Well, we haven’t. Rather, this formed the basis of a recent application to dismiss before a Costs Judge in London’s High Court.
In 2019, the defendant solicitors acted on behalf of the claimant in a personal injury claim. A bill of costs was sent to the claimant on 30 April 2021.
The claimant instructed another firm of solicitors to seek an assessment of the defendant’s bill of costs. His new solicitors then purported to serve Part 8 proceedings for an order under section 70 of the Solicitors Act 1974 on 29 July 2021.
It transpired that the defendant had moved its registered office on 25 January 2021, and the proceedings were sent to its previous address. Proceedings were also emailed to the defendant.
On 30 September 2021, the defendant emailed the claimant’s solicitor to advise that service had not occurred. The claimant’s solicitor then sought to serve an amended claim form, at the defendant’s new address, on 5 October 2021.
The defendant refused to accept service on the basis that time the relevant time limit had expired on 26 September 2021. They applied to strike out the case. The claimant made a cross-application to dispense with service.
The place of service, for a company registered in England & Wales, is “…the principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.”
The rules governing service are clear that it is the registered office or principal place of business – which appear to be one and the same in this case – which needs to be used as the postal address for service upon a limited company.
The Costs Judge cited with approval the judgment of the Court of Appeal in Kuenyehia v International Hospitals Group Limited (2006). In that case, on the day before the time ran out, the claimants sought to serve the solicitors acting on behalf of the defendant – even though they had not indicated authority to accept service. They also faxed a copy of the proceedings to the defendant directly.
The Court of Appeal concluded that the discretion to dispense with service should only be exercised in “an exceptional case”.
Even then, “…the power was only likely to be exercised if the claimant had either made an ineffective attempt in time to serve by one of the permitted methods or had served in time in a manner which involved a minor departure from one of those permitted methods of service.”
A “minor departure” might be using second-class post where the rules stipulate first class. Service by fax without consent fell without this provision.
The Costs Judge concluded:
…there is nothing within the rules to require one party to assist the other and a practical solution does not alter the legal position.
The claimant’s claim was struck out.
The claimant’s solicitor made a schoolboy error which the defendant easily exploited. Such errors can be minimised through effective due diligence. Using checklists to identify the legal defendant (including their address) and any limitation issues is a good idea. Double-checking before service helps too.