In Hills Contractors and Construction Ltd v Struth the court held that sending a photocopy of a sealed claim form to the defendant’s solicitors was not proper service. Service within the jurisdiction under CPR 6.3 must be of an original claim form issued and sealed by court. Comments suggesting the contrary in Weston v Bates were read as referring to service outside the jurisdiction. The only exception is where the claim form is served by fax or email in accordance with Practice Direction 6A (Asia Pacific (HK) Ltd v Hanjin Shipping Co Ltd).
Those on the receiving end of claims within the jurisdiction need to be able to work out whether service is valid or whether it is worth contesting jurisdiction on the ground that service is invalid. If the claimant has left it until the end of the limitation period to issue, taking a point on invalid service could dispose of the claim for good.
The decision has to be made quickly - if jurisdiction is to be contested, the following steps must be taken:
- the acknowledgment of service form N9 with box 3 ticked ("I intend to contest jurisdiction") must be filed within 14 days
- an application must be filed within 14 days after filing the acknowledgment under CPR 11(4)
Both of these steps must be taken to avoid waiving the point. Note also that an application to set aside an order extending service is not an application within CPR 11(4) (Hoddinott v Persimmon Homes (Wessex) Ltd).
It is important not to enter into the merits of the claim, or at least only do so on a clear and express without prejudice basis (Global Multimedia International Ltd v ARA Media Services). If an acknowledgment of service is filed on behalf of a defendant with box 3 unticked, any defects in service are waived (Brooks v AH Brooks & Co). If there is any doubt about the validity of service, it is therefore prudent to tick box 3 so as to buy 14 more days to decide whether or not to issue an application.
Grounds for contesting jurisdiction
So when can you contest jurisdiction within the jurisdiction on the ground that service is defective? This checklist should help.
- Service of a photocopy of the claim form
See the discussion of Hills Contractors and Construction Ltd v Struth above. Service under CPR 6.3 should be of one of the original sealed claim forms provided to the claimant by the court.
- Service by an inappropriate method
For example, by fax or email without permission. Permission can be given expressly or under the deeming provisions in Practice Direction 6A.4.1(2). Where the parties' solicitors have corresponded and the defendant's solicitor's headed notepaper contains a fax number, express authority is still required for faxed service of the claim form on the solicitor (Brown v Innovatorone Plc).
- Service is out of time
Check the claim form has been served within four months of being issued. CPR 7.5 provides that “the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form”. So if the claim form was issued on 1 June 2013, it must be despatched in accordance with the table (eg, by first class post, DX or other service which provides for delivery on the next business day) before midnight on 1 October 2013. Under CPR 6.14, a claim form will be deemed served on the second business day after despatch under CPR 7.5(1), regardless of the method of service used. Note that the deemed service date is irrelevant for the purpose of determining whether the claim form was served in time under CPR 7.5.
Note also that if the claimant serves the claim form right at the end of the four month period under CPR 7.5, the particulars will need to be contained in the claim form if they are not to be out of time. This is because different service rules apply to claim forms and to other documents (see our briefing on Venulum Property Investments Ltd v Space Architecture Ltd).
- Inappropriate extension of time
Where service is out of time but the claimant has obtained an extension of time from the court under CPR 7.6(2), you may wish to contest jurisdiction if there appears to be good reason for the failure to serve the claim form within the four month period (Euro-Asian Oil SA v Abilo (UK) Ltd).
- Service upon the wrong person
This occurs where service has been effected on the defendant where the claimant has received notification to serve on the defendant's solicitor under CPR 6.7 or service on the solicitor where no CPR 6.7 notice has been given. The claimant must be notified by the defendant or the defendant’s solicitor that the latter is authorised to accept service. A reference to the solicitor being instructed to act for the defendant is not sufficient (Brown v Innovator one Plc). (For details of the Commercial Court's practice of permitting service of arbitration claims on solicitors within the jurisdiction, see Cruz City 1 Mauritius Holdings v Unitech Ltd.) Suing the wrong party or getting the name wrong are not errors that go to the court’s jurisdiction but are matters like limitation which should be raised in the defence.
- Service at the wrong address
Service can be challenged on the grounds that the claimant has failed to take reasonable steps to locate the defendant. Where no address is given for service, the defendant’s default address is determined by the table in CPR 6.9. Where the claimant has reason to believe that the defendant no longer resides or carries on business at the default address, has taken reasonable steps to ascertain the defendant's residence or place of business but has been unable to do so, and cannot ascertain an alternative address for service, he may serve on the defendant's usual or last known address in accordance with the CPR 6.9 table.
A claimant may apply for alternative service under CPR 6.15 where they are having difficulty (Hallam Estates Ltd v Baker and Brooks v AH Brooks & Co). The onus on the claimant in these circumstances became heavier when CPR 6 was amended in October 2008 and challenge on this ground may therefore be worth considering if there is reason to believe that the claimant has failed to make sufficient enquiries about the defendant’s address.