Personal service under the Civil Procedure Rules (CPR)
Situated opposite the Royal Courts of Justice and a stone's throw from many central London courts, Saunders Law is well placed to deal with all aspects of commercial litigation. We are regularly called upon by litigants and law firms, both national and international, to effect personal service of court claims on individuals, companies, partnerships and directors in the UK, and which can be extremely tricky.
Our commercial litigation solicitors have drawn on their extensive experience of personal service to provide some key considerations below.
The article is concerned principally with personal service within the jurisdiction of England and Wales, and does not include service on parties located abroad, for which different provisions would apply. The outline below does not constitute, and cannot be relied on as legal advice, and you should seek independent advice tailored to your particular circumstances.
What is service of a claim?
The Civil Procedure Rules (CPR), the rules which govern civil litigation, broadly define service as "undertaking steps outlined by the court as being necessary to bring documents used in court proceedings to a person's attention".
In essence it is how can you make the defendant aware that the claim exists and needs to be dealt with, in line with court rules.
To understand "service", it helps to have an overview of some key litigation terminology and process, outlined below.
Litigation process / terminology
A common starting point of litigation, is that the claimant (the person starting the claim) writes to the defendant (the person against whom the claim is brought) outlining what the nature of the alleged claim is, what they require by way of compensation or remedy, enclosing key documents, requesting documents they don't have and suggesting means of amicable resolution.
This initial letter is usually referred to as a "letter of claim". If a claimant does not send a letter of claim and issues proceedings, they will likely be penalised by the court later on financially.
If the defendant does not respond to the letter of claim by a certain timeframe, which can vary depending on the type of case, or does respond but disputes liability or the value, the claimant may be entitled to issue (broadly "commence") a claim at court.
To issue the claim, the claimant normally has submit a claim form to the court, and a document which formally sets out the circumstances of the case called a "particulars of claim" and pay a court fee.
Provided everything is in order, the court should "issue" the claim and put its seal on the claim form to show it is approved. Historically the court put a physical stamp on the documents, but court documents can also be stamped electronically via CE-File, an electronic court filing system, which is now mandatory for several High Court divisions.
Once the claim is issued and sealed, the claimant then needs to take further action and deliver the documents to the defendant. The delivery of these documents to the defendant, so as to make the defendant aware of the claim, is known as "service" of the claim.
The rules are set out in the CPR, but are surprisingly complicated and there is much case law around examples of failed service. The consequences can be potentially dire.
Who is required to carry out service?
The claimant who issues the claim at court is required to effect service on the Defendant, unless the court does so.
The claimant may delegate the task to a third party, such as a third party process server or solicitors, and is something the firm can assist with.
Why is service important?
If a court claim is not properly served, the claim may potentially be struck out by the court (i.e. declared void) and have to be reissued again.
If the claim is served too close to a deadline when the claim automatically expires, and service is incorrect, it may be too late to bring the claim at all.
If service is disputed, there may have to be an added court hearing early on, which will increase both sides' costs, and if the party responsible for service has fallen short of the mark, they may have to pay the other side's legal costs of this hearing.
In terms of procedural fairness, it is important that the defendant is made aware of and is given opportunity to respond to the claim, as otherwise the claimant could potentially obtain judgment automatically, by alleging they had served the court documents on the defendant, when they hadn't, and the defendant simply hadn't responded.
If the claimant is found to have lied or to have not performed service properly, or cannot prove they have effected service properly, their claim may potentially be dismissed, and purposefully misleading the court may constitute a criminal offence of contempt of court.
It can be more secure therefore for the claimant to obtain proof how they delivered litigation documents to the defendant, and to show that the party definitely has received the documents and been effectively served.
If the defendant then fails to respond, this provides assurances to the court that the fault rests solely with the defendant and not the claimant.
What documents do I need to serve? What are the timescales?
There are two key documents relevant to service in commercial litigation. There is the claim form, which is a summary of the main points of the claim, the value, and sets out the address for the defendant, and which the court should seal, and the particulars of claim, which is a longer, more technical outlay of the facts and history of the dispute, and which should set out what remedies are required, and need to be attested by a statement of truth. The claim form and particulars are commonly produced at the same time, but do not necessarily need to be, and the particulars can follow slightly necessary if necessary.
The claim form needs to be served within 4 months of when the claim was issued.
The particulars of claim can potentially be served 14 days after the service of the claim form, but if doing so falls outside of the general 4 month deadline, this may be out of time.
As such, both the claim form and particulars should served within 4 months, but within that period, they could potentially be staggered. However, unless there is a good reason not to, it usually makes sense to keep both documents together.
The claimant has to file a certificate at court that service has been correctly effected within 21 days of the service of the particulars of claim, unless the defendant has already filed "acknowledgement of service" of the claim themselves beforehand.
For personal service, the certificate needs to state the date and time when the service was effected.
The CPR court rules appears to suggest, if a person is served personally with a claim form, service might not be effected until 2 working days later and appears to mirror rules on service by post.
This suggests serving a defendant on the last possible day of the 4 month period personally may not necessary meet the deadline and this should be avoided and legal advice sought early on.
If a document, other than a claim form, is served personally on a defendant before 4:30pm on a business day it is usually deemed to have been served that day. If it is served after 4:30pm it will be the next business day after that. I.e. a claim served either at 5pm on Friday, or 5pm on Sunday, likely extends to Monday.
Timescales can potentially be extended by agreement
Where deadline whereby the claim can be struck out automatically is imminent (limitation), parties can potentially agree an amicable extension to suspend time and extend the period by which the claim can be issued and served.
Early legal advice is essential and careful tactical considerations are required.
It may be possible for a claimant to issue the claim protectively at court so that limitation stops, but refrain from serving the claim form and particulars of claim during the 4 month period.
It may additionally be possible within this 4 month period, to further extend the relevant time for serving documents by consent.
Original claim form or copy?
Historically the claimant has to serve the original copy sealed by the court and serving a photocopy would not be permitted.
However, the court has recently introduced a new electronic filing system called CE-File, in which a pdf of the sealed document is made available to the claimant, but not a physical hard copy.
It appears then at present to be a bit of a grey area whether service of the pdf via CE-File, absent a hard copy being produced, is sufficient for effective service, or whether the claimant still needs to request a hard copy and serve that.
It is likely the court rules may need to be changed or relaxed in this respect, but it carries some potential risk and checking with the court may be sensible.
Differing methods of service
In some cases, the court can potentially serve the claim on the defendant itself by sending it to the address for the defendant on the claim form.
The court might opt to send it by post, or deliver it personally via bailiffs, or another means permitted by the CPR (court rules), which might include fax or electronic means, potentially, although it may potentially require the consent of the defendant to do so. Many solicitors outline "we do not accept service by email" on their letter footers, or email, for example.
Service by the claimant
In some cases however, the court might order that it requires the service of the claim to be carried out by the Claimant.
In this situation, the court will seal the court documents, but return copies to the Claimant for them to effect service on the defendant themselves. The Claimant will need to confirm to the court when it has done so if the defendant does not formally acknowledge the claim.
For security, and as the court system can take a while to respond, some claimants or their legal representatives, prefer to effect service themselves on the defendant in any case, especially if the case is close to a deadline where it might otherwise be struck out automatically or for high value or high risk matters.
A claimant can request that the court returns sealed documents to it for it to effect service instead. There are reported cases where the court has failed to notice this request and effected service directly, so any request to the court should be made very clearly in correspondence.
Use of third party agents
For parties situated in countries outside of the UK, but who need to serve a claim issued in English Courts on a party in the UK, instructing a third party which is well versed in litigation process, such as a solicitors firm, is common practice and can offer greater security.
If the court orders personal service must be undertaken, or the CPR outlines it is mandatory, personal service must be complied with to be effective.
If personal service is not mandatory, but is permitted, it can often be a more secure approach in any event.
Proof of postage, or proof of leaving a document at an address does not guarantee or prove the defendant has actually received it.
What does "personal service" of a claim mean?
There is no set definition in the CPR and the term "personal service" might cause some confusion.
It does not necessarily mean the claim can only be served on a defendant who is a person (an individual) as a company can also be "served personally". So what does it mean?
Very broadly, personal service is the transfer of the court documents from one person to another, as permitted by the court rules (CPR).
How is personal service undertaken? Who should be served?
If the claim is against a defendant who is a person, the court documents need to be left with that individual, and they should be made aware of the nature of the documents.
If personal service is against a defendant which is a company, documents can be left with a person "holding a senior position within the company or corporation". This might include a director, chief exec., manager or someone else. The rules differ whether the company is registered or not.
If the defendant is a partnership (where partners who are being sued in the name of their firm,) documents can be left with a partner, or a person who has the "control or management of the partnership business at its principal place of business".
For personal service is mandatory, leaving documents at a premises is not likely sufficient.
Exception to personal service
If the defendant nominates a particular solicitor or firm, with a given address, which is authorised by the defendant to accept service of court documents, the claimant must serve the documents there, and personal service would not likely constitute acceptable service.
Where should personal service take place?
Unlike service by post, in which the court documents can potentially be sent to the usual or last known residence, or for companies, the principal office or another place of business of the company within the jurisdiction which has a real connection with the claim, personal service could potentially be effected anywhere, provided the person can be shown to have received the documents.
It might not necessarily be at the defendant's home, but could also potentially be in a public space, such as an art gallery, or potentially during the course of a sporting event.
What constitutes successfully "leaving" documents with someone is a grey area, of which there are many cases that try and clarify.
Case law outlines when a person refuses to accept the documents, they need at least to be made aware of the nature of the documents (and have actual knowledge of their nature or content), and then documents could be left near them potentially.
Case study Tseitline -v- Mikhelson  EWHC 3065
Real life disputes regarding service can involve slightly farcical arrangements with someone trying to shove documents at someone who refuses to take them. It can become more slapstick than the rules intend.
In this case, service was attempted on the defendant in and outside of a well-known London art gallery where the defendant refused to physically take documents. The defendant was told they were court documents in English, but he later claimed not to speak English, and did not know what was being said. The process server did not initially manage to leave documents with the defendant, and the defendant walked off. As the defendant did not actually take the documents, and the process server took the documents away again (after the first attempt), the defendant argued service was not effective.
Issues to be tried were, are documents handed to or left with or near someone, if they are taken away again properly served? If the contents or nature of the documents are explained in a language which the defendant does not understand, is that sufficient?
This case confirmed previous case law, that for personal service, documents must ideally be handed to the person upon whom they are to be served, but that if the person does not accept the documents, they may be placed near to them and provided they are told what the documents contain.
In this case, there were two attempts at service. In the first, the process server handed documents to the Defendant outlining what they were in English, but the Defendant did not understand. The Defendant briefly took hold of documents whilst the process server was also holding them, but the process server failed to let go completely whereas the defendant did let go. This resulted with the process server keeping hold of documents at all times, whereas the defendant only had hold of them for a few seconds. The court found and the process server did not relinquish control and this did not constitute good service.
In a second attempt shortly after the first, the process server later touched the documents against the Defendant's body and let go. As the defendant opted not to take hold of them, they fell to the floor. The court found this did constitute good service, because the process server had relinquished control, and the documents had been left with the defendant, albeit the defendant opted not to pick them up.
The court determined, with the assistance of video footage, that despite the defendant not speaking English, he was likely informed by a bi-lingual family member present with him at the time what was happening so on balance the court found the defendant did likely know the documents were legal documents and service had been effected.
The case seemed to turn on whether the Defendant had "actual knowledge" of what the documents were or not, and whether documents, even if only for a very brief period, had been left in the defendant's control.
It helped here that there was video recording to support what happened, and that the defendant was surrounded by bi-lingual family members at the time.
If the defendant had not been with bi-lingual family members, and genuinely didn't know what the documents were, and refused to take them, and so never became aware of their contents, service would likely have been invalid.
It seems likely to follow logically, that if the defendant did not understand what the documents were at the time, but did take documents away with him, and had opportunity to have them translated afterwards, this may have constituted good service.
The case is useful in showing, even though it initially appears straight forward, how tricky service can be in practice and technically, even for professional and veteran process servers.
How can I evidence personal service?
It is sensible for a lay person, or a firm outside of the UK, to instruct solicitors or process servers, or both, to effect service, and produce a witness statement outlining the circumstances, evidenced by a statement of truth. It can help to have photographs or video taken, as the case above demonstrates. It may be necessary to take a translator.
Process servers can offer tried and tested catalogue of tricks of the trade in getting to individuals who are good at evading detection or know not to take documents, to get served, but solicitors can help assess process with regard to the court rules.
What if the person cannot be found, or refuses to take the documents?
As per the case study above, it may be that leaving documents near to the person, whilst outlining the nature of them may constitute good service, provide the control of them is relinquished.
If a person is actively trying to evade service, and goes to ground, it may be necessary to track them down, with reference to their schedule. Service may be delayed until such time as the defendant can be physically located.
It is often sensible to look for public or family events where there is increased likelihood the defendant will be present.
What can I do to maximise chances of effecting personal service?
- Determine the who, when and how of the court rules on service.
- Take early legal advice if unclear.
- Instruct a third party, such as solicitors, to effect service.
- Provide sufficient information to solicitors, such as photos of the defendant, and outlines of their routines and usual stomping grounds.
- Double check addresses for Defendants are still correct.
- Leave plenty of time, and do not leave things to the last minute.
- Check and take advice on any limitation periods that might prevent the claim from being issued.
- Get the process server to produce a witness statement.
- Where the Defendant is a company, try not to confuse differing methods of service. For example if the court rules say you have to leave documents at a certain place, but they are given to a person instead, or vice versa, these methods may conflict with what is technically required and render service ineffective.
- When you have determined the correct method of service, try and secure evidence that you have complied. For example, if you leave documents at a location, you could take a photo to show how and where, and even date stamp how this was arranged, or take a video.
- If you are serving on someone who doesn't speak English, potentially consider taking a translator with you.
Instructing solicitors to effect personal service can help offer peace of mind and increase security, in what is potentially a legal minefield.
At Saunders Law, we're dedicated litigators with vast experience assisting clients to resolve their commercial disputes, and effecting personal service of claims.
For further information, read our Guide to Litigation.
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