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."
An assignment of rights under a contract is normally restricted to the benefit of the contract. Where a party wishes to transfer both the benefit and burden of the contract this generally needs to be done by way of a novation.
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