Service of proceedings can be something of a minefield at the best of times. The rules surrounding service are strict and can be complicated. Covid-19 has potentially complicated matters further and businesses are not trading from their usual premises and personal service may not be practicable given the social distancing policies in place.
Below are 7 tips (published by Practical Law Company) to consider when serving proceedings. The Dispute Resolution team at rhw are happy to discuss any queries you may have in this area.
- Will the claim form actually come to the defendant’s attention?
The key question when considering how best to serve the claim form and ensure it is despatched in time is: “Will this method of service be effective?” However, given the objective of service is to actually bring the claim to the defendant’s attention, in light of the Covid-19 backdrop, it is also prudent to pose the follow-up question: “Will service by this method actually bring the claim form to the defendant’s attention?” This second question is not a requirement of the service rules, for very good reason, but it may well save the claimant-client the time and cost of subsequent satellite litigation, to consider now, at the time of effecting service, how a judge subsequently reviewing the matter, in the round and in light of what has been described as a state of national emergency, might approach the matter.
- Agree the service method.
If practicable on the facts of your case, communicate with the prospective defendant or its advisors (if you have not already done so under a relevant pre-action protocol provision or Alternative Dispute Resolution (ADR) provision) and seek to agree the method of service to be used; ideally, in the current climate, email service. Where both parties are represented, the defendant’s lawyer may well be willing to agree to email service (if instructed to do so).
- Use more than one method.
If you have not been able to agree the service method, consider effecting service of the claim form by more than one permitted method. If you do this, ensure that the requirements for each individual method of service are observed. It would also be good practice to record in correspondence with the defendant or their lawyer that you are effecting service by more than one method in view of the difficulties in serving the claim form in the context of the Covid-19 outbreak.
- Serve by email; seek a retrospective alternative service order.
If you have not been able to agree, with the defendant (or the defendant’s lawyer), that the claim form will be served by email, but you have an email address for the defendant (or the defendant’s lawyer), consider effecting service by email, in addition to other methods of service used, whether or not you can, at that stage, satisfy the requirements for email service, and then promptly seek an alternative retrospective service order validating service by email.
- Can we agree a manner of service that falls outside those permitted by the Civil Procedure Rules?
If an agreement is reached at or around the point of service between a person seeking to serve a claim form and the defendant (or a person acting for the defendant), that service will be effected in a given way, outside the ambit of the Civil Procedure Rules, the common sense view is that such an agreement would be valid. However, you would need to be able to demonstrate in that case that the proceedings did actually come to the defendant’s attention.
- Seek confirmation of receipt.
Whichever method of service used, ask the recipient to confirm safe receipt.
- Serve the particulars of claim with the claim form.
If at all possible, serve the particulars of claim with the claim form. If the defendant does not respond, it will prevent you from falling into the “CPR 6.23 lacuna” of not having an address at which to serve particulars of claim and not being able to avail yourself of the default service address provisions.
Need some advice on any of these points or need legal advice on a dispute resolution matter?