Are you being served?
Robert Hill looks at the new regime for service of documents as outlined in the changes to the Civil Procedure (Amendment) Rules 2008
The Civil Procedure (Amendment) Rules 2008 (S.I 2008 no 2178) come into force on 1 October. The most important change is to repeal the existing part 6, dealing with service, and replace it with a new version. This article deals solely with the new part 6 and consequential amendments relating to service. A later article will summarise the other changes.
Service is, of course, a crucial stage in any litigation. There is no definition of ‘service’ in part 6. However, the glossary to the Civil Procedure Rules (CPR) refers to ‘steps required by rules of court to bring documents used in court proceedings to a person’s attention’.‘Service’ has, and will continue to have, a technical meaning. The fact that a person has (or has not) received a document does not necessarily mean that that person has (or has not) been served. The new part 6 is simpler than the current version, but whether a person has (or has not) been served and, importantly, when, is to be determined by applying the rules.
The new part 6 is divided into five sections: I – Scope of this part and interpretation;II – Service of the claim form in the jurisdiction; III – Service of documents other than the claim form in the UK; IV – Service of the claim form and other documents out of the jurisdiction;V – Service of documents from foreign courts or tribunals.
Sections IV and V are essentially the same as the existing sections III and V respectively, though there is some simplification and restructuring.
Note that part II deals solely with service of the claim form. Nearly all reported cases on service concern service of the claim form, so it is a welcome development to have a separate section dealing with this alone.
Take note, there are no transitional provisions. The new part 6 applies to all claim forms and documents served on and after 1 October 2008.
Under the old part 6, a defendant had to be served during the period of the claim form’s validity, that is to say within four months of issue. If the application of the rules meant that a claim form was deemed served after the four-month period had expired, then service was out of time and bad (see Godwin v Swindon BC  EWCA Civ 1478,  4 All ER 641), even if the claim form had in fact been received within the four-month period.
New rule 6.14 says: ‘A claim form served in accordance with this part is deemed to be served on the second business day after the completion of the relevant step under rule 7.5(l)’.
Note immediately that service is always effected on a business day and that it is always the second business day after completion of the relevant step. This is a simplification and the new rule is easy to apply.
So a claimant need no longer actually serve within the four-month period but must ‘complete the step required… before midnight on the calendar day four months after the date of issue of the claim form’. New rule 7.5 is also a simplification and is an important change. Service will be in time if the ‘relevant step’ is taken during the four-month validity and, if it is, service is effected on the second business day thereafter: it does not matter if that day is outside the four-month period.
The table below describes the required steps for each method of service for new rule 7.5.New rule 6.5 deals with personal service. By rule 6.5(3) a claim form is served personally on:
- an individual, by leaving it with that individual;
- a company or other corporation, by leaving it with a person holding a senior position within the company or corporation;
- a partnership (where partners are being sued in the name of their firm), with a partner or a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
- For example: A claim form expires on Friday 31 October 2008. On that day it is placed in a post box at 11.30pm, addressed to the defendant at his usual address. The defendant is deemed served on Tuesday 4 November 2008 (the second business day after completion of the relevant step – see rules 6.14 and 7.5);
- A claim form expires on Saturday 1 November 2008 and is handed to the defendant personally on that day. Again, the defendant is deemed served on Tuesday 4 November 2008 (see rules 6.14 and 7.5).
One theme that emerges through the decided cases is that courts have scant sympathy for a claimant or solicitor who has issued and then waited until the end of the claim form’s period of validity to serve, but then encountered difficulties. Although the new rules do, to some extent, make it easier to avoid difficulties, no doubt the same theme will persist.
So why wait? Having issued, it is invariably better to serve promptly. This is so even where the claim form has been issued to pre-empt limitation problems and there are no particulars of claim yet drafted.
The claim form can still be served with an explanation and usually it will not even be necessary to obtain a court order extending time for service of the particulars of claim, for this can be agreed with the other side pursuant to rule 2.ll.If, for good reason, it is necessary to extend the life of the claim form, see new rule 7.6. The general rule is that the extension must be sought ‘within the period specified by rule 7.5’. Only in exceptional cases can the life of the claim form be extended after the end of the period specified by rule 7.5 (see rule 7.6(3)).
In Smith v Hughes (reported under Cranfield v Bridgegrove Ltd  EWCA Civ 656;  3 All ER 129) the Court of Appeal held that the words ‘last known address’ were plain and unqualified. It did not matter that the defendant was no longer there.
By new rule 6.9(l), service on an individual is effected at his ‘usual or last known address’ (save, of course, where rule 6.5 [personal service], rule 6.7 [service on a solicitor] and rule 6.8 [defendant gives address at which the defendant may be served] apply).
However, there are now new rules which apply where the claimant has reason to believe that the address is an address at which the defendant no longer resides. The claimant must take reasonable steps to ascertain the defendant’s current address. If the claimant is unable to discover a current address, he must then consider whether service can be effected at an alternative place (such as place of work) or by an alternative method (for instance, c/o a relative) and, if so, make an application. However, if the claimant still cannot ascertain the current address or any alternative place or method, he is then still entitled to serve at the ‘last known address’ (see rule 6.9).
Service in Scotland and Northern Ireland can be effected by any method provided for in the CPR, including personal service and service by post. Extra time is still allowed for defendants in Scotland and Northern Ireland to respond to the claim form. Thus it will no longer be necessary to be concerned with, for example, methods of service required by Scottish law.
A party will no longer have to provide an address for service in England and Wales. Parties are allowed to give an address for service anywhere in the UK.
New rule 6.15 enables the court, for good reason, to make an order permitting service by an alternative method or at an alternative place. What is new is the courts’ power to order this retrospectively, for instance to make an order deeming that the claim form was served on a particular date.
Take, for example, a personal injury claim where C’s solicitor has been corresponding with D’s insurer. In many similar cases in the past this insurer has nominated its in-house solicitor to accept service. However, in this case, the insurer has not done so but the claim form et cetera has been sent there. Correspondence continues. After the four-month period of validity has expired, the insurer takes the point that purported service is bad and that service has not been effected.
By new rule 6.15(2), ‘the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service’. By rule 6.15(4)(b) the order must specify the date on which the claim form is deemed served. It is submitted that, in this example, the court would exercise its new power.
By new rule 6.8(6), in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 1987.
By new rule 6.17(2), where the claimant serves the claim form, the period for filing a certificate of service is extended to 21 days, but no certificate need be filed if all defendants have filed acknowledgments of service within that time (which, of course, they should have).
There are three new practice directions to supplement part 6. These give useful guidance and do not duplicate rules unnecessarily. PD6 is ‘Practice Direction – service within the UK’. PD6B is ‘service on Members of the Regular Forces’ and PD6C is ‘service out of the UK’.
Given the lack of transitional provisions, all practitioners will need to be familiar with the new part 6, its supplementing practice directions and the consequential amendments, before they all come into force on 1 October.
District Judge Hill sits at Scarborough County Court. He is a member of the Civil Procedure Rule Committee and of the Senior Editorial Board of the White Book.
|Method of service||Step required|
|First-class post, document exchange or other service which provides for delivery on the next business day|| |
Posting, leaving with, delivering to or collection by the relevant service provider
|Delivery of the document to or leaving it at the relevant place||Delivering to or leaving the document at the relevant place|
|Personal service under rule 6.5||Completing the relevant step required by rule 6.5(3)|
|Fax||Completing transmission of the fax|
|Other electronic method|| |
Sending email or other electronic transmission