Judge considers service of claim form issues where solicitors did not confirm authority to accept service

The claimants issued a claim form against two defendants in May 2016. They sent a copy of the claim form to the defendants' solicitors two months later, in July 2016 and then negotiated a series of extensions of time for service of the claim form. Although they then sought confirmation from the defendants' solicitors that they were authorised to accept service, no such confirmation was received. After they served the claim form on the defendants' solicitors, the defendants asserted that the claim form had not been validly served. The claimants therefore applied to the court for an order that the claim form had been validly served or for an order that service by an alternative method or at an alternative place was retrospectively permitted (under CPR r6.15). The judge held as follows:

(1) When the claim form was sent for information purposes only in July 2016, that was not service of the claim form. The claimant had failed to ask the defendants of their solicitors at that point whether the solicitors were authorised to accept service of the claim form. That was not merely a "technical point": a solicitor without authority who accepts service could be exposed to regulatory action or a claim. (However, had the only point been that a photocopy of the claim form, and no response pack, had been sent, the judge would have circumvented that defect by court order).

(2) As the defendants' solicitors had not been asked at the time to confirm if they would accept service, they were not obliged to object to what happened in July 2016. Although litigants should generally take reasonable steps to clear up genuine misunderstandings which have arisen between the parties that did not "extend to requiring a solicitor acting for one party to inform his or her opponent of an apparent error made by that opponent in the absence of instructions from his or her client to do so, when to do so might be contrary to the substantive interests of that solicitor's client".

(3) Although an order pursuant to CPR r6.15 can only generally be made if the claim form has come to the attention of the defendant, that factor alone is not enough to justify an order. A good reason for the order must also be demonstrated. The claimant solicitors' error here had been to leave service until very late in the period of extended validity of the claim form: they ought to have kept a record of what had been served and when and/or checked their files: "Aside from that, it is entirely unclear why [the claimants]' solicitor then attempted to serve what she considered had to be served on the defendants' solicitors when she had asked for but had not received confirmation that service could be on the defendants' solicitors".

(4) The claimants could have averted these issues by simply serving on the defendants, rather than their solicitors.

Accordingly, there had been no valid service of the claim form and an order under CPR r6.15 was refused.

COMMENT: This is an unsurprising decision, since it is well-established that a defendant's solicitor may be served only if (1) the defendant has given in writing the business address of a solicitor as an address at which he may be served (even if the solicitor doesn't know or hasn't really been instructed) or (2) a solicitor acting for the defendant has notified the claimant in writing that he has been instructed to accept service on behalf of the defendant (even if he isn't really instructed – although that would of course expose him to a claim from his client). Nor is it sufficient that the solicitor acts for the defendant generally– he must also be authorised specifically to accept service. Here, no confirmation was received from either the defendants or their solicitors. Furthermore, it was held in Planetree Nominees v Howard Kennedy LLP (2016) that the solicitor has no duty to confirm whether he has been instructed (a point which was re-affirmed here).

The point about the photocopied claim form is noteworthy though. In Hills Contractors v Struth it was held that for service within the jurisdiction, a photocopy of the claim form will not suffice, and only the original sealed claim form must be served. However, in United Utilities v Hart (a county court decision in 2015), the judge exercised his power under CPR r3.10 to cure that defect (service having been validly made in all other respects). This case too confirms that if service of a photocopied claim form is the only defect, a court may allow that defect to be cured.