Review of Part 6 of the Civil Procedure Rules (Service of Documents)
Thompsons are the most experienced trade union and personal injury firm in the UK. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time, the firm will be running 70,000 claims.
The firm participates regularly in government consultations on legislative issues.
Response to questionnaire
Question 1: Do you agree that it is necessary to retain the principle that good service is effected if the claimant follows the procedural requirements for sending a document, regardless of whether it is actually received?
We agree. Whether or not the defendant receives the document it is still good service. Thompsons often encounters defendants who receive documents served by us but do not acknowledge that they have. They then wait until after the time limit before claiming the documents should have been sent to someone else rather than direct to them as defendants.
This is unacceptable and underlines the importance of retaining the principle that good service is effected if the claimant follows the procedural requirements.
Question 2: Do you agree that the court’s discretion to set aside default judgments provides adequate protection for the defendant? If not what further protections do you propose?
We agree. Defendants have the advantage of being able to apply to have default judgments set aside and, in our experience, courts grant those applications in more cases than they refuse them. They do not need additional protections.
Question 3: Do you agree that a claimant should be required to carry out reasonable enquiries into the defendant’s whereabouts before serving on an address that he knows is no longer current, but not otherwise?
We agree. Clearly it is defective service if the claimant does not make any or only inadequate enquiries about the whereabouts of a defendant when the fact that they had moved would have been clear if they had done so.
We propose there should be a new procedure allowing the claimant to apply to the court for judgment with evidence of what they have done to trace a defendant who has moved.
Question 4: Where the claimant knows that the defendant no longer resides or carries out business at the last known address, should they be required to consider alternative methods and, if appropriate, to apply for the court’s permission?
This proposal will lead to satellite litigation over what are appropriate alternative methods. Practice directions should be prescriptive as to what it is reasonable to do to trace a defendant who has moved without informing the claimant and without leaving a trail.
What is reasonable will include searches at Companies House and through trade directories. It should not (in the interests of proportionality) be necessary for the claimant to incur disproportionate disbursements or to instruct an inquiry agent.
The procedure described in our response to Q3 would enable the claimant to show the court that they have made reasonable enquiries and that, if they had to serve on an address where it is known the defendant is no longer at, that there was effective service in the circumstances.
Question 5: Do you agree that the time limit for serving the claim form should apply to the time within which the claimant must despatch the claim form after the date of issue? If not please explain why not.
We agree. The time limit should apply from the date that the claimant issued the claim.
Question 6: Should there be a standard period for determining the date of deemed service date for all methods of service, for example 2 days after despatch (being the longest current period)?
Yes. 2 days is appropriate. Where subsequent dates are set the date should roll from the date of deemed service.
There are exceptional circumstances where it may be appropriate to make a retrospective order of granting an extension of time for service of the Claim Form. These are dealt with in Q11.
Question 7: Do you agree that deemed service should take place on a business day? If not please explain why not.
Question 8: Should the deemed served date for e-mail be in line with fax service i.e. on that day if its transmitted on a business day before 4.30pm, or in any other case on the next business day? Please give reasons for your view.
We agree and would support the extension of the time to 4.30pm.
Question 9: Should postal service be limited to first class or equivalent services, or should any postal service be allowed? In the latter case, how much extra time (if any) should be built into the deemed date of service?
There should be no provision for a postal service that takes longer than Royal Mail. Royal Mail is the only proper method of postal service and any alternative used should be able to meet the same standard as first class post or not be used.
Question 10: Do you think that service on an e-mail address should be allowed as the same basis as service on a fax address (e.g. if the e-mail appears on the legal representatives letterhead)? If not are there any alternative options?
Service by email should be allowed but there should be a procedure for doing so which requires the claimant to state what attachments are enclosed and their format and also to put the claim form into the body of the email.
A defendant should have two working days to reply stating that they cannot read or open the email or its attachments and requesting it be re-sent specifying the format required. Time for service would, in those circumstances, be two working days from notification. They should also have two working days to inform the claimant the email was delayed in arriving.
Otherwise service should be deemed to be the time it was sent.
Question 11: Should the court be given the power to order retrospectively that service by an alternative method is valid? Please give reasons for your view.
Yes. It is right that the court has this power in exceptional circumstances where service has not taken place in time and an extension or permission to serve by other means is applied for.
Question 12: Do you agree, in principle, that the methods of service of claim forms or other documents on defendants in Scotland and Northern Ireland (in proceedings commenced in England and Wales) should be those permitted in England and Wales, without reference to the methods of service permitted under the procedural laws of Scotland or Northern Ireland respectively? If not, why not?
Question 13: If so, should this extend to personal service (by the claimant or his agent or solicitor)?
Question 14: Do you think in respect of property claims it should be possible to effect service of a claim form at a relevant address in England and Wales on the Land Register or an address given under s.48 of the Landlord and Tenant Act 1987? If not, why not?
Thompsons has no comment to make on this.
Question 15: Should a party be able to give an address for service anywhere within the United Kingdom? If not, why not?
Question 16: Should a party be able to give an address for service anywhere within the EU? If not, why not?
This should only be possible if the party also provides a fax number or email address so that the claimant can ensure belt and braces service if they are concerned about the post. Relying on postal services outside of the EU is not appropriate. Service rules may also differ in countries outside the EU.
Question 17: Do you think that a party should be able to provide up to three addresses for service of which at least one should be a postal address within the UK (or EU)? If not, why not?
Addresses supplied must be for all types of service. If more than one is given then it must be the claimant’s choice which one documents are sent to.
Question 18: Do you agree that the time limit for filing a certificate of service of a claim form should be changed from 7 days to 14 days to align it with the period for acknowledgment of service? Is a certificate of service necessary when an acknowledgment of service has been filed?
We agree that the time limit for filing a certificate of service for a claim for should be changed from 7 days to 14 days. We do not agree that a certificate of service is necessary when an acknowledgement of service has been filed.
Question 19: Should references in Part 6 to solicitors be replaced by references to any authorised litigator. If you think not, please give reasons for your view?
Question 20: Do you agree that judicial review claims against the Crown should be served in the same way as civil proceedings against the Crown, in that service must be on the relevant solicitor for the particular Government Department as set out in the list of authorised Government Departments annexed to Part 66. If not please explain why not.
We agree that service in judicial review claims against the Crown should be served in the same way as civil proceedings against the Crown. We do not however object to there being a wider list of authorised government departments.
Question 21: Are there other categories of judicial reviews where it would be desirable and practical to specify addresses for serving judicial review claim forms?
Addresses should be specified for serving all judicial review claim forms.
Question 22: Should the distinction between the county court and the High Court be removed so that a judgment creditor who is an individual litigant in person has the option to effect personal service personally in all courts?
It should be removed.
Question 23: Do you have any comments on the proposed draft of Part 6? Please state what these are and give reasons for your views.
We are not happy with the proposed draft Part 6 because it does not reflect what we have said in our responses above.