DR2 - Service of Proceedings

Question 1

Why is service of a claim a critical step?

Answer 1

Because it triggers the defendant’s obligation to respond.

Question 2

Within how long of issue must a sealed claim form be served on the defendant where they are (1) within the UK and (2) outside the UK, and what is this period known as?

Answer 2

In the UK: Four calendar months
Outside the UK: Six months

It is known as the claim form validty period

E.g. a claim form issued on 20 January to be served on the defendant who is living in Bristol. The claimant must complete the step required by the CPR, in relation to the particular method of service chosen, before 12:00 midnight on 20 May.

Question 3

If a claimant wishes to apply to have the claim form validity period extended, within what time period must the application be made, and only in what circumstances will the court grant it?

Answer 3

Application must be made within
* The original validity period
* The court will only grant it in exceptional circumstances

Question 4

Where a claimant’s solicitors as opposed to the court will serve proceedings, what must the claimant ensure is enclosed, otherwise the court won’t deem service effective?

Answer 4

The response pack.

Question 5

On whom must proceedings be served on when the defendant has nominated solicitors to accept service and where
1) Defendant is an individual
2) Defendant is a company?

Answer 5

Individual: must be served on solicitors, otherwise ineffective
Company : Solicitors or also may be delivered or posted to the company’s registered address

Question 6

In the case of personal service to a company, who can accept service?

Answer 6

Any person holding a senior position.

Question 7

In the case of personal service to a partnership being sued in the in the firm name who can accept service?

Answer 7

A partner, or any person who had control or management of the parntership business as its principle place of business at the time of service

Question 8

On whom should the claim form be served on if the defendant is an individual, and solicitor’s have not accepted service?

Answer 8

On the individual.

Question 9

Does the person being personally served have to take hold of or retain the papers?

Answer 9

No, as long as the process server has explained the general nature of the documents.

Question 10

How can the claim form usually served?

Answer 10

• Either by the court / by the claimant / by the claimant’s solicitor - 1st class post

Question 11

Where the claim form is served by the claimant, what must be filed at court and when?

Answer 11

Claimant’s solicitor must file a certificate of service at court
* within 21 days of service
* Unless all defendants have filed an ackowledgement of service within that time

Question 12

What are permissible methods of serving the claim form?

Answer 12

Methods of serving the claim form
* Personally service (hand it at them / throw on feet)
* First-class post / DX
* Leaving claim form at a specified place e.g. lawyers office if they have confirmed acceptance of service

If expressly confirmed
* Fax, email electronic communication (a recpient indicated in writing that they are willing to accept service by fax / electronic)
* Solicitor letterhead - implies that they accept this mode of service

Any method authorised by the court
* In certain exceptional circumstances, the court can authorise service of the claim form by a different method, such as posting or delivering it to someone who knows the defendant or authorising service by text message, facebook

Question 13

When is the deemed date of service for the particulars of claim form?

Deemed service - a document or application is legally treated by the CPR as having been served on the person, irrespective of whether it actually arrived

Answer 13

2 business days after the relevant step required (i.e. putting the claim in the post)
* Business days means any day except weekend, bank holiday, good friday or christmas day

E.g. if a claim form is sent by post on Monday, deemed served on Wednesday.

Question 14

A firm of solicitors authorised to accept service by email and receives the claim form by an email sent on Saturday and Monday is a Bank holiday. When is it deemed served?

Answer 14

2 Business days.

• Therefore, Sunday, Monday (don’t count)
• Tuesday (1st business day)
• Wednesday (2nd business day)

Deemed service = Wednesday

Question 15

What is the deemed service of other documents (not claim form)?

For service by personal service, delivering the document to a permitted address, fax, email.

Other documents - e.g. defence or part 36

Answer 15

• If served before 4:30pm on a business day - that business day
• If not, next business day

Question 16

What is the deemed service of other documents (not claim form)?

For service by First class post or DX

E.g. defence or part 36

Answer 16

• The second day after it was posted provided that day is a business day
• If not, on the next business day

E.g. A defence was posted first class on Tuesday, the day of deemed service is Thursday (second day after it was posted as it is a business day)

Question 17

What is the important rule regarding particulars of claim if they are served separately?

Answer 17

• If a particulars of claim form is marked ‘to follow’
• Within 14 days after the claim form has been issued.
• No later than 4 months after the date of issue of the claim form (final date)

4 months: ULaws LLP are instructed by a client to issue proceedings. They issue a claim form marked ‘particulars of claim to follow’ on 5 March. The four month deadline for serving the claim form expires at 12 midnight on 5 July.

14 days: The solicitors decide to serve the claim form on 10 April. As soon as they do this, the (separate) clock starts ticking for service of the particulars of claim. This must be done within 14 days so by 24 April.

4 months example 2: In an alternative scenario, having issued the claim form, ULaws LLP have difficulties in tracing the defendant and are unable to serve the claim form until 27 June. In this instance, the solicitors only have until 5 July to serve the particulars of claim, so less than 14 days, because they are approaching the (long stop) deadline of four months

Question 18

What is the deemed service for a ‘Particulars claim to follow’ form? (i.e. it has not been sent with the claim form)

Answer 18

1) Personal service, delivering the document to a permitted address, fax, email
* If served before 4:30pm on a business day, on that day
* If not, on the next business day

2) First class post or DX
* The second day after it was posted provided that day is a business day.
* If not, the next business day

Remember DX, FAX, EMAIL are DIFFERENT

Example:
1) The particulars of claim is served after the claim form. It is left in a numbered box at the Document Exchange (DX) on Friday. The day of deemed service is the second day after it is left (as it is DX method fo service), provided this is a business day.
The second day will be Sunday but, as this is not a business day, the day of deemed service is the next day, Monday.

2) A document is sent by fax on a Saturday and the transmission of that fax is completed by 11.25am. Although this occurs before 4.30pm, Saturday is not a business day and so does not count as the day of deemed service. The next business day will be
Monday and this is the date of deemed service.

Question 19

If the day on which the period ends is by reference to an event e.g. 14 days before a hearing? Is the date of the hearing counted as a ‘clear day’?

Answer 19

No. The date of the event is not regarded as a clear day

Question 20

What is the rule regarding a period specified as 5 days or less?

Answer 20

Weekends and bank holidays are not included.

Question 21

What is the position regarding service within the EU?

Answer 21

• Provided English courts have jurisdiction over the claim, and the claim was issued after 1 January 2021 (post EU withdrawal), permission from the court to serve a claim form and documents in an EU country will be required prior to the service taking place

Claim issued before 21 January
* No permission of court to serve the document in EU state will be required

Question 22

What is the position regarding service outside the EU?

Answer 22

• Permission from the court will have to be sought to serve the claim form and associated documentation in a country outside the EU
• When the courts grant permission they will automatically extend the time period for service to 6 months after the claim form was issued.

Question 23

What is method of service outside the England / Wales jurisdiction?

Answer 23

• Once permission to serve outside the jurisdiction has been obtained from the court

1) Service through the government of the destination country (if the government is willing not to do this)

2) Service by any method permitted by the law of detination county.

• The claimant should provide the claim form, and other documentation provided to the authorities in England and Wales who then submit that to the authorities in the country in which the defendant is to be served
• Foreign authorities will then serve the document and provide a certificate of service

Question 24

For claims outside the UK jurisdiction, a claim form must be accompanied by a notice setting out the grounds on which the claimant is entitled to serve it outside the jurisidction together with evidence that England and Wales is the proper forum?

What are examples of the grounds that may be relied upon?

Answer 24

Example of grounds that may be relied upon are:
* Breach of contract - occured in England and Waes or the excessive cost or delay of the case being heard in a foreign court
* Application must be supported by evidence and is made without notice
* If an order permitting service outside the jurisdiction is made, the time limit for responding to the claim will be extended.
* Service is usually effected through the judicial authorities of the State in question or the British Consul

Question 25

What will satisfy the requirement that a party must give a fax number to be contacted on?

Answer 25

A fax number on the firm’s writing paper, unless an express indication to the contrary is given

Question 26

What are the 3 requirements for service to be sent by DX?

Answer 26

1. Party’s address for service contains a DX number
2. DX number is on the party’s writing paper
3. No express indication that service by DX is not acceptable

Question 27

What are the two requirements for service to be sent by email?

Answer 27

1. Express consent, even if already communicating by email
2. Party has given an email address to be contacted on

Question 28

What are the steps required to validate service in the case of
1) Personal service
2) Post or DX
3) Fax
4) Other electronic method?

Answer 28

1. Personal service - leave claim form with the relevant person, or collection by the relevant service provider
2. Post or DX - post, or leave with service provider
3. Fax - complete fax transmission
4. Other electronic method: send email or other electronic transmission

Question 29

When is the claim form deemed to be served and does this depend on the method used?

Answer 29

Irrespective of method used, the claim form is deemed served on the second business day after the steps required to effectuate service

Question 30

What is the clear day rule per the Civil Procedure Rules?

Answer 30

Any day other than Saturday, Sunday, a bank holiday, Good Friday or Christmas Day

Question 31

What should a claimant do if they believe a defendant no longer lives at an address?

Answer 31

Take reasonable steps
make reasonable enquiries to ascertain the defendant’s current address

Question 32

If the claimant cannot ascertain the defendant’s address after taking reasonable steps and making reasonable enquiries, what can they do?

Answer 32

Serve on the defendant’s last known address

Question 33

If a defendant wishes to argue that service of proceedings was invalid, where do they indicate this and within what time period must they make an application?

Answer 33

Indicate on acknowledgement of service, within 14 days.

Question 34

What must a claimant show to the court to be granted an order to permit service by alternate means or in an alternative place?

Answer 34

Good reason for the order (other methods ineffective or impossible) on application to court

Question 35

Can an order to permit service by alternate means or in an alternative place be made retrospectively, and may the court deem steps already taken to be good service?

Answer 35

Yes if there is a good reason

Question 36

When will the court grant an order to dispense with service?

Answer 36

Normally only if other side already aware of the claim.

Question 37

When is permission not needed to serve a claim form outside the jurisdiction?

Answer 37

No, it is not necessary to seek the court’s permission to serve proceedings out the jurisidiction if the Courts of England and Wales have jurisdiction because:

a) The Hague Convention on choice of court agreements give the court jurisidction
b) A contract contains a term giving court jurisdiction

Permission of the court will be required to effect service in other circumstances (i.e. common law gives jurisdiction).

Question 38

Is permission required to serve proceedings in Northern Ireland and Scotland?

Answer 38

• Permission is not required to serve proceedings in these countries

Question 39

How should an application to extend deadline to serve claim form be made?

Answer 39

• Application should be made within the found month period of validity for the claim form, and the claimant will need to show good reasons for the extension.
• After the deadline court will grant an extension only if:
  1) Court failed to serve the claim form
  2) Claimant has taken all reasonable steps to comply
  3) Both cases - applied promptly