A solicitor's fax number on its headed notepaper of itself should not be taken as confirmation that service of a claim form can take place by fax.

In Brown & Ors v Innovatorone PLC and 7 others, the seventh and eighth defendants (the defendants) sought to have the purported service of claim forms on their respective solicitors set aside as being invalid and ineffective. The claimants' solicitors sent copies of the claim forms to the defendants saying the claim forms would be served later. The defendants' solicitors confirmed to the claimants' solicitors that they were acting for the respective defendants. Their writing paper contained their fax numbers. The claimants' solicitor subsequently faxed amended claim forms to the defendants' solicitors by way of service towards the end of the fourth month period for service. Those claim forms were not sent on to the defendants within that period. The claimants' solicitors had not asked the defendants' solicitors if they were instructed to accept service and neither had the defendants nor their solicitors advised the claimants' solicitors that they were so instructed.

The defendants contended that a claim form could not be validly served on a defendant's solicitor unless the defendant or its solicitor had notified the claimant in writing that the solicitor had been instructed to accept service of it. Correspondence between the parties' solicitors alone did not of itself amount to such confirmation.

The court confirmed that a fax number on notepaper did not on its own mean that the defendants' solicitors could be validly served. However, once the claimant had been notified that the defendants' solicitors were instructed to accept service, the inclusion of the fax number on the notepaper meant that service could then take place by fax in accordance with the civil procedure rules (CPR) part 6. There had been no such notification here and the claim forms had not been validly or effectively served. Further, there was no good reason for the court to exercise its power under CPR 6.15 to permit service by an alternative method. The fact that the defendants had suffered no prejudice was not sufficient reason to make such an order. The claimants could have served the claim form in accordance with the rules and the court would show no indulgence to a party who devised its own methods of service outside of those rules.

Things to consider  

Unless a claimant has been made aware in writing by the defendant or its solicitor that the solicitor is authorised to accept service of the claim form, a claimant would be ill advised to attempt to serve on the solicitor. This is particularly so where the period of validity for service is about to expire and there are underlying limitation issues.