The revised part 6 regime for service of documents

In the conjoined appeals of Collier v Williams; Marshall & Rankine v Maggs; Leeson v Marsden; Glass v Surrendran [2006] EWCA Civ 20, the Court of Appeal considered four cases that gave rise to a number of issues relating to the service of the claim form. In his judgment, Dyson LJ noted that it had become clear that Part 6 (the rules relating to service) and Rule 7.6 (the rule relating to the extending of time for service of the claim form) have not fulfilled the Woolf Reform aims of being simple and straightforward and avoiding frequent satellite litigation. Therefore, the Civil Procedure Rule Committee conducted a review of the rules relating to service and, following consultation in 2007, the CPR have been revised to create a simpler regime for service of documents. Many of the rules do remain the same, but there are a number of important differences.

  1.  “Service” will continue to have a technical meaning. Receipt or not of a document does not dictate whether a person has or has not been served. This is to be determined by application of the rules.
  1.  The new Part 6 is divided into five sections:

(I) Scope of the part and interpretation;

(II) Service of the claim form in the jurisdiction;

(III) Service of documents other than the claim form in the United Kingdom;

(IV) Service of the claim form and other documents out of the jurisdiction;

(V) Service of documents from foreign courts or tribunals.

  1.  Sections IV and V essentially simplify and reformat the old sections III and IV respectively. The most important change is the separation into two separate regimes of the rules for service within the jurisdiction of claim forms (Section II) and the rules for service of other documents in proceedings (Section III). As a result, there is a degree of duplication with a number of provisions in Section II being repeated, with necessary modifications (or incorporated by reference), in Section III.
     
     
  2. There are no transitional provisions – the new Part 6 applies to all claim forms and documents served on and after 1 October 2008.
  1.  A company can be served with a document by any method permitted under Part 6 or by any of the methods set out in the Companies Act 1985 or the Companies Act 2006.
  1.  A new development is that a limited liability partnership can be served with a document by any method permitted under Part 6 or by any of the methods set out in s725 of the Companies Act 1985.
  1. As before, ordinarily service will be by the court, with exceptions (as per Rules 6.4 and 6.21). Now, where the court has served the claim form by post and it has been returned to the court, or the court bailiff is to serve the defendant but has been unable to do so, and the court has sent a notification of such, it will not try to serve the claim form again (Rule 6.4(4)). Therefore be aware that the court will now make only one attempt to serve the claim form.

Service of the claim form within time and deemed service 

  1. Previously a claim form had to be served within four months after the date on which it was issued by the court, and the deemed day of that service varied according to the method of service adopted by the serving party. If the application of the rules meant that a claim form was deemed served after the four month period, then service was out of time, even if the claim form had in fact been received within the four month period.
  1. Now, significantly, Rule 7.5 is amended so that a claimant must simply complete the step required for the chosen method of service “before midnight on the calendar day four months after the issue of the claim form”. The relevant step is the physical action required to effect one of the accepted methods of service. The table in Rule 7.5 describes the required steps for each method of service, for example, the step required for service to be effected by fax is the completing of the transmission of the fax. Note that this period is a calendar period, so the step must be taken before the end of the four months even if that particular day is not a business day.
  1. Therefore, the claimant does not need to serve the claim form within four months after the date when it was issued, as long as he has in some way dispatched it for service within that period.
  1. New Rule 6.14 and Rule 7.5(1), in combination, change and simplify the position regarding the fixing of the deemed day for service of the claim form - it will always be “the second business day after the completion of the relevant step under Rule 7.5(1)”.
  1.  Therefore, if the claim form is dispatched for service before or on the day four months after the issue of the claim form and the deemed date of service, being the second business day thereafter, is actually outside the four month period, it does not matter and service will be in time.
  1. As these new rules are not subject to transitional provisions, it is important to be mindful of any impending time periods expiring for service of your claim forms and whether the old version of the rules will apply or the new. In short, if the time limit fixed by Rule 7.5 will run out on Tuesday 30th September or before, the old version of the rules applies and will have been complied with if service was effected on or before that date. If however the time limit fixed by Rule 7.5 runs out on Wednesday 1 October or after, the new version of the rule applies and will have been complied with if the claim form was dispatched for service by or on the date the time limit expires.
  1. Of course it is still advisable to keep on the right side of the court and to serve promptly after having a claim form issued, where possible. The claimant still has fourteen days in which to serve the particulars of claim and this can be extended within the four month period by application to the court or can even be extended by agreement with the other side (Rule 2.11). However, where particulars of claim are not contained in or served with the claim form they do not constitute part of the claim form, so the deemed day of service of separate particulars of claim is calculated in accordance with Rule 6.26 in Section III for service of other documents and not Rule 6.14 in Section II.
  1.  Note that amended Rule 7.5 states that it is the claimant who must complete the relevant service step and there is no reference in the rule to the court being under such an obligation where it is to serve the claim form. Generally where the court serves a claim form the method is by first class post and it must be assumed that the new Rule 7.5 should also apply where service is by the court.
  1. To reiterate, these new provisions regarding deemed service only apply to service of the claim form and the previous provisions on deemed service still apply to service of other documents within the jurisdiction.

Other changes and points to note

  1. According to new Rule 6.2(c), ““claim” includes petition and any application made before action or to commence proceedings and “claim form”, “claimant” and “defendant” are to be construed accordingly”. So it appears that “claim form” includes an application notice for a pre-action remedy to be served before service of the claim form.
  1. Old Rule 6.5(6), now Rule 6.9, regarding service of the claim form where the defendant does not give an address for service, contains new provisions incorporating judicial decisions on situations where the claimant has “reason to believe” that the defendant no longer resides at their “last known address”. These provisions expressly state that the claimant must take “reasonable steps” to ascertain the defendant’s current address and, if successful, serve at that address. If a claimant is unable to ascertain the current address he must consider whether there is an alternative place where or an alternative method by which service may be effected and, if there is, make the appropriate application under new Rule 6.15. If the claimant is still unable to determine the current address or any alternative place or method, he may then serve at the last known address. “Reasonable steps” is not defined.
  1. Old Rule 6.8 governing service by an alternative method is now found at Rule 6.15 (in relation to the claim form) and Rule 6.27 (in relation to any other document) and, as previously mentioned, also permits service at an alternative place. Wholly new Rule 6.15(2) now allows the court to sanction as good service “steps already taken” by the claimant to bring the claim form to the attention of the defendant by an alternative method or at an alternative place. Note that, as Rule 6.27 incorporates Rule 6.15 by reference, this retrospective power to sanction previous mis-service also applies to the particulars of claim.
  1. Old Rules 6.10 and 6.14 concerning the certificate of service have become Rule 6.17. The period for filing a certificate of service is now extended (from within 7 days of service of the claim form) to within 21 days of service of the particulars of claim. However if all the defendants have filed acknowledgments of service within that time the need to file such a certificate is waived. There is therefore no need in Rule 7.4(3) regarding particulars of claim to repeat the reference to filing a certificate of service, which has thus been omitted. Note that judgment in default may not be obtained unless a certificate of service has been filed.
  1. The method for service of a claim form or other documents in proceedings includes service by fax or other electronic method, where the party to be served has indicated his willingness to accept service by such a method. Previous discrepancies between service by fax and service by other means of electronic communication (which includes email) as to the circumstances in which such willingness may be implied have been brought into line (see paragraph 4.1(2) of Practice Direction B supplementing Part 6). Now, as well as a fax number set out on the writing paper of the solicitor acting for the party to be served, an email address set out on such writing paper will be taken as sufficient written indication of willingness to accept service by that method.
  1.  For service of documents other than the claim form, parties are now allowed give an address anywhere in the United Kingdom, not just England and Wales and its territorial waters (Rule 6.23). Generally, relevant references throughout the CPR to “jurisdiction” are substituted by “United Kingdom” to reflect that service in Scotland and Northern Ireland can be effected by the methods provided for in the CPR, including personal service and service by post.
  1.  Previously, where a party’s solicitor was to be served, there was no stipulation at all where this address had to be, so parties could give addresses of solicitors located abroad. Now however, with regards service of the claim form on the defendant’s solicitor, the address for the solicitor must be “within the jurisdiction” (Rule 6.7). And service of other documents on a party’s solicitor must now be within the UK (Rule 6.23(2)).
  1. Old Rule 6.19(3) requires a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction without the court’s permission to be endorsed on the claim form. The amended provision, now found in Rule 6.34, requires the claimant to file a separate notice containing the statement of entitlement with the claim form, in the form of new practice form N510 (paragraph 2.1 of Practice Direction B supplementing Part 6). Where a claim form should be accompanied by this form but is not, the claim form may only be served once the N150 form is filed with the court or if the court gives permission (rule 6.34(2)).
  1.  Numerous consequential amendments are made to other rules, most of them quite small, such as updating references to provisions as re-numbered in the new Part 6.

New court forms

  1. New practice form N510 for Service out of the jurisdiction without the court’s permission must be used from 1 October 2008.