Civil litigation Evidence and Remedies

Commencement of Proceedings and Service

Chapter – 3 (Part 2)

A case is commenced or started when a claim for is filed before the court.
 The Claim form is issued when it is sealed by the court’s official seal
 Generally a claim form MUST be served with in 4 months of being issued
 If commenced in the High Court it must state the relevant threshold has been crossed
(25,000 or 50,000 ) or that it is a specialist High court case.

Part 7 claims:
1. What is the time limit for serving claim form?
The claim form must be served before 12.00 midnight on the calendar day 4 months after the
date of issue of the claim form. If the claim form is not served within 4 months, then it will lapse
and a new claim form must be issued, unless the claimant files an application for extension for
time for service of claim forms. (r.7.5)

2. What is a Particulars of Claim (POC)?

Formal written statement setting out the nature and particulars (factual details) of the
claimant’s case along with the relief or remedy sought from the D.
 This can be included in the Claim form when brief, or can be set out in a separate
document, which must be served with the claim form or at least within 4 months from the
date of issue of claim form.
 BOTH the claim form and POC must be verified by a statement of truth.

3. What documents should be served upon the Defendant?

Claim Form/Particulars of Claim, in personal injury claims - the Medical report and Schedule of
past and future losses and expense must be served and Response Pack ( forms of
acknowledgment of service, admission, defence and counterclaim )

Service of documents to Defendant

4. What methods can be used to serve the Claim form and other documents?
Usually any method of service can be used, unless otherwise specified by court or
requested by other party. The following methods are available:
 Instantaneous method: Personal service ( handing over the document in person), Leaving
document at the other side’s address, by fax or other electronic means
 Non-instantaneous - First class post, document exchange or other service which provides
for delivery on the next business day
 Any method authorized by the court.

5. Who will serve the claim form?

Service can be effected by the court or by claimant with permission of the court.
Certificate of Service - If effected by claimant, C should inform the court by filling a certificate of
service, unless all D’s file acknowledgment of service.

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 6. Which address should be used for the purpose of service?
The documents should be served at the usual or the last known address of the defendant’s
residence or principal office (for companies). If requested by D, D's solicitor's address can
also be used.
The “last known” address is an address where the D used to live but might not live there anymore.
 The phrase cannot extend to an address where the D had never resided.

7. When can the document be served at the last known address?

CPR, r. 6.9(3) - Where a claimant has reason to believe that the address of the defendant is an
address at which the defendant no longer resides or carries on business, the claimant must take
reasonable steps to ascertain the defendant’s current address.
(4) (a) If after taking reasonable steps the claimant manages to ascertain the defendant’s current
address, the claim form must be served at that address; or
(b) If the C is unable to ascertain D’s current address, the claimant must consider whether there
is— (i) an alternative place where; or (ii) an alternative method by which, service may be
effected.
(5) If an alternative service method/place is available, then the claimant must make an
application under CPR 6.15.
Alternative Service
 An application for alternative service must be supported by written evidence which must
state the reason why alternative service is sought, state the proposed alternative method
or place of service and explain why it is believed service will be effective by that alternative
method or place.
 E.g. of alternative method maybe by advertisement in a newspaper, service by text message
and service on the D at his/her insurer.
(6)Where the C is unable to ascertain D’s current address or place of business and NO other
alternative service method is available claimant may serve at the defendant’s usual or last
known address

8. What is a business day?

Day – normal calendar year
Business day – excludes weekends, a bank holiday, Good Friday and Christmas

9. What is Deemed Date of Service for Claim forms?

r. 6.14.   - Irrespective of the method of service used, the claim form is always deemed to be
served on the 2nd business day after it was posted (first class post only), or served personally, or
served through email or fax.

10. What is the deemed date of service for documents other than claim forms?
r. 6.26 - All documents other than claim form and particulars of claim is deemed to be
served according to the following rules:
i) For documents served using non-instantaneous method e.g. first class post it is deemed to be
served on the next business day after it was posted.
ii) If sent using instantaneous method such as personal delivery, fax or email:

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  if sent before 4.30 pm then it is deemed to be served on that day (if it is a business day).
 if sent after 4.30 pm then it is deemed to be served on the next business day.
Deemed date of service for other documents ( other than claim forms )

11. Irregular Service - Where the party who starts a claim using the wrong form, or relying on the
wrong statutory provision or serves at the wrong address, the C must file an application to the
court to rectify the mistake.

12. Renewal of Claim Forms –

Claim form must be served within 4 months from the date of issue, otherwise it will become
invalid. If however C fails to do so he may apply for an order to extend this period.
(a) If the application for extension is filed within the 4 month period: Court may grant the
application to extend the validity period of claim form if there are good reasons as to why the
claim form could not be served earlier. E.g. due to illness.
(b) If application made after expiry of 4 month period: Court will extend time only if,
 The court has failed to serve the claim form OR
 Claimant has taken all reasonable steps to serve the claim form but has been unable to do
so,
 In either case, C has acted promptly in making the application.
Procedure for seeking an order for extension-
 Made without notice, Without an oral hearing, Must be supported by written evidence

13. What steps should the D After being served with claim form/POC?
D should serve an acknowledgement of service within 14 days from the date of service of
the claim form and particulars of claim (r.10.3). D must also file and serve a defence within
28 days of service of the claim form (r.15.4).
Note: The period of time for the filing of the defence may be extended by agreement between the
parties by up to 28 days without having to obtain the permission of the court to do so.

14. What is the “Clear days rule”?

r.2.8 -  Period of time expressed as a number of days shall be calculated as clear days. (Periods
of Months/years do not have to be calculated as clear days).
Clear days means that, in calculating any period of time, the day on which the period begins is
not counted.

Examples:
1) C serves claim form/POC on 1st July (Friday). By what date must the defendant file
acknowledgement of service?
Claim form /POC is deemed to be served on 5th July (Tuesday) (according to 2nd business day
rule weekends will not be counted).
Time to acknowledge is 14 days from date of service (5th July)
However, 5th of July is not counted because the period began from that date.
counting 14 days from 5th July gives 19th July. So the latest date for acknowledgement is 19th July
until 12.00 midnight.

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 2) C files claim form on 3rd May 2018. What is the latest date for serving the claim form?
It should be served within 4 months from the date of issue (3rd May 2018)
Here clear days rule will not apply - so the last day for service is 3rd September 2018.

15. How can children and persons under disability issue proceedings?
Children ( Under 18) or protected parties (persons with mental impairment) must sue and be
sued by a ‘litigation friend’ – who is a person with no interest in the litigation adverse to that
child (normally a relative). Where a party does not have a litigation friend the court can appoint
one. The litigation friend must file and serve a Certificate of Suitability – Document which shows
that you consent to acting as the litigation friend. AND an Undertaking that he would pay any costs
which the child or protected party may be ordered to pay in relation to the proceedings.
Deceased parties – Generally, causes of action other than for defamation survive a claimant’s
death, and vest in the deceased’s personal representatives.

MCQ:
1. James was injured when he fell off his bike on the 30 June 2017. He suffered a broken leg and
other minor injuries as a result of the accident. The accident occurred when both his front and
rear tyres suffered a simultaneous burst. The tyres were manufactured by Walbe Ltd (‘Walbe’). At
the time of the accident James believed that what had happened was no more than an unfortunate
accident.
In January 2018 Walbe published a recall notice in respect of all tyres manufactured since April
2017 by them. Walbe had discovered that the rubber compound used in the production of the
tyres was defective in certain batches of tyres. The Claimant purchased his tyres from Walbe’s
own website in May 2017.
Walbe deny liability. They state that the tyres were not defective in the batch from which James
bought his tyres and that he must have run over something on the road to have caused a
simultaneous burst. Both parties instruct solicitors. Walbe’s solicitors notify James’ solicitors by
letter that they are instructed to accept service of the proceedings.
James issues proceedings against Walbe for damages for his injuries and other losses. The
damages claim is assessed to be in the region of £40,000. James requests his solicitors to serve the
issued proceedings immediately and by email.
Which of the following statements is correct?
[A] As Walbe are a company its solicitors cannot be instructed to accept service of the issued
proceedings. The issued proceeding must be served personally on Walbe at the company’s
registered office address.
[B] As Walbe’s solicitors have stated that they are instructed to accept service of the issued
proceedings they must be served on them. It does not matter which form of service is used.
[C] As Walbe’s solicitors have stated that they are instructed to accept service the issued
proceedings must be served on them however, if James wishes to serve the proceeding by email,
this can only be done if it has been stated by Walbe’s solicitors that the email address may be used
for service.
[D] James’ solicitors do not automatically have the right to serve the issued proceedings. They will
only be able to do so if the court has been unable to serve them.

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2. James’ solicitors send the issued proceedings to Walbe by first class post at 6pm on Friday 21
September 2018. By what date are the claim form and particulars of claim deemed to be served
and why?
[A] The claim form and particulars of claim are deemed served on the next business day after
completion of the relevant step. The deemed date of service is Monday 24 September 2018.
[B] The claim form and particulars of claim are deemed served on the second business day after
completion of the relevant step. The deemed date of service is Wednesday 26 September 2018.
[C] The claim form and particulars of claim are deemed served on the next business day after
completion of the relevant step. The deemed date of service is Tuesday 25 September 2018.
[D] The claim form and particulars of claim are deemed served on the second business day after
completion of the relevant step. The deemed date of service is Tuesday 25 September 2018.

3. Walbe’s solicitors contact you to advise that they will be unable to comply with the CPR deadline
for the service of the defence. They request a 7 day extension to that time period to do so. You
agree to their request.
What procedural steps will Walbe now have to take on the basis of the above agreement?
[A] Walbe will need to make an application to the court for its permission to extend the time
period for the service of the defence. However as the application is unopposed, Walbe will not
have to attend the hearing. The court will grant permission in its absence and make a consent
order.
[B] The period of time for the filing of the defence may be extended by agreement between the
parties by up to 14 days without having to obtain the permission of the court to do so. As the
parties have agreed an extension of time between them, James’ solicitors must notify the court in
writing of the agreement.
[C] Whether the parties agree between themselves an extension of time for the service of the
defence is immaterial. If Walbe are unable to file and serve its defence in the time period specified
within the CPR it will need to make an application to court for an extension of time for permission
to file and serve it outside of that period of time.
[D] The period of time for the filing of the defence may be extended by agreement between the
parties by up to 28 days without having to obtain the permission of the court to do so. As the
parties have agreed an extension of time between them, Walbe’s solicitors must notify the court in
writing of the agreement.

Answers:
1) Answer [C] – CPR 6.7 & 6A PD4 2) Answer [D] – CPR 6.14 & 7.5 3) Answer [D] – CPR 15.5

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