claim form to be kept on the court file;
- One copy for every defendant; and
- One copy for the claimant to keep on its own file.
(b) Court issue fee (varies depending on value of claim - check amount online).
There are other documents which the claimant’s solicitors may need to file at court and serve on
the defendant (such as the particulars of claim) but those set out above are the minimum required
to commence proceedings

Question 34

2.3.1 Issuing High Court claims

Answer 34

The date of issue of the claim form is important. It stops time running for limitation purposes and
starts the clock for the time in which the claim form must be served.
If the documents are sent to the High Court, the court will stamp the covering letter with the date
of receipt. This is sufficient to stop time running for limitation purposes.
The documents can also be taken in in person and issued on the same day.
The court issues the claim form by entering a date of issue on the claim form, giving the case a
claim number and sealing (stamping with the court seal) all copies of the claim form.
The court creates a case management file and places its own sealed copy of the claim form on
that file.

Question 35

2.3.2 Issuing County Court claims

Answer 35

The date of issue of County Court claims has the same significance as in High Court claims.
County Court money claims are issued centrally.
Most claims in the county court for money should be issued in the County Court Money Claims
Centre – a central centre that manages the claims until a hearing is required, at which point they
are transferred to a particular local county court hearing centre. This is done by sending the claim
form (Form N1) to the County Court Money Claims Centre and paying the appropriate issue fee

Question 36

2.3.2 Issuing County Court claims

Answer 36

Claims which are not money-only claims can generally be issued at any of the County Court
Hearing Centres by sending in / attending with the claim form (Form N1) and fee. The claimant will also specify its preferred County Court hearing centre on the form, and the
claim may later be transferred to that County Court hearing centre, if a hearing is required (although the court might transfer it to a different hearing centre).

Question 37

2.3.3 Money Claim Online

Answer 37

As an alternative to the procedure set out above, some County Court money claims can be issued
using ‘Money Claim Online’, an online service provided by HMCTS. The money claim online
procedure is designed to provide a very quick and cost-effective resolution for simple claims. The
claimant (or its solicitor) registers with the money claim online service and completes the online
claim form.
This service can only be used for money claims with a value of up to £100,000 which are against
no more than two defendants.
The claim form is served in the usual way, but the defendant may then respond through the online
service. If the claim is defended, it will be transferred to the appropriate local county court hearing centre

Question 38

2.3.4 County Court Business Centre (CCBC)

Answer 38

In addition to the County Court Money Claims Centre (and Money Claim Online), users who are
going to issue many claims (eg utility companies) can become registered users at the Northampton County Court Business Centre, which provides a particular service for such ‘bulk users’.

Question 39

2.4 Summary

Answer 39

• The County Court and High Court have concurrent jurisdiction over most claims.
• Personal Injury claims of up to £50,000 and other (non personal injury) claims of up to
  £100,000 must be brought in the County Court.
• Where there is a choice of where to issue, the factors in 7A PD 2.4 must be applied to the case.
  The court may transfer claims issued in the wrong court and costs consequences may follow
  for the claimant if they issued in the wrong court.
• The claim form (Form N1) is the document that must be taken or sent to the appropriate court
  to start the claim, with payment of the court issue fee.
• The date of issue of the claim form is important as it stops time running for limitation purposes
  and starts the clock for the time in which the claim form must be served.
• In the County Court, it may be appropriate to start proceedings in the County Court Money
  Claims Centre (for money claims), via Money Claim Online (for money claims up to £100,000
  against two or fewer defendants), in the County Court Business Centre (for the bulk issue of
  claims by registered users) or otherwise at a Hearing Centre.

Question 40

3 Service

Answer 40

Service is the process of giving a document to another party in an action in a way which is
recognised by the court.
* There are separate rules for service of the claim form and for service of other documents.
* This section focuses on service of the claim form and other documents within the jurisdiction ie
within England and Wales.
Considerations in relation to service of the claim form can be placed into three areas of concern.

Question 41

3.1 Who will effect service of the claim form?

Answer 41

The claim form may be served either:
(a) by the court; or
(b) by the claimant / claimant’s solicitor.
If the court serves the claim form, service will usually be by first class post. Once the court has
effected service, it will send the claimant a notice of issue stating the deemed date of service. If the court is unable to serve the claim form for any reason, the claimant will be sent a notice of non-service. It is then up to the claimant to try to serve the claim form on the defendant.

Question 42

3.1 Who will effect service of the claim form?

Answer 42

If the claimant / claimant’s solicitor wishes to serve the claim form, they must notify the court
when issuing the claim form that they do not wish the court to serve it. The court will give or send
the claimant / claimant’s solicitor the issued claim form with sealed copies for service on the
defendant(s). The claimant effects service (explained below). The claimant’s solicitor must then file
a certificate of service at court within 21 days of service, certifying details of the date on which
the claim was posted/delivered/transmitted and the method and address used (CPR 6.17). It is not
necessary to file a certificate of service if all of the defendants have filed an acknowledgment of
service within that time

Question 43

3.2 How should service of the claim form be effected?

Answer 43

The court will use first class post to effect service, but where the claimant effects service, there are a number of other permissible methods of service as well

Question 44

3.2.1 Methods of service for the claim form

Answer 44

It is essential that service of the claim form is effective and valid. This means it must be by a
method recognised as valid by the CPR. If it is not, service may be invalid and the claimant may
be unable to obtain judgment or enforce any judgment obtained.
There are various methods of serving the claim form:
* Personally on the defendant
* Leaving the document at a permitted address
* First class post
* Document exchange (DX)
* Fax
* Other electronic method (eg email)
* Any other method authorised by the court

Question 45

Personal service

Answer 45

Personal service means physically leaving the claim form with a defendant who is an individual, or
an appropriate person in the case of a company or similar legal entity (CPR 6.5).

Question 46

Leaving the document at a permitted address

Answer 46

This means depositing the claim form at a permitted address (whether or not there is someone present to receive it). ‘Permitted addresses’ are explained on the next page.

Question 47

Service by first class post or DX

Answer 47

This means posting the document to a permitted address using first class post, or using ‘DX’
(which stands for Document Exchange) – a system used by legal professionals which provides for
delivery on the next business day.

Question 48

Service by fax

Answer 48

Service by fax is only permitted if the defendant / its solicitor has indicated it will accept service
by fax.

Question 49

Service by other electronic method

Answer 49

Service by email is only permitted if the defendant / its solicitor has indicated it will accept service
by email.

Question 50

3.2.2 Place of service for the claim form

Answer 50

Where personal service is used, the defendant can be personally served wherever they are found within the jurisdiction. This method of service does not rely upon an address for service for the defendant. Where fax or email is used, the defendant will indicate the fax number / email address for services. When leaving the document at a permitted address or using post / DX, thought needs to be given to which address to use.

Question 51

3.2.2 Place of service for the claim form

Answer 51

If the defendant gives in writing a solicitor’s address in the jurisdiction for service, or their solicitor
does the same, service must be to the solicitor’s address (CPR 6.7).
Otherwise, the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings (CPR 6.8)

Question 52

3.3 When must the claim form be served?

Answer 52

There is a time limit within which the claim form must be served after it is issued.

Question 53

3.3.1 Time limit for service of the claim form

Answer 53

Claim forms do not remain ‘valid’ indefinitely after they are issued. Where the claim form is being
served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed before
12.00 midnight on the calendar day four months after the date of issue of the claim form.

Question 54

Relevant step for service of a claim form

Answer 54

If the claim form is not served within this time, then the claim will fail automatically. If the claimant
still wishes to pursue the claim, it will need to issue a new claim and pay the court fee again (and
for limitation purposes, the date the new claim is issued will be the relevant date).

Question 55

3.3.2 Extension of time to serve the claim form

Answer 55

If it is not possible to serve within the time limit, the claimant may consider applying to the court for an extension of time under CPR 7.6 (although this is not easy to obtain because the rules are very strict). The application should be made within the four month period of validity of the claim form, and the claimant will need to show good reasons for the extension.
Waiting for further evidence or for a response from the defendant to pre-action correspondence is unlikely to be a good reason.

Question 56

3.3.2 Extension of time to serve the claim form

Answer 56

If the application is made after the deadline for service of the claim form has already passed,
then the court will grant an extension only if:
* it is the court that failed to serve the claim form; or
* the claimant has taken all reasonable steps to comply; and
* either way, the application has been made promptly.
Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the
defendant is unlikely to justify an extension in these circumstances.

Question 57

3.4 Serving the particulars of claim

Answer 57

The particulars of claim are where the claimant sets out its claim in detail. The claimant can
choose to include these within the claim form itself, or can serve the particulars of claim in the
form of a separate document either with the claim form, or to follow later.
If the particulars of claim are contained in or served with the claim form, the claimant must also
serve the response pack along with the claim form and particulars of claim (CPR 7.8(1)). The
response pack (Form N9) contains:
* form for admission;
* form for defending; and
* form for acknowledging service.

Question 58

3.4 Serving the particulars of claim

Answer 58

If particulars of claim are not contained in or served with the claim form they must be served
within 14 days of service of the claim form, and also within the period of validity of the claim form,
ie within 4 months of issue, assuming service within the jurisdiction (CPR 7.4(2)). Where the particulars of claim are to follow, the claimant should serve only the claim form: the
response pack will be served later, with the particulars of claim. Once the particulars of claim are served, the claimant must file a copy at court within 7 days of service, unless they
have already been filed (CPR 7.4(3)).

Question 59

3.5 Serving documents other than the claim form

Answer 59

The various permitted methods of serving documents other than the claim form are the familiar
methods we have already looked at (CPR 6.20):
* Personal service
* Delivering to or leaving the document at a permitted address
* First class post / document exchange (DX)
* Fax or other electronic method (eg email)

Question 60

3.5 Serving documents other than the claim form

Answer 60

In terms of the address for service (where an address is needed), when responding to the claim the
defendant must give an address at which documents may be served going forwards (often the
defendant’s solicitors’ address). That address is then used going forwards.

Question 61

3.6 What happens after service of the claim form and particulars?

Answer 61

The steps outlined above convey the claim form and particulars of claim to the defendant.
It is then necessary to consider when these documents are ‘deemed served’ on the defendant ie
when they are treated as having been received by the defendant. This is addressed in the section
‘Deemed dates of service’.
The defendant is required to respond to particulars of claim if it wishes to contest the claim.

Question 62

3.7 Summary

Answer 62

• Service of the claim form and ‘other’ documents have different and distinct rules.
• There are several permissible methods of service under the CPR for both the claim form and
  other documents. These include personal service, post, email and fax.

Question 63

3.7 Summary

Answer 63

• Personal service can be effected wherever in the jurisdiction the recipient is located and does
  not rely upon having an address for the recipient.
• Other non-electronic methods require an address and the rules cover how to establish which
  address must be used when serving the claim form.
• The claim form must be served by taking the ‘relevant step’ as set out in the rules by 4 months
  after issue of the claim form

Question 64

4 Deemed dates of service

Answer 64

The exact date when a document is served is often very important in litigation.
The date of service might be the date from which an important response deadline is calculated
which, if missed, could have a significant impact on the ability to defend the claim.
In an effort to achieve clarity on this point, the CPR uses the concept of deemed date of service
whereby the rules prescribe the date the court considers a document to have been served,
irrespective of the date it was actually received by the recipient

Question 65

4 Deemed dates of service

Answer 65

• The concept of deemed date of service applies equally to the claim form and to ‘other’ documents, though there are different rules for each.
• The deemed date of service will be calculated according to the applicable rule and by reference to the method of service used.

Question 66

4.1 Deemed date of service of the claim form

Answer 66

It is important to know the deemed date of service of the claim form:
* For the claimant: because the time limit for serving the particulars of claim (if the particulars of
claim are not included within or served with the claim form) runs from the deemed date of
service of the claim form; and
* For the defendant: because the deadline for serving a response to the claim form (if the
particulars of claim are included within it or served at the same time as it) runs from the
deemed date of service of the claim form.

Question 67

4.1 Deemed date of service of the claim form

Answer 67

A claim form is deemed served on the second business day after completion of the “relevant
step” (CPR 6.14).
‘Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day (CPR 6.2). The relevant step relates to the step necessary to effect service by each particular method and
this is explained in the section above on service. By way of example, when serving by post, the
‘relevant step’ is posting the claim form.

Question 68

Example: Deemed date of service of the claim form

Answer 68

A claim form is served by email on 5 September. Please assume that is a Wednesday. The relevant
step is the sending of the email. The second business day after this step is Friday 7 September, which is therefore when the claim form will be deemed served. It is likely that the claimant can show that the defendant received the claim form almost
immediately after it was sent, on Wednesday 5 September. This is irrelevant. It will still be deemed
served on Friday 7 September

Question 69

4.2 Service of the particulars of claim

Answer 69

As explained earlier, the particulars of claim can be included within the claim form, or in the form
of a separate document which can either be served with the claim form or follow later.
* If particulars of claim are contained in the claim form, they are clearly part of the claim form
and the rules on deemed service above apply, as described above.

Question 70

4.2 Service of the particulars of claim

Answer 70

If the particulars of claim are attached to or served with the claim form in a separate
document and contained in the same envelope, then there is some ambiguity in the rules as to
whether the rules and time limits described above apply to the particulars of claim too, or
whether the rules set out below which apply to documents other than the claim form apply
(which could lead to the claim form and particulars of claim being deemed served on different
dates, despite being in the same envelope). A party responding to proceedings would be
prudent to act on the assumption that the particulars are served at the earliest possible date.

Question 71

4.2 Service of the particulars of claim

Answer 71

If particulars of claim are served separately from the claim form, ie served within 14 days after
service of the claim form (CPR 7.4(1)(b)) then the rules set out below which apply to documents
other than the claim form will apply to those particulars of claim

Question 72

4.3 Deemed date of service of documents other than the claim form

Answer 72

In relation to deemed date of service of all documents other than the claim form, the deemed date of service is not a uniform time after the step taken to serve was taken (as in the case of the claim form) but, instead, varies according to the method of service chosen (CPR 6.26):

Question 73

4.3 Deemed date of service of documents other than the claim form

Answer 73

• Instant methods (personal service, fax, email, delivering/leaving at a permitted address. If
  done before 4.30pm on a business day: deemed served the same day. Otherwise: deemed
  served the next business day
• Not-instant methods (Post / DX) Deemed served second day after posting / giving to DX
  provider, if a business day. Otherwise: deemed served the next business day

Question 74

Example: Deemed service of the particulars of claim

Answer 74

Particulars of claim are served (separately from the claim form) by email at 2.30pm on 5
September. Please assume that day is a Wednesday.
In accordance with the rules set out above for ‘Deemed date of service of documents other than
the claim form’ that an ‘instant method’, and was carried out before 4.30pm on a business day.
Accordingly, the particulars of claim will be deemed served on the same day as the email
transmission - Wednesday 5 September.

Question 75

4.4 Summary

Answer 75

• It is the ‘deemed date of service’ (rather than the actual date of receipt) that is relevant under
  the CPR and this is calculated according to the rules and depends upon the document served
  and method of service used.
• Claim forms are deemed served on the second business day after the relevant service step has
  been completed (CPR 6.14) whatever method of service is used.

Question 76

4.4 Summary

Answer 76

Other documents are deemed served in accordance with CPR 6.26 and the date varies
according to the method of service used:
- When using an ‘instant method’ of service:
◦ If done before 4.30pm on a business day: deemed served the same day.
◦ Otherwise: deemed served the next business day
- When using a ‘non-instant method’ of service:
◦ Deemed served second day after posting / giving to DX provider, if a business day.