SERVING THE CLAIM FORM
The task of getting the Claim Form to the other side should be a simple one. Yet the rules on service are complex. That is because they set out to cover every situation that could conceivably arise in litigation. These notes pick out just the rules that must be followed in an infringement case against one or more defendants located within the jurisdiction of the English Courts. Service abroad and service on particular types of defendant (local authorities, government departments, unincorporated associations, members of the armed forces etc) are not covered. Nor are the provisions for service of Appeals from the UK IPO, or situations where service may be effected on the Address for Service recorded there.
In Service Procedure Sources I have set out extracts from the Civil Procedure Rules and have incorporated the "gloss" on its provisions to be found in the Practice Directions, Chancery Guide and Patents Court and Patents County Court Guide.
Service of Infringement Claim
In an infringement case where the Claim Form is accompanied by the Particulars of Claim the timetable for the whole of the pre-trial procedures is dependant on the date of service. The Defendant has 14 days in which to file his Acknowledgement of Service and all the other dates flow from that. So making a mistake in serving will delay everything that follows. Maybe the worst consequence of that will be a temporary embarrassment with your client. But if the delay causes a limitation date to be missed, or forces the client to litigate in an unfriendly foreign court in which his opponent has issued proceedings in the meantime, the error could prove to be expensive.
Service is one of those areas where you should not assume that the commonsense answer is the right one. The rules are intended to enable the Court to satisfy itself that the Defendant has had the claim brought to its attention. But the way in which the rules carry that principle into practice may lead to surprising results. It may mean that
CHECKLIST FOR SERVING THE CLAIM FORM
If speed is likely to be important you may need to engage the services of a process server in advance and then get the sealed copy Claim Form and the response pack into his hands as soon as the Claim Form has been issued (see under Personal Service below).
You should obviously have checked that the Address for service for each Defendant, as set out on the Claim Form, is correct and up to date. They can change quickly, (particularly in the case of a company’s registered office).
There is scope for mischief here and the practical approach is don’t accept what the defendant says, but get the confirmation in writing from the lawyer. And if in doubt don’t just post the papers to the lawyer but deliver them to him at a prearranged appointment and have a copy endorsed – “I acknowledge receipt, by way of service, of a claim form of which this is a true copy and confirm that I am authorised to accept service on behalf of [name of Defendant(s)] [Date] [Signature].” This will avoid the delay and other problems that may arise if some time after posting the documents you receive a letter explaining that, although the lawyer had confirmed that he was instructed to act for the defendant in question, that did not mean that his instructions extended to accepting service on the client’s behalf. The letter then conveniently omits to return the sealed service copy of the Claim Form or, if it is enclosed, apologises for having sat on it for 10 days!
Alternatively the letter may say that, although instructed to accept service on behalf of Defendant A, the other three defendants have not instructed him to that effect. It is therefore important to pin the lawyer down on whether he is authorised to accept service and, if so, which of several defendants have given that instruction. If you do get messed around in any of these ways, you may be glad that you got the court to stamp a couple of spare copies of the Claim Form, as suggested earlier.
I think that if you are faced with the need to serve personally it is much better, in any event, to hire a process server to do the job. Their fees are less than ours (so more likely to be recoverable in full) and they know all the tricks.
In the past one advantage of personal service was that time began to run from the moment of delivery (provided you managed this before 5pm). But nowadays service is deemed to take place on the second business day afterwards. That is a sensible enough rule where service is effected by post, but it is a little odd to require time to stand still, in effect, for two days simply to create consistency. (A business day, incidentally, is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day).
You should check that put the papers into the post box before the last collection date for the day (and record that fact also). You will then have a clear record to support either a certificate of service (see 6 below) or a Witness Statement/Affidavit of service, if either is needed in the future.
Don’t be tempted to use recorded or registered mail – the rules don’t require it, you don’t need it to prove service and it can cause delay.
6. File at Court:
a. a certificate of service. This must be done within 21 days of service of the Particulars of Claim, unless an Acknowledgment of Service has been filed in the meantime (CPR 6.17(2)). Although it is possible, therefore, to wait until the time for filing an acknowledgment has expired, I think it is better to do it straight away. That way it doesn’t get forgotten and you have the record on the Court file in case it becomes necessary to apply for Judgment in Default. The form of certificate is N215, which is easy to complete and can be downloaded from the Court Services “form finder” site: (http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do ). It will need to be filed at Chancery Registry in Thomas More Building Room TM 5.04.
b. a copy of the Particulars of Claim. If the Particulars were served with the Claim Form then under CPR 7.4 a copy of the particulars of claim (where served separately from the claim form) must be filed within 7 days of service on the defendant.)