SERVING THE CLAIM FORM

Introduction

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

a person who has the Claim Form in his hands has not been properly served; but that
he or she will be treated as having been served, even though they are in fact completely unaware that proceedings have even been issued.

CHECKLIST FOR SERVING THE CLAIM FORM

Plan Ahead. At the most basic level you will need to prepare a copy of the Claim Form for each Defendant. The Court will place its seal on each one. And it is the sealed copy that must be served. And if you think that you might have to use more than one method of service in order to fix a particularly tricky defendant it is sensible to get a spare or two. (Procedural folk lore says that a defendant was once held to be in contempt of court for having eaten the document served on him – but there are other instances when a spare sealed copy might be valuable).

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).

Find out if the lawyer on the other side will accept service. The most straightforward method of service is to deliver the Claim Form on the other side’s lawyer. The rules say that service may be effected on a “solicitor” but don’t panic, the word is defined to include authorised litigators too – CPR 6.2(d) – and I will use the neutral term “lawyer” to cover both. But service may only be effected this way if the lawyer is authorised to accept service on the relevant defendant’s behalf. Rule 6.7 says that delivery to the lawyer will only constitute good service if:

The Claim Form is delivered to the lawyer’s business address within the jurisdiction; and
Either the Defendant has given that address in writing as the address at which service may be effected or the solicitor has confirmed in writing that he is instructed by the defendant to accept service there.

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.

Decide who is to serve. You can, of course, leave the task of service to the court (CPR 6.4(1)(a)) but this is not recommended. In fact the default setting under the rule is that the Court will do it unless the Claimant states that it wishes to do so. Service by the court means that, at best, you surrender control of the process to an impenetrable and uncommunicative machine. At worst, it can mean that it is not done at all or is done badly. You should therefore make it very clear when issuing the Claim Form that you require the stamped service copy(ies) to be given back to you and not kept by the Court.

Decide how service will be effected. It is possible to effect service by more exotic means such as fax, email or even document exchange. My advice is to keep it simple and rely on either personal service or postal service.

Personal service on an individual. An individual is served with a Claim Form by “leaving it with that individual” (CPR 6.5(3)(a)). If you decide to effect service yourself and the defendant won’t take the document from you I was always told that it was enough to touch him on the arm with it and then let it fall to the ground. But I have no authority for that statement. I do know of one case where the defendant became so cross that he stuffed the papers down the back of the persistent process server’s shirt – another contempt of court rap

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).

Personal service on a company. Under CPR 6.5(3) personal service is effected by leaving the Claim Form (and Particulars of Claim if being served at the same time) with a person holding a senior position within the company. By “senior position” is meant a director, company secretary, the chief executive, a manager “or other officer” (paragraph 6.1 of the Practice Direction to Part 6). In practice service will generally be effected on either the company secretary or a director. Their details will be recorded at Companies House, so there will be less chance of the individual denying later that he or she was a “manager” or “officer”. On one occasion an associate whispered in my ear, half way through the evidence of company director A, that the man in the witness box was in fact the same person who some months earlier had accepted service of process claiming to be director B. So always take a careful look at the person accepting service and try to persuade him or her to give you a business card that confirms their status. Or, better still, leave it to the process server.

Postal service (individual or company). This need not be via the Royal Mail, but again I would keep it simple and avoid the other organisations that have now broken the monopoly. Just put the documents and covering letter in a post box, stamped first class, and make an immediate note on file recording the location of the post box and the time when posting took place. In the case of a company that has its registered office at one address (frequently its accountants or solicitors) and its head office the papers should, of course, be posted to the registered office. But I usually then send copies to the managing director at the head office address explaining that formal service has been effected at the registered office.

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.

Record service and mark up the diary. If the Claim Form is served on its own then time does not start to run against the Defendant. He can simply wait until the Particulars of Claim arrive before he needs to even think about filing an acknowledgment of service. But if it is served with the Particulars of Claim the effect of the rule (CPR 6.14) is that service is deemed to have taken place on the second business day after either the document is handed over (in the case of personal service) or is put in the post (for postal service). So you need to count forward 14 days from that date and diarise a reminder to check to see if an Acknowledgment has been filed by then. If it has not then you will need to consider making an application for judgment in default. But that is the subject matter of a separate practice note.

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.)

Consider alternative means if you experience difficulty. Although I have said that these notes only cover two types of service it may be necessary to consider others if you face difficulty with personal or postal service. The Rules and Practice Directions include detailed provisions dealing with cases where, for instance, the Defendant has no obvious address or is being deliberately illusive.

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