The thorny issue of service of proceedings continues to take up Court time with applications when it goes wrong. This article is intended as a timely reminder of a wrinkle of the service rules that can be overlooked. In the event that the service of proceedings is defective, the Defendant has an opportunity to apply to strike out a claim which, save for the procedural failure, would be allowed to proceed.
Nomination of a solicitor to accept service on behalf of a named party is a regular occurrence when proceedings are anticipated.
Rule 6.7 of the Civil Procedure Rules 1998 sets out that, where the Claimant has been given notice in writing of the business address within the jurisdiction of a solicitor as an address at which the Defendant may be served with the Claim Form, the Claim Form must (subject to one exception) be served at the business address of that solicitor. Service on any other address would be defective.
The only exception to this rule is that in the case of a Limited Company. Section 1139 of the Companies Act 2006 provides that service can take place at the Registered Office of the company, regardless of any nomination. As a point of good practice in order to avoid any issues with proceedings being missed, companies should be alerted to the fact that, notwithstanding the nomination, proceedings could still be served on their registered addresses and that any proceedings should be sent to solicitors immediately upon receipt.
When seeking to nominate a solicitor to accept service, it is important that this nomination complies with the wording of Rule 6.7; it is not sufficient to provide simply the name of the firm of solicitors, and the address of the solicitors' office must be included, albeit the information may be provided either by the party (or its insurer) or by the nominated firm of solicitors. The fact that a firm of solicitors has been representing a party does not of itself mean that the solicitors are nominated to accept service, and the point should be clarified before proceedings are served; service on solicitors who are not nominated to accept service is not valid service.
A failure of the Claimant to adhere to this rule can have drastic consequences on the claim, as was shown in the Court of Appeal's judgment in Nangelenan v Royal Free Hampstead NHS Trust  EWCA Civ127. Prior to the issue of proceedings, the insurer of the Trust notified the Claimant's solicitors that they were instructing solicitors to accept service of proceedings. Shortly thereafter, the solicitors wrote to the Claimant's solicitors to confirm that they were instructed to accept service. When proceedings were served, the Claimant's solicitors sent them to the Royal Free Hospital (rather than the correct Defendant, the NHS Trust) at the end of the 4 month period during which the Claim Form could be served before its expiry.
The Defendant's application for an Order striking out the claim, as service had not been valid, led to the Claimant's cross-application for an Order allowing the name of the Defendant to be corrected and for a retrospective extension of time for the service of the Claim Form. Whilst a first instance the District Judge, concluding that the claim was not served validly, exercised her discretion to extend the time for service of the proceedings, on appeal the Circuit Judge decided that the retrospective extension was not within the scope of decisions available to the District Judge, leading to the claim being struck out. The Claimant appealed to the Court of Appeal which upheld the decision of the Circuit Judge. As the claim had not been served validly, the Claimant being under a duty to serve on the solicitors whose address had been given in the nomination, the claim should be struck out.
Save for limited companies, where solicitors have been nominated to accept service of proceedings and their address for service has been given, service of proceedings on any other address is not valid service and may lead to the striking out of the claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.