UK: Service of proceedings outside the UK: gaps in the rules and dealing with them

Which rules apply to service of a claim form out of the jurisdiction? What steps should you take to find out the current address of a defendant resident outside the UK?

A case from last year, BAIN v Wheeler, addresses the rules for service out of the jurisdiction, the time limits for applying to set aside service of a claim form out of time, and the waiver of the right to challenge late service. The attached article illustrates some potential problems which exist in relation to service of proceedings out of the jurisdiction, and suggests some lessons to help avoid falling into the pitfalls created by the gaps in the rules.

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Which rules apply to service of a claim form out of the jurisdiction? What steps should you take to find out the current address of a defendant resident outside the UK?

The case of BAIN v Wheeler considered the rules for service out of the jurisdiction, time limits for applying to set aside service of a claim form out of time, and waiver of the right to challenge late service.

Mr Wheeler was an independent financial adviser and member of the BAIN network of financial advisers ("BAIN"). The network provided sales support, marketing and compliance services. By the terms of his contract with BAIN, Mr Wheeler undertook to indemnify it against payments which BAIN might be required to make to a third party in consequence of Mr Wheeler’s negligence or failure to comply with regulatory rules.

Between September 1998 and July 2001 BAIN made payments totalling in excess of £90,000 to customers who had lost money after following Mr Wheeler’s pension investment advice. BAIN’s case was that these losses were due to the negligence/non-compliance of Mr Wheeler with regulatory rules.

On 30 December 2003, BAIN issued a claim form against Mr Wheeler. An address in France was given as Mr Wheeler’s last known address, and the claim form was endorsed with a statement that the High Court had jurisdiction to hear the matter. After the claim form was issued, BAIN’s solicitors wrote to Mr Wheeler’s solicitors in London asking whether they had been instructed to accept service on behalf of Mr Wheeler. Mr Wheeler’s solicitors replied that they anticipated getting instructions but could not at that time confirm the position. Time for service within the jurisdiction was running out (the latest day for despatching the claim form for service was 28 April) and BAIN decided to proceed against Mr Wheeler by serving him at his address in France. The claim form and supporting documentation were sent to the French address by registered post on 28 April 2004. The package sent to France was returned to BAIN’s solicitors unopened. Unbeknown to BAIN, Mr Wheeler no longer resided at the French address. On 11 May 2004, Mr Wheeler’s London solicitors confirmed that they had instructions to accept service on behalf of Mr Wheeler. On 12 May, BAIN’s solicitors sent a sealed copy of the claim form to Mr Wheeler’s solicitors. If that was purported service on the solicitors, it was deemed to have been effected on 14 May, and was 14 days outside the 4-month period for service within the jurisdiction. An acknowledgement of service was filed on 25 May. On 10 June, a consent order was sealed providing for an extension of time for service of the defence. On 22 June, Mr Wheeler’s solicitors sent the papers to counsel for advice on the merits of the claim. It was accepted at that time that the solicitors had not spotted that the claim form had not been served in time. At conference, counsel raised the matter of late service. Mr Wheeler subsequently applied to strike out the claim form on the basis that the claim form had been served out of time in the UK.

Mr Wheeler applied to strike out the claim form on the basis that the claim form had been served out of time in England. The following issues arose:

i) Was there good service at Mr Wheeler’s "last known residence" in France?

ii) If not, did Mr Wheeler waive the irregularity?

iii) Did the extension of time in respect of the Defence extend the time for making an application to dispute jurisdiction under CPR 11?

BAIN accepted that the service on Mr Wheeler’s solicitors was late, but contended that there had been good service in France at Mr Wheeler’s last known residence.

HHJ Havelock-Allen QC reviewed the Court of Appeal cases of Godwin v Swindon Borough Council [2002] and Anderton v Clwyd County Council [2002]. He found that these cases decided that CPR 6.7(1) deemed the date of service only if the claim form had in fact been proved to be served. In other words, the deeming provision does not deem the fact of service if the claim form has never been served.

Further, he found that it was a precondition that the method of service used was one specified in the left hand column of the table in CPR 7.6(1).

In this case, the claim form was sent by Royal Mail’s registered post service. However, registered post is not a specified method of service in CPR 7.6(1) even though it is a valid method of service under French law. Therefore CPR 7.6(1) does not apply to service by post out of the jurisdiction. It followed that the Judge held that there was no deemed service and no service in fact in France. However, there was service out of time within the jurisdiction on the Defendant’s solicitors.

BAIN argued that, regardless of the fact that there was no deemed service in France, the defendant waived any irregularities in service within the jurisdiction by the way it conducted itself after receiving the claim form, in particular by filing an acknowledgment of service and agreeing a consent order to extend time for service of the defence.

The defendant argued that at the time of the conduct to which BAIN drew the court’s attention, he had not noticed the date on the claim form, did not know that it was served late and, consequently, did not know that he had any rights to dispute the validity of service.

The judge decided that a waiver can be founded on imputed rather than actual knowledge. In the circumstances, the defendant had conveyed to BAIN an intention to defend the claim and as such had waived his right to dispute the court’s jurisdiction.

BAIN argued that Mr Wheeler should have made an application under CPR 11 for the claim form to be set aside, rather than applying under CPR 3.4 for a strike-out of the action.

The notes at paragraph 6.21.13 of the White Book direct a party who wishes to set aside service on him outside the jurisdiction to CPR 11. The judge found that this note was equally applicable where the party objects to the adequacy of service within the jurisdiction.

The court decided that the appropriate vehicle for disputing service was an application for the claim form to be set aside. The question arose whether Mr Wheeler’s right to make such an application had expired.

HHJ Havelock-Allen QC compared the old RSC Order 12 with CPR Part 11. He pointed out that under the old RSC Order 12, an extension of time for serving a defence had been found to have the effect of extending the time available for making an application to dispute jurisdiction.

The new regime is less generous to defendants. The judge concluded that an application to contest the jurisdiction had to be made within 14 days after filing an acknowledgment of service (see CPR 11(4)(a)). A request for an extension of time for service of a defence cannot be construed as also being a request for an extension of time for making an application to contest the jurisdiction.

In failing to make an application to set aside service within 14 days of his acknowledgment of service, the defendant in this case was treated as having waived his right to challenge the court’s jurisdiction: see CPR 11(5).

The important lessons from the case are:-

iv) If a claim form has been served out of time then an application by the defendant to set aside service under CPR 11 should be made within 14 days of filing the acknowledgment of service and any step in the action may be taken as a waiver of a right to set aside service.

A claimant serving a claim form out of the jurisdiction by post cannot rely on the deeming provisions in CPR 6.7(1). He must instead prove that a claim form has actually been served. This will necessitate taking extra steps to ascertain a defendant’s current residence (rather than last known address), and taking steps to make sure that the claim form is actually served on him.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 10/02/2006.