Key takeaways
Correct service rules are critical to jurisdiction
The Civil Procedure Rules set strict requirements for valid service especially when a solicitor’s address has been confirmed.
Courts may allow alternative service methods
Judges can authorise service by other means if the defendant is aware of the claim and justice would not be compromised.
Strict deadlines apply under CPR Part 11
To challenge jurisdiction, defendants must file an acknowledgment and application within 14 days, supported by clear evidence.
Picture the scene - notification of a potential claim has been provided to your member and the matter referred to MPS. Despite MPS involvement, and perhaps even express confirmation that service should be effected on MPS, proceedings are then served on your member. What does this mean for your member? Have proceedings been validly served and should an acknowledgement be filed?
‘The rules’
The starting point is CPR 6. A distinction is drawn in the rules between the confirmed address for service of a solicitor versus a non-solicitor, namely:
Part 6.7(1)(a) makes it mandatory that where a solicitor’s address has been confirmed for the purposes of service, the claim form must be served at the business address of that solicitor.
Part CPR 6.8 relates to the address of a non-solicitor, where that has been confirmed for the purposes of service, and states that it is not mandatory to serve on this address.
The first key question therefore is: is the MPS file handler a solicitor? There is scope to argue between the application of Part 6.7 and Part 6.8, but evidence that may help determine this point is, for example, where letterheads confirm the file handler to be a solicitor and correspondence has been sent to the effect that the file handler advising the member in the role of solicitor
Court discretion
Notwithstanding the mandatory requirement of CPR Part 6.7, there is scope for court discretion to authorise service via an alternative method, pursuant to CPR 6.15, is there is a ‘good reason’ to do so. It should therefore next be considered whether there is good reason, in the individual case, for the court to exercise its discretion. This is a consideration to be applied on a case by case basis, but factors such as those listed below may be taken into consideration:
whether the defendant has sufficiently been made aware of the claim form existence and content;
whether the claimant has served in good time or left it until the final deadline;
whether reasonable steps had been taken by the claimant to ascertain the correct address for service;
the interests of justice, where a defendant has not been prejudiced by the incorrect service; and
the county court judge/high court master who will be hearing the application, should you proceed in disputing jurisdiction.
Steps to take
If, after all this, you feel that jurisdiction for the court to try the claim should be disputed, for reason of invalid service, you will need to follow CPR Part 11 in:
Filing an acknowledgement of service within 14 days, as usual, ticking the box to dispute jurisdiction. NB. It is worth leaving this until the last/penultimate day for acknowledging, as you will then need to …
File an application to dispute jurisdiction, with supporting evidence, within 14 days of filing the acknowledgement of service.
In summary …
The prospect of success in these applications varies significantly depending on the facts of each case and, given the CPR 6.15 discretion, the judge who hears the application.
In Ebela -v- Baardarani [2013] UK SC44 and Higgins & ors -v- ERC Accountants & ors [2017] EWCH 2190 mere knowledge of the claim form through the invalid method used, was not enough without further ‘good reason’ for the court to perfect invalid service; in those cases copies of proceedings were provided to the defendant’s solicitors for information and explicitly stated not to be by way of service. However, in Norcross -v- Chrislos Georgallides [2014] EW HC 4530 service at the wrong address for the defendant was not enough to invalidate service, as the defendant became aware of the proceedings during the validity of the claim form and suffered no prejudice.
The case of Barton -v- Wright Hassall LLP [2016] C.P Rep 29, involved a litigant in person who, after being prompted by the defendant’s solicitors that they were instructed to accept service of proceedings and would not extend this deadline, and reminded by them of the deadline, served by email on the last date for service. The court held that this was not effective service. This claim is currently under appeal, with judgment awaited and will hopefully provide some clarification on this area of the CPR after previously inconsistent application of the rules. Watch this space …!