Rules Update - service of Claim Form

01/07/2009

Despite the amendment to the provisions in relation to service of a claim form by fax in October last year, the formalities that have to be carefully complied with for there to be valid service of a claim form.

In Brown and others v. Innovatorone plc & Ors , the seventh defendant, Mr Bailey and eighth defendant, Collyer Bristow, sought declarations that the claim forms sent by fax to their solicitors had not been validly served on them.

On 17 February 2009 the Claimants' solicitors sent the Claim Form by fax to Mr Bailey's solicitors (Byrne & Partners) at 9:48 pm and to Collyer Bristow's solicitors (Beachcroft LLP) at 9:53pm. This was the last date for service of the Claim Form pursuant to CPR Part 7.5(1). On 12 January 2009 Beachcroft wrote to the Claimant's solicitors stating that they acted for Collyer Bristow. On 26 January 2009 Byrne & Partners wrote to the Claimants' solicitors confirming that they had been instructed by Mr Bailey, and asked that correspondence be sent to them.

Both firms wrote to the Claimants' solicitors on paper that set out their respective fax numbers, but neither said they had been authorised to accept service on behalf of their clients. Nor had they been asked by the Claimants' solicitors. By 17 February Byrne & Partners had not been so instructed, but Beachcrofts had been. Neither Beachcrofts nor Byrne & Partners forwarded the Claim Form to their clients on 17 February 2009.

The Claimant contended that the service was valid, or alternatively that the intended service should stand as good service by an alternative method pursuant to CPR Part 6.15.

The Court reviewed the relevant provisions of the CPR, and determined that there had not been valid service of the Claim Form. Paragraph 4.1 of Practice Direction A to Part 6 provides that for service by fax a party must indicate that it or its solicitor is willing to accept service by fax. Under that paragraph one of the "sufficient written indications" for this is a fax number set out on the writing paper of the solicitor acting for the party to be served.

However the Court referred to Part 6.7, which provides that there must be service on the solicitor where the solicitor acting for defendant has notified the claimant in writing that it is instructed to accept service of the claim form on behalf of the defendant. The Court indicated that by itself the fact that the Defendants' solicitors had a fax number on their writing paper was not sufficient to allow service in this case. Service could be by fax if the solicitors had told the Claimants they would accept service by fax. If this were not the case, it could lead to a situation where service on the solicitor by fax was valid even where a client had expressly not authorised the solicitor to accept service. In this regard "acting for" the Defendant was to be given a limited meaning, and was not appropriate for instance where the solicitors were instructed ion other matters. In this regard it is likely that "acting for" will mean "Acting so that he/she can be served: Maggs v Marshall [2006] EWCA 20.

The CPR allows service by an alternative method if there is a good reason for doing so. Specifically the court may order that steps already taken to bring the claim form to the defendant's attention is good service. The court found that there was no such good reason. No reason had been given for leaving service so late, and there was no suggestion that service could not have been effected properly under the rules, or that it would have caused inordinate delay. The fact that no prejudice resulted from the failure to comply with the rules was not a basis for the court to exercise its discretion. Although the objective of the rules was to enable the court to be satisfied that the method of service had (or was reasonably likely to) put the defendant in a position to ascertain the contents of the claim form, they stipulated how this should be done.

The Court should not, it found, indulge a claimant who had devised a method outside the rules for doing so without compelling reason. There was no such reason in this case.

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