Civil litigation brief

The rules aS to service of documents in civil proceedings are changing. Part 6 of the Civil Procedure Rules, dealing with service, is substituted in total by a new Part 6, which comes into force on 1 October 2008.

The Civil Procedure (Amendment) Rules 2008 '“ the 47th update to the Civil Procedure Rules '“ deletes the previous Part 6 and introduces a totally new rule. Many of the rules remain the same; however there also are some important differences.

Certain phrases defined

The new rule gives a definition of certain key phrases:

 'bank holiday' means a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where service is to take place;

 'business day' means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

 'claim' includes petition and any application made before action or to commence proceedings and 'claim form', 'claimant' and 'defendant' are to be construed accordingly; and

 'solicitor' includes other authorised litigators within the meaning of the Courts and Legal Services Act 1990.

Methods of service

There are important changes in the methods of service. A claim form can be served by:

 Personal service;

 First class post, document exchange or other service which provides for delivery on the next business day (in accordance with Practice Direction A which supplements the new rule);

 Leaving it at a place specified in rules 6.7, 6.8, 6.9 or 6.10; and

 Fax or other means of electronic communication in accordance with Practice Direction A.

A company can be served by any method permitted in Part 6 or by any of the methods set out in the Companies Act 1985 or the Companies Act 2006.

An important new development is that a limited liability partnership can be served either in accordance with this part or by any of the methods of service set out in s.725 of the Companies Act 1985.

Service by the court

The new rules repeat the old rules in that normally service will be by the court, unless the rules or practice direction provides otherwise, the court orders otherwise or the party on whose behalf the document is to be served wishes to serve it himself. The claimant must file a copy for each defendant to be served and the method of service is left for the court to decide.

However one crucial point here is that the new rule provides that where the court has sent a notification of outcome of postal service under the new rule 6.18 (a notification that the claim form has been returned), or a notification of non-service by the bailiff in accordance with the new rule 6.19, the court will not try to serve the claim form again.

This is an important development.

A claimant cannot assume that the court will make multiple attempts to serve the claim form; it will try only once and not try again.

Service on a solicitor

The old rule is repeated with some important changes:

 Where the defendant has given in writing the business address within the jurisdiction of a solicitor as address for service.

 Where a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction. Then service must take place at the business address of that solicitor.

There are two important developments here:

 The address given for the solicitor must now be 'within the jurisdiction' (some defendants were giving the addresses of solicitors practising abroad). This rule is expressly stated to be subject to the new rule 6.5(1); and

 It appears that the principle that a party can still serve on a company under a method allowed by the Companies Acts is preserved. So service can take place at the registered office even if a solicitor has stated that they will accept service on behalf of a company, indeed this principle appears to have been extended to limited partnerships.

Where the defendant has given an address for service

The defendant may be served with the claim form at an address within the jurisdiction which he has given for the purpose of being served with the proceedings, however in any claim by a tenant against a landlord the claim form can be served at an address given by the landlord under s.48 of the Landlord and Tenant Act 1987.

Where the defendant may have moved

There is a table, similar, to the table in the old rule which sets out the place of service if no address has been given or solicitor nominated. The important element here is the introduction of a new CPR 6.9(3), which states that:

'Where a claimant has reason to believe that the address of the defendant referred to entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business the claimant must take reasonable steps to ascertain the address of the defendant's current residence or place of business ('current address')'.

This relates to service on an individual, an individual being sued in the name of a business or an individual being sued in the business name of a partnership.

The rules go on to state that where, having taken the reasonable steps required by para.3 the claimant has ascertained the defendant's correct address then the claim form must be served at that address.

If the claimant is unable to ascertain the defendant's current address the claimant must consider whether there is an alternative place or alternative method by which service may be effected. The claimant must then make an application, under the new rule 6.15, which allows the court to order service by an alternative method or at an alternative place.

If the claimant, having taken reasonable steps, cannot ascertain the defendant's current residence or place of business or an alternative place or method of service, then the claimant may serve at the defendant's last known address or place of business.

Problems for claimants

In some ways this rule codifies and confirms pre-existing case law on the subject. However there is plenty of scope for argument here.

There is no indication of what, or when, a claimant should have 'reason to believe' that the defendant's address has changed. It should be noted that the claimant has to have reasons to 'believe'. The test is not 'reason to know' or reason to 'suspect'. For instance is the passage of time sufficient to put the claimant on knowledge that the defendant may have moved? If so, what is the period of time?

There is no definition of 'reasonable steps'.

It will still be a brave claimant who serves on an address knowing that the defendant is not there.

Deemed service

The provision for the date of deemed service led to a great deal of controversy in the previous rules. The new rule is quite difference.

A new rule 6.14 states:

'A claim form served in accordance with this part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)'.

This replaces the somewhat tortuous rules and table in the old rule 6.7. The new rule 7.5(1) states:

'Where the claim form is served within the jurisdiction the claimant must complete the step required by the following table in relation to the particular method of service chosen before midnight on the calendar day four months after the date of issue of the claim form.' (See table 1 above).

Note that this replaced the previous principles whereby a document posted could be 'deemed' to arrive before a fax. The rule is now that the claim form is deemed to arrive the second business day after the relevant step is taken.

Further, the interaction between the deemed date of service and the new rule 7.5(1) is not clear. On reading rule 7.5(1) it requires the claimant to take the step within four months; it does not require the claimant to serve the claim form within that period. This new wording has to be contrasted with the old CPR rule 7.5(2), which states that 'the general rule is that a claim form must be served within four months after the date of service.

So for the purpose of service of the claim form the deemed date may not be of importance. What is crucial is that the claimant has taken the step within the four-month period. However it is important to remember that this is a calendar period and that step must be taken before the end of the four months even if that particular date is not a business day.