A recent case in the Technology & Construction Court highlights the importance of knowing when, where and how to serve in order to ensure effective service of a claim form.
Background
In Tiger Falkirk v Paragon [2021] EWHC 2063 (TCC), the defendant’s solicitors revised the standard footer in their letters to indicate that service was to be by email only. After two agreed extensions of the period for service, the claimant’s solicitors sent the claim form by email to the defendant’s solicitors on the evening of the final day. The defendant’s solicitors applied for a declaration that service was ineffective, as they were not authorised to accept service.
Fraser J considered CPR Part 6.7(1)(b), which requires the solicitor acting for the defendant to have "notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form". Fraser J noted that the claimant had never asked whether the defendant’s solicitor had that authority, the defendant’s solicitor had never claimed to have that authority, and there was nothing in the documentation that implied the contrary. He granted the application.
The claimant applied under CPR Part 6.15 and 6.16 for the court to deem service to be effective and/or dispense with the need for service. Fraser J considered:
- Whether the defendant knew of the claim form, accepting that it did.
- Whether the claimant had taken reasonable steps to serve, noting that the attempt at service was made on the final day, that it was a further three weeks before service was attempted at the registered address, and that clarification on the point had never been sought.
- What prejudice the defendant would face if relief were granted, noting that at present the claim was statute-barred, and so the prejudice would be substantial.
The claimant’s applications were dismissed.
Comment
Had initial service been attempted in good time and/or the second attempt at service been made earlier, those factors would have been taken into account. The prudent course is to establish whether the other side are nominated to accept service at the outset. With electronic means of communication ever more prevalent, a serving party should pay careful attention to CPR PD 6A 4.1 and 4.2, which cover issues including identification of an email address and whether there are any limitations on the ability to accept service by email.
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