Planetree Nominees v Howard Kennedy LLP: Whether dissolved partnership had been validly served with claim form and whether solicitors must confirm if authorised to accept service
http://www.bailii.org/ew/cases/EWHC/Ch/2016/2302.html
The defendant firm of solicitors had (in common with many firms) ceased trading as a partnership and transferred its practice to an LLP (after the cause of action against it had accrued) and the LLP subsequently moved address. However, the claimant mistakenly served the claim form on the LLP at its new address. Prior to this, it had asked the defendant's solicitors whether they were authorised to accept service of the claim form, but no response to that communication was received.
A dispute arose as to whether the claim had been validly served or whether an order for retrospective validation should be made under CPR r6.15.
Where, as here, an individual is being sued in the business name of a partnership, (and service cannot be made by personal service, on a solicitor or European lawyer, or at an address given by the defendant) service should be at "the usual or last known residence of the individual; or principal or last known place of business of the partnership" (CPR r6.9). If the claimant has reason to believe that the defendant no longer resides or carries on business at that address, the claimant must take reasonable steps to ascertain the defendant's current residence or place of business. Chief Master Marsh doubted whether a dissolved partnership is capable of having a "current place of business". In any event, there had been insufficient information to conclude that the old firm had a current place of business at the LLP's new address.
Nor had the claimant taken reasonable steps to ascertain the current address. Here, the claimant had failed to request a partnership membership statement under PD 7A para 5B: "It seems to me, in the circumstances of a partnership having ceased to carry on a business, and that was something the claimants knew, it was a requirement for the claimants to make a request for a partnership membership statement."
Nor was there a good reason to order alternative service under CPR r6.15. It was not open to the claimant to argue that the defendant was denying service on a "technicality": "The rules relating to service of claim forms are technical, but they must be complied with". The judge also confirmed that the defendant's solicitors could not be criticised for not responding to the request for them to confirm if they were authorised to accept service: "I do not think that such a criticism can properly be made, given that there is no obligation on behalf of a party to appoint solicitors to accept service of proceedings and, in particular, the absence of a chasing request for a response to that email, leaves the absence of a response as an entirely neutral matter and not a matter of criticism."
(Re)insurance Weekly Update 33- 2016
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