Civil litigation brief

Last month, in relation to CPR Part 6 and service of the claim form, we looked at changes to the rules governing methods of delivery and number of attempts to serve. The amendments, which came into force on 1 October 2007, also deal with service by an alternative method, power to dispense with service, time extensions and the correct address for service. To a large extent, the rules confirm old principles, but they have also introduced some significant changes, raising new issues that need to be examined.

Service by an alternative method

Under the old rules, CPR 6.8 allowed the court to order service by an alternative method. This has been replaced by a new CPR 6.15, with some important changes:

On an application under this rule the court may deem steps already taken to bring the claim form to the attention of the defendant by an alternative method of service to be good service, thereby retrospectively approving the steps the claimant has already taken so that the claimant need not repeat these or take alternative steps.

Power to dispense with service of the claim form

CPR 6.16 provides that the court may dispense with service of a claim form in 'exceptional circumstances'. It also states that an order to dispense with service may be made at any time, must be supported by evidence, and may be made without notice.

This compares with the previous rule which stated that 'the court may dispense with service of a document', and indeed contrasts with the rule in the new part 6.28 which states that 'the court may dispense with service of any document which is to be served in the proceedings'. There is no requirement of 'exceptional circumstances' in relation to any document which is not the claim form.

Notice and certificate of service relating to the claim form

Where the court serves the claim form, the court will send to the claimant a notice which will include the date on which the claim form is deemed served under rule 6.14. The claim form will be deemed to be served 'unless the address for the defendant. . . is not the relevant address for the purpose of the rules.'

Where the claimant serves the claim form, the claimant must file a certificate of service within 21 days of the service of the particulars of claim, unless all the defendants to the action have filed acknowledgements of service within that time. The claimant may not obtain judgment in default until a certificate of service has been filed. The certificate of service must state the category of address at which the claimant believes the claim form has been served and details of the date and method of service.

Changes to rule 7

There are changes to r.7.5. The new rule requires the claimant to take the relevant step in relation to service before midnight on the calendar day four months after the date of the issue of the claim form. As noted in the previous article, this is a significant change. The relevant date for the expiry of the four month period is the date the document is sent, and not received or deemed to be received.

There is a minor change to r.7.6, which allows the court to extend time after the four month period. Whereas previously the rule stated that the court could consider this only if 'the court has been unable to serve the claim form' the new rule states that the time extension can only be applied if 'the court has failed to serve the claim form'. This is, presumably, to put an end to the somewhat esoteric arguments as to what was meant by 'unable', considered in Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656.

Issues that remain

The new rules solve some of the problems relating to service, in particular the vast anomalies in relation to the deemed date of service. However some issues remain in particular as to the correct address for service and the precise nature of the claimant's duty to enquire as to the correct address. Claimants in particular must take care in relation to the anomalies to the date of service and the correct address.

When must service take place on the defendant's solicitor?

The new rules preserve the old principles in this respect. The first thing that the claimant must review is whether, during the course of the action, a solicitor's address has been given for the address of service or a solicitor has written to state that they are authorised to accept service of proceedings in this action. A failure to review the file and consider this issue could be fatal. In summary:

 If a party gives an address for service within the jurisdiction then service must take place at that address.

 If the defendant gives the address for service as the business address of the defendant's solicitor, then service must take place on the solicitor (Nanglegan v Royal Free Hampstead NHS Trust [2002] 1 WLR 1043, CA '“ subject to the exception in the case of a limited company and limited partnership discussed below). There is a slight change to the rules here in that the solicitor's address must be an address within the jurisdiction.

 If the solicitor has written stating that they are authorised to accept proceedings then service must take place on that solicitor (Collier v Williams [2006] EWCA Civ 20 '“ again subject to the exception in relation to a limited company).

 However the fact that a solicitor is acting for the party and has written on the defendant's behalf prior to issue does not mean that authority is inferred. Service on the solicitor without express confirmation of authorisation to accept service is not good service (Smith v Probyn and PGA European Tower Ltd [2000] 2 All ER 250; Collier v Williams op cit).

As noted above there is an exception, however, in the case of limited companies. Here service can take place under the Companies Act or the Civil Procedure Rules. As a result service can take place at the registered office of the company regardless of whether or not a solicitor has been nominated (Murphy v Staples (part of the Bridgefield group of cases) [2003] EWCA Civ 656).

Service on the defendant: the address for service

Having established that service need not be on the defendant's solicitor the claimant then has to consider where the proceedings can be served.

A limited company can always be served at its registered office under s.725 of the Companies Act 1985, see Murphy v Stables above. However there are a number of practical problems that arise in relation to the address for service.

Where the defendant has moved and the claimant knows of no other address

An example of this can be found in the case of Smith v Hughes & the MIB. This was one of the tranche of cases considered by the Court of Appeal and reported as Cranfield v Bridgegrove [2003] EWCA Civ 656. Prior to service of the claim form the claimant's solicitors had been told that the defendant had moved and they could not find a forwarding address. The claimant served on the address at which the defendant last lived, arguing that it was the 'last known residence'.

The Court of Appeal held that service at an address at which the claimant knew the defendant no longer lived could be served at the last known residence. The significant factor here was that it was evidence from the MIB that demonstrated that the address of service was the last known address. However the Court of Appeal left open the question of how far the claimant must make enquiries prior to service.

Where the defendant has never lived there

In the case of Marshall and Rankine v Maggs [2006] EWCA Civ 20 the Court of Appeal held that:

 The phrase 'last known residence' could not be extended to an address at which the individual to be served has never resided.

 When considering an address at which the individual to be served did actually live at some time the court is not concerned with 'belief' but with knowledge:

'The draftsman of the rules deliberately chose the word 'known'. In our view, knowledge, in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, that is knowledge which he could have acquired exercising reasonable diligence.'

It is clear that even under the old rules it was incumbent upon a claimant to make reasonable enquiries as to the defendant's address.

It is now expressly stated in the rules that 'where a claimant has reason to believe that the address of the defendant . . . 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').'

It is a virtual certainty that there will be litigation as to what is meant by the vague phrase 'has reason to believe'. It is an ambiguous phrase and relates to subjective knowledge rather than actual knowledge. A sceptic may believe that it is designed to encourage litigation on this point.

Service at a place of business

A defendant, sued as the proprietor of a business or being sued in the name of a firm can be served at the place of business or last known place of business. The meaning of 'place of business' was considered by the Court of Appeal in O'Hara v McDougall [2005] EWCA Civ 1623 (CA 22 November 2005).

The Court of Appeal categorically rejected an argument that proper service had taken place because the fact that a property was rented out made it a 'place of business'. Even the fact that the rent was collected at the door of the property did not make it a place of business.

Can a 'non-business' defendant be served at a place of business?

The circuit judge had decided the O'Hara case on an additional ground, which the Court of Appeal did not have to consider. The circuit judge held that service was not valid because the rules only permitted service at a place of business when the defendant was being sued as a 'proprietor of a business'. The claimants' claim was in nuisance on the grounds that the defendant was the owner of a property. The defendant was not being sued as the proprietor of a business. As a result the circuit judge held that proper service could not have taken place in any event.

This issue was not considered by the Court of Appeal. However it is a factor that claimants and defendants must bear in mind when considering whether or not proper service has taken place in any action.