Service of documents: a new regime

The key changes are:

Time limits. The claim form must now be despatched rather than deemed served in time (CPR 7.5 and CPR 7.6). The critical event for limitation purposes is therefore despatch rather than deemed service.

Structural separation. There is now complete structural separation between the rules on service of the claim form (Part II, CPR 6) and the rules on service of other documents (Part III, CPR 6).

Business days. Saturdays and Sundays are excluded from being the date of deemed service. Under CPR 6.14, the date of deemed service must be a “business day”, as defined in CPR 6.2(b) (in part overturning Anderton v Clwyd City Council [2002] EWCA Civ 933).

Date for deemed service. The date for deemed service of a claim form is two business days after despatch by whatever method (CPR 6.14). The date for deemed service of other documents will still vary depending on the method of service chosen (CPR 6.26).

Where to serve. There is a new stand-alone rule regarding service of the claim form on the defendant’s solicitor (CPR 6.7).

Enquiries into last known address. Where a claimant has “reason to believe” that the intended defendant who is an individual is no longer at his default address for service, he must take reasonable steps to discover the defendant’s current address (CPR 6.9(3) and (4)). This is similar to the pre-October 2008 position.

However, the new rule also requires the claimant to consider whether an alternative address or method is available and, if either is, to apply to serve at the alternative address or by the alternative method.

Alternative service. Retrospective orders for alternative service are now allowed; only prospective applications were permitted previously (CPR 6.15(2) and CPR 6.27). The claimant must still show “good” reason to obtain such an order (CPR 6.15(1)).

Dispensing with service. “Exceptional circumstances” are still required to dispense with service of the claim form (CPR 6.16). This reflects the test applied under previous case law (although the predecessor CPR provision contained no express test). The new rule permits an application “at any time”, that is, in advance of service or retrospectively (CPR 6.16(2)). This reflects the accepted practice before 1 October 2008. (“Exceptional circumstances” are not required to dispense with service of documents other than the claim form (CPR 6.28)).

Service out of the jurisdiction. The rules have been renumbered. The claim form endorsements for service out of the jurisdiction without permission are now in a separate, new form N510, which needs to be filed with the claim form.

There are now two separate rules on service out of the jurisdiction without permission: service on a party in Scotland and Northern Ireland (CPR 6.32) and service on a party outside the UK (CPR 6.33).

CPR 6.40(2) provides that service on a party in Scotland or Northern Ireland must be by a permitted method under Section II or III of CPR 6. In the absence of any reciprocal arrangements between England and Scotland or Northern Ireland, however, it is not clear how a claimant can comply both with the requirements of the CPR and any requirements of Scottish or Northern Irish law relating to service of process.

Certificate of service. Where he effects service, the claimant must file a certificate of service within 21 days of service of the particulars of claim, unless the defendants have all acknowledged service within that time. However, to obtain judgment in default, a claimant must always file a certificate of service (CPR 6.17(2)).

As a result of the changes, prospective claimants should bear in mind the following:

Despatch in time. CPR 7.5(1) sets out the steps that need to be taken to effect valid despatch, according to the method of service used. For example, where the method of service is fax, the step required is completing the transmission of the fax.

This change was intended to make things simpler for claimants, the assumption perhaps being that the raft of litigation under the former provision requiring deemed service was a consequence of complexity, rather than claimants or those advising them leaving service until late in the day, and then having little time to deal with any difficulties that emerged.

Alternative service. It will be interesting to see how the courts exercise their new discretion to permit retrospective applications for alternative service. It remains extremely important, however, while the new provision is untested, for prospective claimants to ensure that they make any requisite application for alternative service in time wherever possible (coupled with an in time application to extend the validity period of the claim form). This is because although the court may allow a retrospective application, equally it may not. The provision is untested. Also, the court has only a limited jurisdiction to permit a retrospective application to extend the claim form’s validity period (CPR 7.6(3)).

Date of deemed service. A prospective claimant first needs to consider whether it is serving the claim form, or a document other than the claim form. If serving the claim form then, irrespective of which method of service is used, the claim form will be deemed served on the second business day after completion of the relevant step in CPR 7.5(1) (CPR 6.14). If the prospective claimant is serving a document other than the claim form, then the date of deemed service will vary according to the method of service used (CPR 6.26).

The date of deemed service of the claim form remains relevant because it is used to calculate the deadlines for completing the subsequent steps in the litigation timetable: most immediately, the time period for service of the particulars of claim, acknowledging service or filing a defence.

Structural separation. Many of the provisions which apply to “other documents” incorporate by reference the rules on serving the claim form.