Are you being served?

Proper service of a claim form is fundamentally important and, in principle, it should be easy to do. However, due a combination of the complicated…

Proper service of a claim form is fundamentally important and, in principle, it should be easy to do. However, due a combination of the complicated rules which govern service and human error, claimants and their representatives can and do get it wrong, sometimes with fatal consequences. Jeff Turton considers some of the basics of service, and looks at an example of how it can go wrong, and what can defendants and insurers can do in those circumstances. 

CPR 6 and 7 set out the rules relating to service. CPR 6.5 states that, where required by another Part, any other enactment, a practice direction or a court order, a claim form must be served personally. In other cases, a claim form may be served personally except where rule 6.7 applies or in any proceedings against the Crown. CPR 6.7 states that where a defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service, the claim form must be served at the business address of that solicitor. CPR 7.5 states that, where the claim form is served inside the jurisdiction, it must be served before midnight on the calendar day four months after the date of issue of the claim form. Put simply, a claimant has four months within which to serve his claim form properly, in default of which, he risks that claim form becoming irrecoverably defective. 

Weightmans LLP recently acted in a case where the claimant issued a claim form out of Liverpool County Court, served on the defendant's business address, obtained a default judgment and had entitlement to damages and costs assessed at a disposal hearing to the tune of around £55,000. Presumably for tactical reasons, only then had the solicitors decided to notify the insurer concerned that the claimant had made good on his threat to issue proceedings, which had been made over 12 months earlier.   

The bad news for the claimant was that, before proceedings were issued, the insurer and Weightmans LLP had, under CPR 6.7(1), nominated Weightmans LLP to accept service of proceedings. That nomination made service on Weightmans LLP mandatory (see Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA Civ 127). The claimant had failed, therefore, to effect service and as his solicitors had sat on the default judgment, four months had now long passed since proceedings had been issued.

Accordingly, an application was made on the defendant's behalf which sought to have the judgment set aside and the claim struck out. The defendant also sought, under CPR 25.8, repayment of a ‘without prejudice’ payment which had been issued to the claimant before proceedings had been issued. Neither the claimant nor his representatives, who were no doubt ruing the decision to sit on the default judgment, appeared at the hearing and the court made the orders sought, including that the claimant must pay the costs.

The message to defendants and their insurers is that, whilst on the face of it, service errors may appear harmless, they are critically important, as mistakes can costs claimants dear. And those mistakes occur more frequently than one would expect.

For further advice on the rules governing service and how best to protect your interests before and after proceedings are issued, please contact Jeff Turton in Weightmans’ Liverpool Motor Investigation Unit on 0151 242 6968 or at jeff.turton@weightmans.com

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