Commencing Proceedings PDF

Commencing Proceedings 69 CHAPTER 5 Commencing Proceedings 5.1 Choice of court 69 5.2 Court personnel 72 5....

Commencing Proceedings 69 CHAPTER 5 Commencing Proceedings 5.1 Choice of court 69 5.2 Court personnel 72 5.3 Issuing proceedings 72 5.4 Parties to the proceedings 77 5.5 Service of the claim form 82 5.6 Extending time for service of the claim form 88 5.7 Service of documents other than the claim form 89 5.8 Service of particulars of claim 90 LEARNING OUTCOMES After reading this chapter you will have learned: when to commence proceedings in the High Court or County Court how to draft a claim form what a statement of value is the role of a statement of truth who can act as a litigation friend for a child how to obtain the court’s approval of a settlement made on behalf of a child how to describe different parties in the title to proceedings the different types of methods of service of documents where to serve proceedings when deemed service takes place the basic rules for serving proceedings outside England and Wales the consequences of late service of the claim form or particulars of claim. 5.1 CHOICE OF COURT 5.1.1 Value of claim Although the CPR 1998 apply to both the High Court and the County Court, in some cases a client will have a choice as to the court in which to start proceedings. The general rule is that the County Court has unlimited jurisdiction to hear all tort and contract cases. This is because PD 7A, para 2.1 provides that proceedings may not be started in the High Court unless the value of the claim is more than £100,000. So, if the value of the case is £100,000 or less, it must be started in the County Court. If the value of the case exceeds £100,000 then it can, if the client so wishes, be started in the High Court. In some cases, the High Court has exclusive jurisdiction, but those types of cases are beyond the scope of this book. In this chapter we make extensive reference to specified and unspecified claims for money. Full details of these terms are to be found at 2.7.1. 70 Civil Litigation 5.1.2 High Court or County Court Where a claimant has the choice of issuing in the High Court or County Court then, by PD 7A, para 2.4, a claim should be started in the High Court if by reason of: (1) the financial value of the claim and the amount in dispute, and/or (2) the complexity of the facts, legal issues, remedies or procedures involved, and/or (3) the importance of the outcome of the claim to the public in general, the claimant believes that the claim ought to be dealt with by a High Court judge. A claim should therefore be commenced in the High Court only if that is where the case should be tried. 5.1.3 The County Court 5.1.3.1 Specified claims Under PD 7A, para 5.1(1), if a claim started in the County Court under Part 7 is a claim only for an amount of money, whether specified or unspecified, and no special procedures are required by the CPR 1998 or a practice direction, the claim form N1 must be sent to the Civil National Business Centre, St Katharine’s House, 21-27 St Katharine’s Street, Northampton, NN1 2LH, DX 702885 Northampton 7. If subsequently a hearing is required, the claim is transferred to the defendant’s home County Court (see 9.5) or the claimant’s preferred hearing centre specified in the claim form (see 5.1.5). Can any specified claims be issued online? Yes, individuals, businesses and government departments claiming a fixed amount of money of less than £100,000 can issue proceedings via the website Money Claim Online (MCOL). The claim must be for no more than one claimant and against no more than two defendants who have a service address within the jurisdiction of England and Wales. All MCOL claims are issued in the Civil National Business Centre and proceed there unless they are sent to a County Court hearing centre (see generally PD 7C). £100,000High Court For all other County Court claims, including those under Part 8 (see 8.4) or for an interim remedy (see 10.6), the claimant can issue proceedings in any of the County Court hearing centres situated throughout England and Wales. In these circumstances most claimants will choose to start proceedings in the court closest to their home or business. See generally PD 2C. 5.1.4 The High Court The High Court has three divisions, namely: (a) the King’s Bench Division; (b) the Chancery Division; and (c) the Family Division. If the claimant is claiming damages for breach of contract or tort, the claim should be commenced in the King’s Bench Division. The King’s Bench Division produces the King’s Bench Guide (a guide to the working practices of the King’s Bench Division within the Royal Courts of Justice). In 2017, the Business and Property Courts (B&PCs) were established as a single umbrella for specialist civil jurisdictions in England and Wales. Within the B&PCs, there are specialist courts and lists, eg the Admiralty Court and Commercial Court come under the King’s Bench Division, and the Companies List and Intellectual Property List under the Chancery Division. In London, these specialist civil jurisdictions operate together in the Rolls Building on Fetter  Commencing Proceedings 71 Lane, forming the largest specialist centre for financial, business and property litigation in the world. B&PCs have also been established in the seven main centres outside London where specialist business similar to that in the Rolls Building is undertaken, namely Birmingham, Bristol, Cardiff, Leeds, Liverpool, Newcastle and Manchester. The main centre for the B&PCs in Wales is in Cardiff.b Cases that are likely to be suitable for hearing in the Commercial Court include complex cases arising out of business disputes, both national and international, encompassing all aspects of commercial disputes, in the fields of banking and finance, shipping, insurance and reinsurance and commodities. The Commercial Court produces a Commercial Court Guide, which gives guidance on the day-to-day practice in that court. See also CPR 1998, Part 58. The Chancery Division of the High Court deals with such matters as trusts, contentious probate business, partnership claims, disputes about land, and landlord and tenant disputes. A claim should be commenced in the Chancery Division if the claimant is claiming an equitable remedy such as specific performance, or if it is an intellectual property claim, such as copyright or passing-off. The Family Division deals with High Court family matters, which are outside the scope of this book. A claimant commencing proceedings in the High Court normally has a choice of issuing in any of the District Registries of the High Court, which are usually situated in the same building as the regional County Court, or the Central Office of the High Court in London. Most claimants will choose to start proceedings in the court closest to their home or business. 5.1.5 Transfer between courts Part 30 of the CPR 1998 deals with the powers of the High Court and County Court to send matters from one court to another. There are provisions for the sending of claims to the preferred hearing centre specified by the claimant in their claim form (see 6.5.1, 6.6.2, 9.5 and 10.5.1.6). There are also provisions for sending to the defendant’s home court in certain limited circumstances (see 9.5). CASE STUDY: CHOICE OF COURT Negotiations between the parties’ solicitors fail. Experts disagree over liability. Whilst some items of quantum are agreed, subject to liability, Mr Templar’s expert does not agree that Mr and Mrs Simpson’s extension needs demolishing and rebuilding. He is of the opinion that it can be repaired. Court proceedings could be started by either party. Where would these be started, and why? We know from the receipts and estimates that Mr and Mrs Simpson’s claim is in the region of £185,000. This is well in excess of the minimum amount of £100,000 required to commence a claim in the High Court (PD 7A, para 2.1), but are the criteria in PD 7A, para 2.4 satisfied? The case is not factually complicated, but there appear to be some complex expert issues. The case has no general importance to the public. Arguably the value of the claim is sufficient to satisfy para 2.4(1) and justify issuing the proceedings in the High Court. There is no good reason why the case should be tried in the Central Office and so proceedings should be started in the local District Registry where this will be more convenient for the parties and solicitors. Mr Templar’s documents reveal a claim of around £70,000. As this is below the minimum amount of £100,000 for High Court proceedings, he would have to commence any claim in the County Court at the Civil National Business Centre (see 5.1.3). 72 Civil Litigation 5.2 COURT PERSONNEL The great bulk of both County Court and High Court work is dealt with by district judges and, for matters proceeding in the Central Office in London, masters. These deal with the majority of interim applications (see Chapter 10) and also have jurisdiction to hear any claim which has been allocated to the small claims track, fast track or intermediate track; multi-track trials are heard by circuit judges in the County Court and by High Court judges in the High Court (see Chapter 9). 5.3 ISSUING PROCEEDINGS A party who wishes to start court proceedings must complete a claim form N1 in the prescribed way (PD 7A, para 3.1), which should either be sent to the appropriate court office or taken there where the court has appropriate facilities (see 5.1). Proceedings are commenced when the court ‘issues’ the claim form by sealing it with the court seal (although for limitation purposes, the relevant date is the date when the court receives the claim form: see 2.5.2). By r 2.6(1) the court must seal the claim form on issuing it by placing the seal on the document by hand, by printing or electronically. A copy of a claim form appears at Appendix A(1). 5.3.1 Completing the claim form In addition to the points set out here, the Court Service provides detailed guidance notes on the completion of the claim form which appear at Appendix A(1). 5.3.1.1 Claimant and defendant details The person who makes the claim is described as the claimant, and the person against whom the claim is made is the defendant. Practice Direction 16, para 2 provides as follows: 2.1 The claim form must include an address (including the postcode) at which the claimant lives or carries on business, even if the claimant’s address for service is the business address of their solicitor. 2.2 Where the defendant is an individual, the claimant should (if he is able to do so) include in the claim form an address (including the postcode) at which the defendant lives or carries on business, even if the defendant’s solicitors have agreed to accept service on the defendant’s behalf. 2.3 If the claim form does not show a full address, including postcode, for all parties, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so. The court will notify the claimant. 2.4 The claim form must be headed with the title of the proceedings, including the full name of each party, where it is known – (1) for an individual, the full name and title by which the person is known; (2) for an individual carrying on business other than in their own name, the full name of the individual, the title by which they are known, and the full trading name (for example, Jane Smith ‘trading as’ or ‘T/as’ ‘JS Autos’); (3) for a partnership (other than a limited liability partnership (LLP))— (a) where partners are sued in the name of the partnership, the full name by which the partnership is known, together with the words ‘(a Firm)’; or (b) where partners are sued as individuals, the full name of each partner and the title by which each is known; (4) for a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, limited, LLP, etc), if any; (5) for any other company or corporation, the full name by which it is known, including suffix where appropriate.  Commencing Proceedings 73 It is important to note the effect of para 2.3 above. Whilst the court will issue a claim form that lacks service address details, it will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so. If the claimant cannot supply full service address details, an application to dispense with such should be made when filing the claim form. As to para 2.4 above, in what circumstances can a claimant seek anonymity? CPR 1998, r 39.2(4) provides that the court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness (see further XXX v Camden London Borough Council EWCA Civ 1468). There is no authority that proceedings can be issued under a pseudonym. That was applied for in SMO (A Child) v TikTok Inc EWHC 3589 (QB) but the court eventually made an anonymity order. Where one of the parties is not an individual over the age of 18, or is not suing or being sued in their personal capacity, special considerations may apply (see 5.4). The Court Service guidance notes (see 5.3.1) set out how these should be reflected in the claim form. 5.3.1.2 Brief details of claim The claim form must contain a concise statement of the nature of the claim and specify the remedy that the claimant is seeking (see r 16.2(1)(a), (b) and the notes on completing the claim form). In Travis Perkins Trading Co Ltd v Caerphilly CBC EWHC 1498 (TCC), Akenhead J stated at para 22: (a) Only ‘brief ’ details are required to describe ‘the nature of the claim’, although the remedy sought needs to be spelt out; a statement of value (not more than or more than £X) needs to be provided. (b) Whilst it is open to a claimant to be specific and restrictive in what it, he or she seeks to claim by way of the ‘Brief Details of Claim’, it is not necessary. (c) The Court should have regard to the wording overall to determine what is covered by the wording of the Brief Details to see whether and to what extent the rule has been fulfilled. The Court should not be prescriptive about what is required in terms of the words used by the claimant; all that is prescriptive is in the wording of the rule. 5.3.1.3 Value/the amount claimed Rule 16.2(1)(d) requires that where the claimant’s only claim is for a specified sum, the claim form must contain a statement of the interest accrued on that sum (see also 2.7 and 7.2.1.5). Rule 16.3(2) requires that if the claim is for money, the claim form must either state the amount claimed or, if the claim is for an unspecified amount of money, whether or not the claimant expects to recover: (a) not more than £10,000; or (b) more than £10,000 but not more than £25,000; or (c) more than £25,000 but not more than £100,000; or (d) more than £100,000; or (e) that the claimant cannot say how much they expect to recover. This information assists the court in allocating the claim to the multi-track, intermediate track, fast track or small claims track, as appropriate (see 9.5). The information will also form the basis on which the fee payable to issue the claim is calculated (see 5.3.1.5). 5.3.1.4 High Court cases Practice Direction 7A, para 3.4 provides that if a claim for an unspecified sum of money is started in the High Court, the claim form must: 74 Civil Litigation (a) state that the claimant expects to recover more than £100,000; or (b) state that some enactment provides that the claim may only be commenced in the High Court and specify that enactment; or (c) state that the claim is to be in one of the specialist High Court lists (see CPR 1998, Parts 49 and 58–62) and specify that list. The Notes for Claimant on completing the claim form (see Appendix A(1)) suggest a form of words such as ‘I wish my claim to issue in the High Court because’, followed by one of the above grounds (eg, ‘I expect to recover more than £100,000’). Arguably, the Notes are aimed at litigants in person, and most solicitors, when relying on the value exceeding £100,000 as giving the High Court jurisdiction, will simply put ‘The Claimant expects to recover more than £100,000’. 5.3.1.5 The court fee The claimant is obliged to pay a fee on issue of the claim form, based on the value of the claim. The amount of the fee should be stated on the front of the form. Details of court fees are contained in the leaflet EX50 – Civil and Family Court Fees, available at. Note that where the claim is for a specified sum, the amount on which the issue fee is calculated is the total amount of the claim and the accrued interest. The figures for the specified sum and the accrued interest should be set out on the front page of the claim form under the heading ‘Value’ (see 5.3.1.3). 5.3.1.6 Solicitor’s costs If the claim is for a specified amount of money, and was issued by a solicitor, the form should also include a figure for solicitor’s costs. These are fixed costs payable by the defendant, in addition to the court fee, should the defendant admit the claim. Fixed costs are the amount of costs recoverable in the circumstances provided for in Part 45 of the CPR 1998 (see Chapter 14). If the claim is for an unspecified amount of money, this box should be completed ‘to be assessed’ (meaning that the court will in due course determine the amount of costs payable should the defendant have to pay the claimant’s costs: see generally 14.3). 5.3.1.7 Issues under the Human Rights Act 1998 The claimant is obliged to state whether the claim does or will include any issues under the Human Rights Act 1998. 5.3.1.8 The particulars of claim The details of the claimant’s claim, known as the particulars of claim, must be set out either in the claim form itself, or in a separate document that is served either with the claim form or within 14 days of service of the claim form. Care is needed in the drafting of the particulars of claim, and this issue is considered in Chapterb7. By rule 7.4(3), if the claimant serves particulars of claim, then unless a copy of those particulars has already been filed at the court, the claimant must, within seven days of service on the defendant, file a copy of the particulars at the court. 5.3.2 The statement of truth The CPR 1998 require that various documents, including the claim form, are verified by a statement of truth (see CPR 1998, Part 22). If the particulars of claim are served separately, they must also be so verified and the statement of truth in the claim form should be amended to read, ‘the facts stated in this claim form are true’.  Commencing Proceedings 75 Who can sign the statement of truth in a statement of case? Rule 22.1(6)(a) gives this answer: (i) the party or their litigation friend [see 5.4.1], or (ii) the legal representative on behalf of the party or litigation friend. So how should you draft a statement of truth in a statement of case? Practice Direction 22, para 2.1 states as follows: [I believe] [The (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. [I understand] [The (claimant or as may be) understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. By PD 22, para 2.7 the statement of truth must be dated with the date on which it was signed. 5.3.2.1 Signed by the client An individual signing as a party or on behalf of a party, eg a partner or company director, should express their own personal belief and sign, ‘I believe …’. Who can sign on behalf of a partnership? Practice Direction 22, para 3.3 states: Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are: (1) any of the partners, or (2) a person having the control or management of the partnership business. Who can sign on behalf of a company? Practice Direction 22, para 3.1 requires that it must be signed by a person holding a senior position in the company, and PD 6A, para 6.2(1) states that such a person may be a director, the treasurer, secretary, chief executive, manager or other officer of the company. You should note that some practitioners draft a statement of truth for a company officer to sign as ‘The [claimant or defendant etc] believes’, rather than as ‘I believe’. There is nothing in the CPR indicating that either version is right or wrong. Whatever way it is drafted, the individual signing on behalf of the company is assuming personal responsibility. If they do not have an honest belief in the truth of the contents of the document, they could be prosecuted for contempt of court. Where an individual signs on behalf of a party, it is best practice and follows the model set out on various court forms to state that the person has authority to do so, ie by adding the wording: ‘I am duly authorised by the [party] to sign this statement.’ 5.3.2.2 Signed by a solicitor Where a solicitor signs on behalf of the client, they should sign ‘The [party] believes …’. Practice Direction 22, para 3.6 clarifies that the statement refers to the client’s belief and not the solicitor’s belief. In addition the solicitor must state the capacity in which they sign and the name of their firm, where appropriate. However, by PD 22, para 3.9, note that the solicitor must sign in their own name and not that of their firm. 76 Civil Litigation EXAMPLE The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Claimant to sign this statement. Dated: Signed: LAWRENCE HODGES Lawrence Hodges, Assistant Solicitor with Singleton Trumper & Co, solicitors acting for the Claimant in these proceedings Where a legal representative signs a statement of truth, para 3.7 of PD 22 states that this will be taken as their statement: (1) that the client on whose behalf they have signed had authorised them to do so; (2) that before signing they had explained to the client (through an interpreter where necessary) that in signing the statement of truth they would be confirming the client’s belief that the facts stated in the document were true; and (3) that before signing they had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts. The consequences referred to in para 3.7(3) above are that proceedings for contempt of court may be brought against the client: see rb32.14. 5.3.2.3 What if the statement is omitted? By r 22.2, if a statement of case (which includes a claim form) is not verified by a statement of truth, it remains effective unless the court strikes it out, which the court may do on its own initiative or on the application of another party. If the statement of case is not struck out, the claimant will not, however, be allowed to rely on its contents as evidence (for example, on an interim application: see Chapter 10). CASE STUDY: COMPLETING THE CLAIM FORM Let us briefly consider how the claim form would be completed in the case study. 1. Mr and Mrs Simpson start proceedings. Their solicitors have decided to issue the claim in the nearest District Registry of the High Court (see 5.1 above). The heading will therefore be as follows: In the High Court of Justice King’s Bench Division Weyford District Registry The court will assign a claim number when the claim form is issued. This information must be included on the claim form and all subsequent statements of case (PD 7A, para 4.1(1)). 2. The Parties need to be described accurately. Here there are two claimants, both of whom are individuals. Practice Direction 16, para 2.4(1) requires that their full names and title should be given as follows: Mr William Ulysses Simpson (1) Mrs Rupinder Simpson (2) In addition their full address, including a postcode, should be stated (PD 16, para 2.1).  Commencing Proceedings 77 The same information is required for the defendant. His name and full address will also appear in the box in the bottom left-hand corner of the claim form. 3. Brief details of claim and remedy sought. This might read: ‘The Claimants claim damages arising out of the Defendant’s negligent driving on 2 August 2023.’ 4. Value. This information will help the court when managing the case. As the claim is for damages (an unspecified claim) exceeding £100,000, it should state: ‘The Claimants expect to recover more than £100,000.’ 5. The court fee payable on issue is based on the value of the claim. There is no need for a figure to be inserted in the ‘Solicitor’s costs’ box as this is a High Court claim for an unspecified amount of money (a damages claim here) and any costs awarded will be assessed by the court. 6. Whilst particulars of claim could be inserted on the form, these will be prepared separately. If they are to be served with the claim form the words ‘to follow’ should be deleted. 7. A statement of truth will be required as the claim form is a statement of case and r 22.1(1)(a) requires that all statements of case should be verified by a statement of truth. 8. An address for service within the jurisdiction must be given. As solicitors act for Mr and Mrs Simpson and are instructed to accept service of court documents on their behalf, the name, address and reference details of the firm should be given. 5.4 PARTIES TO THE PROCEEDINGS If the claimant and defendant are both individuals of full age, suing or being sued in their personal capacity, there are no special considerations. As much of the full, unabbreviated name of the individual party should be stated as possible (including first, middle and last names, and the title by which the party is known, eg Mr Thomas Patrick Clark, Dr Laurie Chris Brown, Professor Mary Banister, etc). In other cases, there may be special considerations because of the nature of the party concerned, for example in cases where the claimant or defendant is a child, a protected party, a sole trader, a partnership or a limited company. These special rules are considered below. 5.4.1 Children and protected parties A child is a person aged under 18, and a protected party is a person who is incapable of managing and administering their own affairs (including court proceedings) because of a mental disorder, as defined by the Mental Capacity Act 2005. Part 21 of the CPR 1998 contains special provisions relating to these types of litigant. 5.4.1.1 The requirement for a ‘litigation friend’ The Rules require a protected party to have a litigation friend to conduct proceedings, whether as claimant or defendant, on their behalf. A child must also have a litigation friend to conduct proceedings on their behalf, unless the court orders otherwise. In the case of protected parties, the litigation friend will usually be a person authorised under the 2005 Act to conduct legal proceedings in the name of a protected party; and in the case of a child, the litigation friend will normally be a parent or guardian. If a solicitor is unsure whether or not their client falls within the definition of a protected party, the solicitor may seek an order of the court directing that the Official Solicitor consider 78 Civil Litigation the evidence, appoint a medical expert and appear at the hearing: see Lindsay v Wood EWHC 2895 (QB). A solicitor’s retainer will not necessarily automatically terminate where a client loses mental capacity: Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust EWCA Civ 18. In relation to proceedings against a child or protected party, a person may not, without permission of the court, make an application against a child or protected party before proceedings have started, or take any step in the proceedings except: (a) issuing and serving a claim form; or (b) applying for the appointment of a litigation friend under r 21.6. 5.4.1.2 Steps to be taken by a litigation friend A person authorised under the 2005 Act to act as a litigation friend on behalf of a protected party must file an official copy of the document which is their authority to act. Otherwise, a litigation friend acting on behalf of a protected party or child must file a certificate of suitability. If acting on behalf of a claimant, this must be done when making the claim; and if acting on behalf of a defendant, it must be done when first taking a step in the proceedings. The certificate of suitability must state that the proposed litigation friend: (a) consents to act; (b) believes the party to be a child or protected party (with reasons and medical evidence); (c) can fairly and competently conduct proceedings on behalf of the party; (d) has no adverse interest; (e) if acting as a litigation friend for a claimant, undertakes to pay any costs which the claimant may be ordered to pay in the proceedings. Note that a counterclaim (see Chapter 8) is treated like a claim for the purposes of the costs undertakings. The litigation friend must serve the certificate of suitability on every person on whom the claim form should be served and must then file a certificate of service when filing the certificate of suitability. 5.4.1.3 Cessation of appointment of a litigation friend In relation to a child, the appointment of a litigation friend ceases when the child becomes 18. The appointment of a litigation friend for a protected party does not cease when the party ceases to be a protected party, but it continues until the appointment is ended by a court order sought by the former protected party, the litigation friend, or any party. By CPR 1998, r 21.7(1), the court may direct that a person may not act as a litigation friend, terminate a litigation friend’s appointment and appoint a new litigation friend in substitution for an existing one. See, for example, X v Y 11 WLUK 6. 5.4.1.4 Settlement of cases brought by or against a child or protected party Special provisions apply where a case involving a child or protected party is settled. Such a settlement is not valid unless it has been approved by the court. Before the court approves a settlement, it will need to know: (a) whether and to what extent the defendant admits liability; (b) the age and occupation (if any) of the child or protected party; (c) that the litigation friend approves of the proposed settlement. The application to the court must, in most cases, be supported by a legal opinion on the merits of the settlement and the instructions on which it was based. Although the application will be heard in private, the formal approval of the settlement will usually be given publicly in open court – see Beathem v Carlisle Hospitals NHS Trust (1999) The Times, 20 May.  Commencing Proceedings 79 If a claim by or against a child or protected party is settled before proceedings are begun, and proceedings are issued solely to obtain the court’s approval of the settlement, the claim must include a request to the court for approval of the settlement and must be made under Part 8 of the CPR 1998 (see 8.4). If money is recovered by or on behalf of or for the benefit of a child or protected party, the money should be dealt with in accordance with the directions of the court. The court will usually direct that the money be paid into the High Court for investment. In relation to a child, the money will be paid out when the child becomes 18. A consent judgment involving a protected party that is reached without the appointment of a litigation friend and the approval of the court is invalid. Is that so even where the protected party’s lack of capacity is unknown to everyone acting in the litigation at the time of the compromise? Yes – see Dunhill (a protected party by her litigation friend Paul Tasker) v Burgin UKSC 18. 5.4.2 Partnerships 5.4.2.1 Where a partnership is the claimant Partnerships must normally sue in the name of the firm, rather than by naming individual partners. Pursuant to PD 7A, para 7.3, it is usually easier and more convenient to use the name under which the partnership carried on business at the time the cause of action accrued, eg ‘ABC & Co (a firm)’. 5.4.2.2 Where a partnership is the defendant Partnerships must normally be sued in the name of the firm rather than in the names of the individual partners. Practice Direction 7A, para 7.3 provides that where a partnership has a name, unless it is inappropriate to do so, claims must be brought against the name under which that partnership carried on business at the time the cause of action accrued. In practice, it is usually simpler and more efficient to sue a partnership in the name of the firm, especially as service on the firm can be effected by serving any one of the partners, or by serving the firm at its principal place of business (see 5.5). The advantage of suing partners in their firm’s name is the ability to enforce the judgment against partnership property, but the disadvantage is the need to seek the court’s permission to enforce a judgment against persons not identified in the proceedings as partners (see Kommalage v Sayanthakumar EWCA Civ 1832 and 15.1.1). 5.4.3 Sole traders 5.4.3.1 Where a sole trader is the claimant It is generally accepted practice that sole traders should sue in their own name and not in any trading or business name. However, there is no objection to adding any trading name, eg ‘David Fadzanai Haruperi Kapaya trading as David’s Dazzling Designs’. 5.4.3.2 Where a sole trader is the defendant By PD 16, para 2.4(2), sole traders carrying on business within the jurisdiction and under a name other than their own can be sued in that name. If the trader is sued under their trade name, they will be referred to in the heading to the claim as, for example, ‘Anthony Tucker T/A Marble Designs’. Note that T/A is an acceptable abbreviation of ‘trading as’. If the claimant does not know the name of the sole trader, the claimant may sue naming the defendant under their business name, eg ‘Welcome Homes (a trading name)’. 80 Civil Litigation 5.4.4 Limited companies 5.4.4.1 Where a limited company is the claimant A company can sue under its corporate name. 5.4.4.2 Where a limited company is the defendant A company can be sued under its corporate name. Before commencing proceedings against a company, the claimant should carry out a company search to confirm the corporate status and continued existence of the proposed defendant company, to confirm the correct name of the company and to ascertain the registered address of the company if it is intended to serve the company at its registered office. 5.4.5 Unnamed parties Are there any circumstances in which it is permissible to sue an unnamed defendant? Yes, but these are very limited held the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd UKSC 6. Giving the unanimous ruling of the court, Lord Sumption said: The general rule remains that proceedings may not be brought against unnamed parties. … The only express provision made for proceedings against an unnamed defendant, other than representative actions, is CPR 55.3(4), which permits a claim for possession of property to be brought against trespassers whose names are unknown. English judges have allowed some exceptions. They have permitted representative actions where the representative can be named but some or all of the class cannot. They have allowed actions and orders against unnamed wrongdoers where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates. This technique has been used, for example, in actions against copyright pirates: see EMI Records Ltd v Kudhail FSR 35. But the possibility of a much wider jurisdiction was first opened up by the decision of Sir Andrew Morritt V-C in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd 1 WLR 1633. The claimant in that case was the publisher of the Harry Potter novels. Copies of the latest book in the series had been stolen from the printers before publication and offered to the press by unnamed persons. An injunction was granted in proceedings against ‘the person or persons who have offered the publishers of “The Sun”, the “Daily Mail” and the “Daily Mirror” newspapers a copy of the book Harry Potter and the Order of the Phoenix by J K Rowling or any part thereof and the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the claimants.’ The real object of the injunction was to deter newspapers minded to publish parts of the text, who would expose themselves to proceedings for contempt of court by dealing with the thieves with notice of the order … The Civil Procedure Rules neither expressly authorise nor expressly prohibit exceptions to the general rule that actions against unnamed parties are permissible only against trespassers. … The critical question is what, as a matter of law, is the basis of the court’s jurisdiction over parties, and in what (if any) circumstances can jurisdiction be exercised on that basis against persons who cannot be named. In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply. The first category comprises anonymous defendants who are identifiable but whose names are unknown. Squatters occupying a property are, for example, identifiable by their location, although they cannot be named. The second category comprises defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified. The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not. 5.4.6 Addition and substitution of parties On occasions, it will be necessary for another party to be added to a claim or for one party to be replaced by another. For example, A may take proceedings against B for damages for  Commencing Proceedings 81 negligence, and subsequently may discover that C was also negligent. A may then want to add C to the proceedings as a second defendant. Or A may sue B (an individual) for a debt, but then discovers that A’s contract was not with B trading on B’s own account but with a company controlled by B. A will want to substitute the company for B as defendant. As stated in r 19.4(2) of the CPR 1998, an application for permission to remove, add or substitute a party may be made by: (a) an existing party; or (b) a person who wishes to become a party. The application may be made without notice and must be supported by evidence. Nobody may be added or substituted as a claimant unless they have given their consent in writing and that consent has been filed with the court. Rule 19.2 states: (2) The court may order a person to be added as a new party if— (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings. (4) The court may order a new party to be substituted for an existing one if— (a) the existing party’s interest or liability has passed to the new party; and (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings. Special provisions apply where parties are to be added or substituted after the end of the relevant limitation period. Rule 19.6 states: (2) The court may add or substitute a party only if— (a) the relevant limitation period was current when the proceedings were started; and (b) the addition or substitution is necessary. (3) The addition or substitution of a party is necessary only if the court is satisfied that— (a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; (b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or (c) the original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party. Part 19 also contains provisions enabling the Crown to be joined as a party to proceedings in which the court may wish to make a declaration of incompatibility in accordance with s 4 of the Human Rights Act 1998. 5.4.7 Professional conduct A solicitor warrants their authority to take any positive step in court proceedings, for example to issue a claim form or serve a defence on behalf of the client. If a solicitor conducts proceedings without that authority, they will usually be personally liable for the costs incurred: see, for example, Warner v Masefield EWHC 1129. Note that if a solicitor receives instructions from someone other than the client, or by only one client on behalf of others in a joint matter, the solicitor should not proceed without checking that all clients agree with the instructions given. 82 Civil Litigation 5.5 SERVICE OF THE CLAIM FORM Once a claim form has been issued by the court (see 5.3), a sealed copy of it must be served on the other parties if the claimant is to pursue the claim (see Ideal Shopping Direct Ltd v Mastercard Incorporated EWCA Civ 14). The rules governing service of court documents are set out in Part 6 of the CPR 1998. 5.5.1 How to serve a claim form The following methods of service are permitted under r 6.3: (a) personal service in accordance with r 6.5; (b) first-class post, document exchange or other service which provides for delivery on the next business day, in accordance with PD 6A; (c) leaving the claim form at a place specified in r 6.7, 6.8, 6.9 or 6.10; (d) fax or other means of electronic communication in accordance with PD 6A; or (e) any other method authorised by the court under r 6.15. 5.5.1.1 Personal service Rule 6.5(3)(a) provides that a claim form is served personally on an individual by leaving it with that individual. So personal service is carried out by handing the claim form to the individual party whilst they are in the jurisdiction (ie England or Wales). If they will not take the claim form, they should be told what the document contains, and it should be left with them or near them (see Tseitline v Mikhelson EWHC 3065 (Comm)). What if the defendant is a partnership? According to rb6.5(3)(c), a document is served personally on a partnership (where partners are being sued in the name of their firm: see 5.4.2.2) by leaving it either with a partner, or with a person who, at the time of service, has the control or management of the partnership business at its principal place of business. A notice in Form N218 must also be served (see Appendix A(5)). Note that the principal place of business of a partnership is its main office, not a branch office. If you wish to serve a partner, PD 7A, para 8.2 allows you to obtain from the partnership a written statement of the names and last-known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued. By rb6.5(3)(b) and PD 6A, para 6.2, a document is served personally on a registered company (or other corporation) by leaving it with a person who holds a senior position within the company (or corporation), such as a director, the treasurer, secretary, chief executive, manager or other officer of the company. 5.5.1.2 First-class post or alternative ‘next working day’ delivery First-class post, or an alternative service that provides for delivery on the next working day, is permitted by PD 6A, para 3.1, but note that the Rules do not allow for service by second-class post or any other postal method, such as recorded delivery, unless the alternative method provides for delivery on the next working day (for example, Royal Mail’s ‘Signed For 1st Class’ service: see Diriye v Bojaj EWCA Civ 1400). See 5.5.3 for the address to be used where this method of service is adopted. 5.5.1.3 Leaving the claim form at a specified place Here the claim form is delivered by hand. See 5.5.3 below for the address to be used for this method of service. 5.5.1.4 Through a document exchange (DX) If a party has given a DX box number as its address for service then that can be used to serve the claim form (PD 6A, para 2.1). Alternatively, where a party or their solicitor’s headed notepaper includes a DX box number, that may be used unless the party or their solicitors have  Commencing Proceedings 83 indicated in writing that they are unwilling to be served by DX. If a solicitors’ firm has a DX number but does not want to accept service by that method, it normally includes next to the DX number something like ‘not for the purposes of service’. 5.5.1.5 By fax To serve a claim form by fax transmission, the party to be served or their solicitors must have indicated in writing a willingness to accept service by fax and also stated the fax number to which the claim form should be sent (PD 6A, para 4). A fax number on the party’s headed notepaper is not sufficient for this purpose. However, the fax number on a party’s solicitors’ headed notepaper is treated as agreement to service by this method on behalf of their client, unless the solicitors indicate otherwise in writing. If a solicitors’ firm has a fax number and does not want to accept service by that method, it normally includes next to the fax number something like ‘not for the purposes of service’. 5.5.1.6 By other electronic means such as e-mail A party to be served by e-mail or similar electronic method must have expressly indicated in writing the e-mail address or electronic identification to which it should be sent (PD 6A, para 4.1). An e-mail address on a party’s headed notepaper is not enough. If the party has instructed solicitors to accept service on its behalf, an e-mail address on the solicitors’ notepaper is not enough unless it states that the e-mail address may be used for service purposes. If a party indicates that service must be made at more than one e-mail address, PD 6A, para 4.1(3) provides that service is effective if made to any two of those addresses. Note that in addition, PD 6A, para 4.2 requires the party who wishes to serve the claim form by e-mail or other electronic means (but not fax) to clarify with the intended recipient whether there are any limitations to the recipient’s agreement to accept service by such means, including the format in which documents are to be sent and the maximum size of attachments that may be received. 5.5.1.7 Service on limited companies Where the party to be served is a limited company, sb1139(1) of the Companies Act 2006 provides an alternative method of service in addition to the CPR (see Murphy v Staples UK Limited 3 All ER 129). The Act provides that documents may be left at or posted to the registered office of the company. Whilst second-class post may be used when serving under sb1139(1), it is not recommended. 5.5.2 Who should be served? 5.5.2.1 General rule: any solicitor authorised to accept service Rule 6.7 provides that if a defendant has given in writing the business address of a solicitor within the jurisdiction as an address at which the defendant may be served with the claim form, or 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. If the parties’ solicitors have been in correspondence before litigation starts, it is usual for the claimant’s solicitors to ask the defendant’s solicitors if they are ‘authorised to accept service of proceedings’. Rather uniquely, in Smith v Probyn (2000) The Times, 29 March, the parties’ solicitors had corresponded prior to a claim form being issued but the defendant’s solicitors were never asked if they were authorised to accept service. Equally, the defendant’s solicitors had never intimated in any way that they were instructed to accept service. Just before the deadline to serve the claim form expired, the claimant’s solicitors sent it in the DX to the 84 Civil Litigation defendant’s solicitors. Morland J held that there had been no effective service of the claim form. If solicitors are instructed to accept service of only particular documents or types of proceedings, this should be made clear (see Motorola Solutions, Inc v Hytera Communications Corporation Ltd EWHC 2887 (Comm)). 5.5.2.2 Other provisions Where r 6.7 does not apply, the claimant must serve the defendant with the claim form by one of the permitted methods detailed at 5.5.1, unless any special provision concerning service of the claim form applies: see r 6.11 for any contractually agreed method of service; r 6.12 for service on the agent of an overseas principal; and r 6.15 for service by an alternative method or at an alternative place in accordance with a court order. Under r 6.15(2), the court has power to order that an alternate method of service already taken is good service. In Woodward v Phoenix Healthcare Distribution Ltd EWCA Civ 985, the Court refused to validate service of the claim form retrospectively. The claim form, particulars and response pack had been sent to the defendant’s solicitors shortly before the expiry of the deadline for service of the claim form. The defendant’s solicitors did not have instructions to accept service and they waited until after expiry of the deadline for service to notify the claimant’s solicitors that they were not authorised to accept service. The Court held that there was no duty requiring the solicitors to draw attention to the mistake made by the other party for which they were not responsible, nor were they in breach of r 1.3 in failing to warn of the defect in service before the validity of the claim form expired. (See also 1.1.2.1.) In Barton v Wright Hassall LLP UKSC 12, Mr Barton, a litigant in person, purported to serve the claim form on solicitors who had not indicated that they were instructed to accept service by email. By the time the error was discovered, and Mr Barton informed, the time for service of the claim form and the limitation period had expired. Mr Barton sought to rely on r 6.15(2), arguing that the claim had been brought to the attention of the defendant successfully. The court stated that whilst this was a necessary condition for an order under r 6.15, it was not sufficient to satisfy the ‘good reason’ test. The fact that Mr Barton was a litigant in person did not justify applying a lower standard of compliance with rules or orders of the court. See also Linklaters LLP v Mellish EWHC 177 (QB) and Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS EWCA Civ 109. In LSREF 3 Tiger Falkirk Ltd I SARL and another v Paragon Building Consultancy Ltd EWHC 2063 (TCC), the court held that service of a £10 million claim was defective and refused to retrospectively validate service under CPR, r 6.15, dispense with service under r 6.16 or grant relief under r 3.9 (see 9.4). The validity of the claim form had been extended three times by agreement. On the afternoon of the day on which validity expired, C’s solicitors telephoned D’s solicitors seeking a further extension. Having received no response from D’s solicitors, C’s solicitors emailed the proceedings to D’s solicitors later that evening. It was held that service was defective because: C’s solicitors had not asked D’s solicitors whether they were instructed to accept service of the claim form, and D’s solicitors had not notified C’s solicitors that they were. Accordingly, service did not comply with r 6.7(1)(b). Nothing in the dealings between the parties’ solicitors, their correspondence or the written extension agreement could be construed as amounting to D’s solicitors having implied authority to accept service. Fraser J refused to retrospectively validate service (r 6.15) or dispense with service (r 6.16). C had not taken reasonable steps to effect service in accordance with the Rules, and granting relief would substantially prejudice D through loss of a limitation defence. Consideration of r 3.9 was impermissible, because the relevant routes were r 6.15 and r 6.16.  Commencing Proceedings 85 5.5.3 Where to serve? By r 6.9, where no solicitor is authorised to accept service and the defendant has not given any address for service, the claim form must be served on the defendant at the place shown in the following table: Nature of defendant to be served Place of service 1. Individual Usual or last known residence. 2. Individual being sued in the name of a Usual or last known residence of the business individual; or principal or last known place of business. 3. Individual being sued in the business name Usual or last known residence of the of a partnership individual; or principal or last known place of business of the partnership. 4. Limited liability partnership Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim. 5. Corporation (other than a company) Principal office of the corporation; or any incorporated in England and Wales place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim. 6. Company registered in England and Wales Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim. 7. Any other company or corporation Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction. What if a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the above table is an address at which the defendant no longer resides or carries on business? Rule 6.9(3) provides that the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’). If the claimant ascertains the defendant’s current address, the claim form must be served at that address; but if they are unable to do so, the claimant must consider whether there is an alternative place where or an alternative method by which service may be effected and make an application to the court accordingly. In exceptional circumstances the court can dispense with service of the claim form under r 6.16(1). In Lonestar Communications Corp LLC v Kaye & Ors EWHC 3008 (Comm), there were five defendants. Three were served but attempts to serve the second defendant in Israel under the Hague Convention had not been successful. The claimant then made various attempts via social media and there was evidence that accounts to which messages had been sent had been closed. The court found that a proper attempt had been made to serve the second defendant under the Hague Convention and the defendant was aware of the proceedings and was taking active steps to evade service. It was fair, just and appropriate to make an order dispensing with service of the claim form. 86 Civil Litigation 5.5.4 When to serve? By r 7.5(1), a claimant who wishes to serve a claim form in the jurisdiction must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Method of service Step required Personal service Completing the relevant step required by the rules (see 5.5.1.1) First-class post, DX or other service which Posting, leaving with, delivering to or provides for delivery on the next business collection by the relevant service provider day (see 5.5.1.2 and 5.5.1.4) Delivery of the document to or leaving it at the Delivering to or leaving the document at the relevant place relevant place (see 5.5.1.3 and 5.5.3) Electronic method Sending the e-mail or other electronic transmission (see 5.5.1.5 and 5.5.1.6). 5.5.5 When is the claim form deemed to be served? The potential problem with any method of service, apart from personal service, is that the claimant cannot know precisely when the defendant receives the claim form. A claimant needs to know when service has occurred in order to take the next step in the proceedings. So, if the claim form was served marked ‘particulars of claim to follow’, the claimant must serve those next (see 5.8). If particulars of claim have been served then the claimant must allow the defendant the requisite number of days to respond and can apply for default judgment if the defendant fails to respond (see 6.3 and 6.4). Rule 6.14 introduces a simple, indisputable presumption that the claim form is deemed to have been served on the second business day after the step set out in 5.5.4 has occurred. Note that by r 6.2(b) a ‘business day’ here means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day. EXAMPLES 1. An individual defendant is personally served with a claim form on a Monday. It is deemed to be served on the Wednesday, provided Tuesday and Wednesday are business days. 2. A firm of solicitors authorised to accept service by e-mail is served with the claim form by e-mail that is transmitted on a Saturday. Sunday will not count. Assume the Monday is a bank holiday and so does not count either. If Tuesday and Wednesday are business days, then deemed service of the claim form is on the Wednesday. 5.5.6 Service by the court or the claimant? The claim form will usually be served by the court, and the court will choose the appropriate method of service, which will normally be by first-class post. The claimant must provide the court with enough copies for the court to serve the claim form on all other parties, together with a copy for the court’s file. Rule 6.4(1) provides that the court will not effect service where: (a) a rule or Practice Direction provides that the claimant must serve the claim form; or (b) the claimant notifies the court that they want to serve it; or (c) the court orders or directs otherwise. Note that r 6.18 provides that where the court serves the claim form by post but the claim form is returned to the court, the court will send notification to the claimant that the claim form has  Commencing Proceedings 87 been returned. However, the claim form will be deemed to be served unless the address for the defendant on the claim form is not the relevant address for the purpose of the Rules. This is rather an odd provision, but its purpose is to try to bring some certainty and finality to service of the claim form. So, if the address was that of a firm of solicitors authorised to accept service, the service is deemed to have occurred. However, it would obviously make sense to check that the correct address was used, and perhaps to telephone the solicitors for an explanation and agree a new method, such as fax or e-mail. Where service was to an address listed in the table at 5.5.3 the service is again deemed to have occurred. However, we take the view that the claimant should normally treat this as a situation where they have reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table is an address at which the defendant no longer resides or carries on business. Therefore, the claimant should take reasonable steps to ascertain the current address of the defendant. Where the claim form is served by the claimant, under r 6.17(2) they must file a certificate of service within 21 days of service of the particulars of claim (unless all the defendants have filed acknowledgements of service within that period), and may not obtain judgment in default (see 5.6) unless they have filed the certificate of service. A copy is set out at Appendix A(4). 5.5.7 Service out of the jurisdiction finished here 5.5.7.1 Cases governed by the 2005 Hague Convention or contract No special permission is required to serve proceedings outside of England and Wales, provided that for each claim made against the defendant to be served and included in the claim form: (a) the court has power to determine that claim under the 2005 Hague Convention and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention; or (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim. As to (a), reference to the 2005 Hague Convention means the Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters signed at the Hague on 15 November 1965. It includes all European Union countries as well as Mexico, Singapore and Montenegro. There are special provisions as to the methods of service that are acceptable where the claim form is to be served outside the jurisdiction (see rr 6.40–6.44). 5.5.7.2 All other cases The claimant must otherwise obtain permission to serve proceedings out of the jurisdiction. There are three matters to be addressed. First, the claimant must establish a good arguable case that the claim falls within one or more of the grounds for obtaining permission as set out in PD 6B, para 3.1. Examples of the grounds include (6)(a) where the claim is brought to enforce a contract that is governed by English law, or (7) where the breach of contract occurred in England and Wales, or (9)(a) where a claim is made in tort for damage sustained within the jurisdiction, or (11) where the subject matter of the claim relates wholly or principally to property within the jurisdiction. Secondly, the claimant must show that there is a serious issue to be tried in the proposed action. This means a case which has a real as opposed to fanciful prospect of success (Kawasaki Kisen Kaisha Ltd v James Kemball Ltd EWCA Civ 33). Thirdly, the claimant must demonstrate that England is clearly and distinctly the appropriate forum. The application must be supported by evidence and will be made without notice. 88 Civil Litigation EXAMPLE In Tulip Trading Ltd v Bitcoin Association for BSV EWCA Civ 83, the issue was whether the defendant developers who look after bitcoin owed fiduciary duties to the claimant owners of that cryptocurrency. None of the defendants were in the jurisdiction. There was no dispute that the grounds in PD 6B, para 3.1(9)(a) and (11) were established. In terms of forum, the conclusion was that there was no other jurisdiction with which the dispute had a closer link than England or which was even arguably the proper forum. But was there a serious issue to be tried? The Court of Appeal recognised that a significant development of the common law on fiduciary duties was necessary for the claimants’ case to succeed. But there was a realistic argument along the following lines. Viewed objectively, the defendant developers had undertaken a role which involved making discretionary decisions and exercising power for and on behalf of other people, in relation to property owned by those other people. That property had been entrusted into the care of the developers. The developers therefore were fiduciaries. The essence of that duty was single minded loyalty to the users of bitcoin software. The content of the duties included a duty not to act in their own self-interest and could realistically include a duty to act to introduce code so that an owner’s bitcoin could be transferred to safety in the circumstances alleged by the claimants. If an order permitting service outside the jurisdiction is made, the time limit for responding to the claim will again be extended. Service is usually effected through the judicial authorities of the State in question or the British Consul. As the permission to serve the defendant out of the jurisdiction is made without notice, the defendant may on acknowledging service apply to set aside service of the proceedings. The usual ground argued is forum non conveniens where, applying the principles in Spiliada Maritime Corporation v Cansulex Ltd AC 460, the defendant has the burden of showing that there is another available forum which is clearly or distinctly more appropriate than the English forum. 5.6 EXTENDING TIME FOR SERVICE OF THE CLAIM FORM What if a claimant is not able to serve the claim form before midnight on the calendar day four months after the date of issue (see 5.5.4)? The court has a general discretion to extend this period. The application should always be made before the time limit expires. What if it is made after the limit has expired? The court still has a discretion to extend time retrospectively but, as you would expect, the test is much more difficult to meet, as r 7.6(3) provides that the court may extend time for service only if: (a) the court has been unable to serve the claim form; or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application. In Vinos v Marks & Spencer plc 3 All ER 784, the claim form was served nine days after the expiry of the four-month period. The claimant’s solicitors had no explanation for this other than that it was an oversight, and their application for an extension was dismissed. The Court of Appeal upheld the decision, holding that the wording of r 7.6(3) was such that an extension could not be granted in these circumstances as neither ground (a) nor (b) applied. This decision has been followed in other cases. For example, extensions have been refused where the claimant’s solicitor was mistaken as to the date on which the claim form was issued or simply overlooked serving it (Satwinder Kaur v CTP Coil Ltd LTL, 10 July; Hashtroodi v Hancock EWCA Civ 652, 3 All ER 530). Where the claimant’s solicitors mistakenly served the defendant when they should have served the claim form on the  Commencing Proceedings 89 defendant’s solicitors who were nominated to accept service, an extension was also refused (Nanglegan v Royal Free Hampstead NHS Trust EWCA Civ 127, 3 All ER 793). In this context, it is, no doubt, right to say that negligent or incompetent advice is always a bad reason for granting an extension. That is because there is often a disciplinary factor in the decision to extend the validity of a claim form analogous to the disciplinary factor which is commonly found in decisions about relief from sanctions (Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS EWCA Civ 109). Similarly, an extension was refused where the claimant did not serve in time only because it was not in a financial position to proceed immediately with the claim (Bayat Telephone Systems International Inc v Cecil EWCA Civ 135). As the Court stressed, the claimant should have served the claim form and then issued an application for a stay of proceedings. Note that r 2.11 provides that ‘Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.’ So, the parties’ solicitors can enter into a written agreement to extend the time for service of the claim form. The dangers of this for a claimant were highlighted In Thomas v Home Office EWCA Civ 1355, where the Court of Appeal held that a written agreement to extend the time for service of the claim form does not have to be in a single document but may consist of an exchange of letters or e-mails. An oral agreement that is then confirmed in writing by both sides is also a written agreement. However, an oral agreement between two solicitors that is subsequently recorded in a letter sent by one solicitor to the other, but not answered by the other, does not constitute a written agreement. Further, it is not enough for solicitors each to make an attendance note of an oral agreement, unless those notes are subsequently exchanged. 5.7 SERVICE OF DOCUMENTS OTHER THAN THE CLAIM FORM 5.7.1 How, who and where? Rules 6.20 to 6.29 contain provisions relating to the service of all other court documents, such as statements of case. These are basically the same as for claim forms in respect of how to serve (see 5.5.1), who to serve (see 5.5.2) and where to serve (see 5.5.3). 5.7.2 Deemed service of other documents Rather surprisingly, a complex set of rules exist, which produce different deemed dates of service for other documents according to the method used. These are set out in r 6.26 and shown in the table below. Method of service Deemed date of service First-class post (or other The second day after it was posted, left with, delivered to or service which provides for collected by the relevant service provider provided that day is delivery on the next business a business day; or if not, the next business day after that day. day) Document exchange The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day. Delivering the document to or If it is delivered to or left at the permitted address on a leaving it at a permitted business day before 4.30pm, on that day; or in any other address case, on the next business day after that day. Fax If the transmission of the fax is completed on a business day before 4.30pm, on that day; or in any other case, on the next business day after the day on which it was transmitted. 90 Civil Litigation Method of service Deemed date of service Other electronic method If the e-mail or other electronic transmission is sent on a business day before 4.30pm, on that day; or in any other case, on the next business day after the day on which it was sent. Personal service If the document is served personally before 4.30pm on a business day, on that day; or in any other case, on the next business day after that day. Note that by r 6.2(b) a ‘business day’ here means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day. EXAMPLES 1. A document is personally served at 3.30pm on a Monday. Provided that is a business day, service is deemed to occur that day as it has taken place before 4.30pm. If it was not a business day or had it been personally served after 4.30pm, deemed service would be on the next business day. 2. A document is posted first class on a Tuesday. The day of deemed service is the Thursday, the second day after it was posted, provided that is a business day. If the second day after posting first class (or its equivalent) is not a business day, the day of deemed service is the next business day. 3. A document is delivered to a permitted address at 5pm on a Thursday. Even though that is a business day, because it is after 4.30pm that is not the day of deemed service. Assume that the next day is Good Friday and so that does not count. Saturday and Sunday will not count. The following Bank Holiday Monday will not count. So, the day of deemed service is the next business day, namely Tuesday. 4. A document is left in a numbered box at the Document Exchange (DX) on a Friday. The day of deemed service is the second day after it is left, provided that is a business day. The second day will be Sunday. As that is not a business day, it does not count. The day of deemed service is the next day, Monday, provided that is a business day. 5. A document is sent by fax on a Saturday and the transmission of that fax is completed by 11.25am. Although that occurs before 4.30pm, it is not done on a business day and so does not count as the day of deemed service. Sunday also does not count. So, the day of deemed service is Monday, provided that is a business day. 5.8 SERVICE OF PARTICULARS OF CLAIM What if a claim form is served marked ‘particulars of claim to follow’. When must the particulars of claim be served? Rule 7.4(1) and (2) provides the following answer. Where the claimant does not include the particulars of claim in the claim form, they may be served separately either at the same time as the claim form, or within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form (see 5.5.4).  Commencing Proceedings 91 EXAMPLE A claim form marked ‘particulars of claim to follow’ is issued on 7 February 2024. The latest the claim form must be served is by 12 midnight, 4 calendar months later, on 7 June 2024. If the claim form is served on, say, 10 April 2024, the claimant must serve the particulars of claim within 14 days, ie by 24 April 2024. However, if the claim form is served later on, say, 31 May 2024, the claimant does not have 14 days after that to serve the particulars of claim, as that must be done by 7 June 2024 (as above). 92 Civil Litigation