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Dispute Resolution 6 Service of Proceedings - Claim Forms and Particulars…
Dispute Resolution 6 Service of Proceedings - Claim Forms and Particulars of Claim
Time limits for service of Claim Form
AND
Extending Claim Forms
Within jurisdiction of EW
Within 4 months
of date of issue by Court(Ie May 28th -> by 2359 on Sept 28th)
Outside jurisdiction of EW
Within 6 months
of date of issue by Court
Court grants applications
IN EXCEPTIONAL CIRCUMSTANCES ONLY
to
extend validity of claim form
Application must be made within original validity period of claim form
Why is serving the Claim Form essential?
Defendant has
no obligation to respond
until Claim Form is filed (with Particulars of Claim), otherwise if POC are filed separately they have 14 days from that date
When is a Claim Form deemed served?
Indisputable presumption that,
regardless of service method
, it is
deemed served on the SECOND BUSINESS DAY
after the serve has been done
What counts as a business day?
Any day except Sat, Sun, Bank Holiday, Good Friday, or Christmas day
If the Court serves
Solicitor
must ask
for court to serve
Will serve by
First Class
post
Documents included
Claim Form
Particulars of Claim
If applicable
PERSONAL INJURY docs (remember, from PI PAP)
Medical report
Schedule of past and future loss + expense
Claimant U18/lacks capacity
Certificate of Suitability of Litigation Friend
Response Pack
Contains Acknowledgement of Service
Lets defendant accept or defend case, or contest jurisdiction
Will include a
Certificate of Service and send it to Claimant
Informs claimant if undelivered
If Court enters
default judgment
Court says
good service was carried out
(as long as address for service was correct)
If undelivered and no default judgment
Claimant should ideally try another method of service; or
Claimant should apply for Alternative Service (order)
If the defendant claims service was not valid
-
application process and examples
To make a claim for invalid service, defendant must:
Indicate on acknowledgement of service it was invalid
Make an application within 14 days
of receipt to the Court saying
service was invalid
Examples of invalid service
Only
photocopy
of claim form served; not original (court-sealed) copy
Service delivered by fax or email
without permission
Service was
out of time
(4 months, 14 days for POC)
Service was on
wrong person
- eg
not nominated solicitor
Service made at
wrong address
AND
there have been insufficient attempts to locate the defendant
Remember, claimant must first take
Take reasonable steps
and
make reasonable enquire
s to
ascertain defendant's current address
If the Solicitor/Claimant serves
It is their responsibility to include
ALL
the relevant docs,
including the Response Pack
,
or service will NOT BE DEEMED EFFECTIVE
Claim Form
Particulars of Claim
If applicable
Certificate of Suitability for Litigation Friend
Medical Report + Schedule of past and future loss and expense (remember, Personal Injury PAP)
And,
within 21 days of service
, claimant's solicitor must
FILE A CERTIFICATE OF SERVICE
If Claimant serves
-
Other Methods of Service
If defendant has nominated solicitors
Must be served on solicitors,
unless
Contract provides otherwise
Defendant is a company
Delivering/posting to company's registered office suffices
BUT CAN
ALSO
STILL BE SERVED ON NOMINATED SOLICITORS
If defendant has not nominated solicitors
Serving an individual
Leaving proceedings with person being served
Serving a
company
Leaving proceedings (CF and/or POC) with
person holding senior position in company
Serving a partnership
in the firm's name
Leaving proceedings with
partner
NB - Ideally, claims against partnerships should be against all the partners, and they should all be served individually
, though one can
name a partnership as a defendant (and serve them)
for convenience
Leaving proceedings with person who, at time of service, has
control or management of the partnership business
at its
principal place of business
Other service methods
List and
when service action
is done (different from it counting as deemed service, remember, second business day is for that)
Personal service (giving it to the person)
Leaving the claim form with the individual/partner (they take hold of it)
Post
Posted/left with relevant service provider
Fax
Transmission of fax complete
Document Exchange
Posted/left with relevant service provider
Email
Email/e-transmission sent
Service by fax
can take place IF
Fax number is
within the jurisdiction
AND
Party or party's legal rep indicates
in writing
they will accept fax
OR Party has
given fax number which docs should be transmitted to
,
including on their writing paper
(this counts as express consent) (writing paper is a letterhead; formal doc)
Note: previous communication by fax doesn't count as consent on its own
Service by document exchange
(DX) can take place IF
No explicit indication from party they won't accept DX AND
Party's address for service
includes DX
AND DX number is
on their writing paper
(writing paper is a letterhead; formal doc)
Service by email
can take place if
Express consent given
AND
party has given email address to which to send docs
What does NOT count as explicit consent
Simply including an email address on the firm's paper (contrast with DX and Fax)
Previous communications by email
Service In Exceptional Circumstances and By Alternative Method
Exceptional Circumstances
Defendant in
prison; serve
in prison
Defendant's whereabouts unknown
Take reasonable steps
and
make reasonable enquire
s to
ascertain defendant's current address
Otherwise, serve at last known address
If still unknown
, maybe apply for
service by alternative method
Service by Alternative Method
(Order)
If
good reason can be shown
AND service may not be done
before claim form expires
,
Court can even grant
retrospective order
Ie previous actions count as good service
CPR says Court can
permit service at alternative place
or by
different means
Courts can be quite sympathetic if they determine
defendant quite clearly had notice of proceedings
and failure of good service was from an
understandable/reasonable misunderstanding
Service Outside Jurisdiction
Done when:
Defendant resides abroad; or
Entity located outside of EW jurisdiction
Any
procedural irregularity invalidates service
Permission to serve outside jurisdiction
NOT needed for Scotland or Northern Ireland, or if defendant is resident of UK
But note 6 month rule applies
Steps to serve outside jurisdiction
Claimant must show
EW Court most appropriate forum
for resolution of claim
Claimant makes an
application for permission
to serve claim form on defendant outside jurisdiction
Application granted -
but can be challenged by defendant in 2 ways
If after service - Defendant may make an application to
set aside the service
If before service - Defendant may make
application to set aside
the
permission
/order to serve abroad
Key terms
Claim Form
Response Pack (contains Acknowledgement of Service), served by Court/Solicitor when serving Claim Form