Contesting jurisdiction where there’s defective service

07 Jul 2021

In a recent noise-induced hearing loss (NIHL) claim, the claimant alleged he was exposed to excessive levels of noise during the course of his employment with the seventh defendant from 2000/01 to 2008/09.  Claims were brought against five other defendants and proceedings were also issued against a further defendant but not served.  The issue at the heart of this case was whether the claimant had following the correct procedures by assuming BLM had accepted the service of proceedings without formal, written confirmation.

BLM was instructed to act on behalf of the seventh defendant in John Livesey v Abaris Holdings Limited.

Proceedings were purportedly served on the firm by the claimant’s solicitors despite the claimant not receiving written confirmation that BLM were instructed to accept the service of proceedings in accordance with CPR 6.7.

CPR 6.7 states the following:

Service on a solicitor or within the United Kingdom

6.7

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –

(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or

(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,

the claim form must be served at the business address of that solicitor.

Contesting jurisdiction

An acknowledgment of service was filed indicating jurisdiction would be contested. The claimant’s solicitors responded that the pre-litigation handler had verbally confirmed that BLM would accept service and provided a telephone recording in support.

No evidence was provided that the claimant had complied with CPR 6.7 and an application was filed contesting jurisdiction on the basis that whilst a telephone conversation had taken place, CPR 6.7 requires written confirmation and that accordingly service was defective.

The application was listed for a hearing where it was argued on behalf of the seventh defendant that the claimant could and should have made a cross application pursuant to CPR 6.15(2), allowing the court, upon an application being made, to order “that steps already taken to bring the claim form to the attention of the defendant by an alternative method or an alternative place is good service.”

The claimant argued that he had complied with CPR 6.7 on the basis of an objective approach to the correspondence between the parties. The claimant attempted to rely on correspondence sent to BLM pre-litigation in which it was mentioned that they understood BLM were instructed to accept service.  The claimant argued that the letter, and the lack of a response to the point raised, was sufficient to comply with CPR 6.7. The claimant also argued that it was the responsibility of BLM to confirm it was instructed.  The claimant’s counsel confirmed, when asked by the judge, that he was making an alternative application under CPR 6.15(2) and it was conceded there had been no written confirmation that BLM had been instructed to accept service of proceedings.

The court’s findings

The judge found in favour of the seventh defendant and rejected the claimant’s arguments. She refused to infer that the lack of a response to the claimant’s solicitors correspondence and the telephone conversation satisfied CPR 6.7. She held that correct service was the responsibility of the claimant and the onus was on them to ensure service took place correctly.  It was accepted by the claimant’s solicitor in her statement that further clarification about service from BLM had not been made prior to proceedings being served. The judge also stated that if the claimant was in any doubt about service, proceedings could have been served directly on the seventh defendant and BLM informed of its intention. This was not done. The judge therefore held that CPR 6.7 was clear and the claimant had served on BLM despite there being no confirmation in writing.

The judge found therefore that proceedings had not been validly served on the seventh defendant and ordered that the court did not have jurisdiction to hear the claim against the seventh defendant. The judge ordered that the Claim Form against the seventh defendant was set aside and the claimant was to pay the seventh defendant’s costs in the sum of £2,923.68 which were subject to QOCS.

The claimant sought oral permission to appeal after the judgment which was refused by the judge on the basis that (i) the case could be distinguished from Actavis Group hf v Eli Lilly & Company [2013] EWCA CIV 517; and (ii) no application had been made pursuant to CPR 6.15(2) until oral submissions on the day with no explanation as to why the application had not been made earlier in writing.

What this means for you?

It is clear from this decision, and other cases involving service, that the courts generally take a strict interpretation of the rules. The fact that there was a telephone conversation in which service was discussed, and a letter in which they stated they understood BLM were instructed to accept service,  was not sufficient to comply with the rules.

CPR 6.7 clearly sets out that there must be written confirmation that the solicitors are instructed to accept service of proceedings or written confirmation that the defendant has nominated solicitors to accept service of proceedings. Where CPR 6.7 has not been complied with, service is defective and jurisdiction ought to contested.

It is worth noting that the claimant had received an extension of time for service of the Claim Form against all defendants until 23 November 2020 and served proceedings on 20 November 2020. Upon the issue of defective service being brought to the attention of the claimant, the four month period set out in CPR 7.5 had expired. This is the danger of proceedings being served at the last minute as the claimant was unable to take any steps to resolve the issue.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Michael Cairns

Michael Cairns

Partner,
Manchester


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