“The most basic step required in civil litigation”

A recent High Court case reminds of the critical importance of serving Claim Forms correctly.  Failure is likely to result in a claim of negligence against a solicitor whose lapse has left the intended Claimant without their claim.

Legal proceedings start formally when a Claim Form is issued by the Court.  It is a simple two page document which the Court will seal in return for the relevant issue fee.  It may have details of the legal claim set out in it or attached to it, the ‘Particulars’.  But in order for that claim to proceed, it is absolutely crucial for a solicitor to serve that Claim Form on the Defendant(s) in accordance with the court’s procedural rules: the Civil Procedure Rules or CPR.  Described by the Judge in this recent case as “the most basic step required in civil litigation”, it follows that failure by a solicitor to comply with the CPR for service of proceedings may well result in a negligence claim where consequential loss is suffered by the Claimant(s).

The CPR are clear.  From issue of the Claim Form it must be served with Particulars within four months.  Service of the original sealed document can be by any number of methods such as delivery in person or by first class post, or by serving it on solicitors who are authorised to receive service.  There are plenty of hazards in relation to the defendant’s correct address for service, the strict four month period and the need for Particulars to be served, but they are easily avoided by close reading of the Rules and suitable care and attention.

In this case, the Claimants could have served the Claim Form properly well within time by asking the Defendants’ solicitors whether they had authority to accept service. And then by serving sealed copies of the Claim Form on each of the Defendants’ solicitors if they responded positively to the question within reasonable time, or otherwise on the Defendants themselves at the addresses identified on the Claim Form.

However, the solicitor for the Claimant had only sent a copy of the Claim Form to the Defendant’s solicitors after it was issued.   They then separately, and far later, sent a copy of the Particulars to them.  No express authority for service on the Defendant’s solicitors had been given. This was deemed ineffective service and the Judge ruled that the Claim Form had not been validly served. The purpose of sending the copy Claim Form was considered.  Sending the copy was clearly said to be so that the Defendants knew a claim had been issued, rather than because the Claimant was intending then to serve it, which led the Court to decide that service had been ineffective.

The reason why valid service matters is because legal claims can become time barred if they are not started within certain time periods, for example six years of a breach of contract. For example if a breach of contract caused Mr Smith loss on 1 June 2011, then he had until 31 May 2017 to issue a Claim Form.  If he did that on 1 March 2017 but failed to serve it by 31 July 2017 then he will have lost the right to make a claim.  He cannot issue another Claim Form in August 2017 because his claim for breach of contract has by then become time barred.

This is why careful service of Claim Forms is often vital.  There may be no second chance.  In these circumstances you might think judges should be more sympathetic to claimants whose solicitors have erred by, for example, sending only a photocopy Claim Form without Particulars: but they are not sympathetic without really compelling reasons.  More often than not, as in this case, they leave the hapless Claimant to recover their loss from their negligent solicitor.

Higgins and others v ERC and others [2017] EWHC 2190 (Ch)

About the author

Susan Hopcraft Partner

Susan advises on all aspects dispute resolution particularly in the financial services sector. She has extensive insurance, professional negligence and restrictive covenants experience. She deals with claims against solicitors, valuers, surveyors, brokers and accountants, fraud issues, recoveries for lenders and bank mis-selling.