Service of the claim form within the jurisdiction: methods

In general, and unless provision is made to the contrary, a claim form may be served on a defendant within the jurisdiction by any of the methods listed in CPR rule 6.3(1). These methods may also be used to effect service on a company, in addition to the forms of service provided for by statute. In practice, service on a company in accordance with CPR rule 6.3(2) will usually be simpler and easier than service under statutory schemes: the schemes are deliberately distinct. The Rules deal with the methods of transmission of the claim form, but do not specify whether it must be accompanied by words or deeds which make clear that it is being delivered by way of service. The probable answer is that delivery in accordance with the methods set out below is delivery by way of service unless the contrary is made clear.

According to CPR rule 6.3(1), a claim form may be served in England and Wales (a) by personal service in accordance with CPR rule 6.5, or (b) by first class post or by document exchange, or by other service which provides for delivery on the next business day, in accordance with Practice Direction 6A, or (c) by leaving the document at a place specified in CPR rules 6.7 to 6.10, or (d) by fax or other means of electronic communication in accordance with Practice Direction 6A, or (e) by any method authorised by the court under CPR rule 6.15. The significance of this is that personal service of the claim form is not the only method of making service of it, and that service by post to an address within the jurisdiction, leaving it at a place within the jurisdiction, and fax transmission within the jurisdiction are permissible alternatives to personal service of the claim form.

Personal service within the jurisdiction can be made only on a defendant who is physically present in the jurisdiction. It was widely understood that the same limitation applied in the case of service within the jurisdiction by posting and by leaving: that it was also dependent on the defendant being within the jurisdiction at the date of actual or deemed service: it is hard to see how there can be service on a defendant within the jurisdiction if the defendant is not. But, perhaps in accordance with a recent, more flexible, approach to service, it has been held that good service may be made by posting to an address within the jurisdiction when the individual on whom service is to be made is overseas.^[1] As a matter of first impression, this appears to treat the rule as being designed to state how service of process may be made, and to regard whether the defendant is in or out of the jurisdiction at the time, as of secondary concern. On the other hand, if the defendant is only temporarily out of the jurisdiction, it does not seem sensible to require service, if made during that short period of physical absence, to be in accordance with the more elaborate processes for service out of the jurisdiction. The sensible, practical result is that, as far as English law is concerned, service may be made within the jurisdiction even though, and while, the defendant is temporarily overseas. If a foreign court, called on in due course to recognise the judgment, sees in this a reason to refuse recognition, that is the risk the claimant takes.

The claimant may arrange for process to be served, personally or by his agent. Alternatively, the court may serve the claim form, in the manner which it chooses, unless a rule provides that a party must serve the document in question, or a practice direction or the court orders otherwise. If the court has failed to effect service, and has sent a notice of non-service to the party on whose behalf the document was to be served, it will not make a further attempt to serve.

• [1] City & Country Properties Ltd v Kamali [2006] EWCA Civ 1879, [2007] 1 WLR 1219. 2 Munills v Berlanda [2014] EWCA Civ 6, [2014] ILPr 605 (not permissible to serve in England at a former work address; if the principle in City & Country Properties Ltd >’ Kamali is relied on, service must be at a residential address during what is only a temporary absence). 3 CPRr. 6.4. 4 CPR r. 6.18 (postal service by court), r. 6.19 (service by court bailiff). 5 CPR r. 6.5(1). 6 See Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA Civ 127, [2002] 1 WLR 1043; Arab National Bank v El Abdali [2004] EWHC 289 (Comm), [2005] 1 Lloyd's Rep 541; Oran Environmental Solutions Ltd v QBE Insurance (Europe) Ltd [2020] EWHC 1271 (Comm). A solicitor on the record, therefore, may not refuse to accept service. If he finds himself without instructions and unable to act, he must apply under CPR r. 42.3 for an order that he has ceased to act, and until he does he will be considered still to be acting for the party, and service may be effected on him. 7 If in the contract between the parties the defendant ‘irrevocably appointed’ a person to be an agent for the service of process, service on that person is good service even though the agent has purported to resign: Piraeus Bank SA v Grand Anemi Ltd (unrep., 18 July 2019). If the contract between the parties allowed the claimant to appoint an agent to receive service on behalf of the defendant if the defendant failed to do so, service on that person is good service: Banco San Juan International Inc v Petroleos de Venezuela SA [2020] EWHC 2145 (Comm). 8 CPR r. 6.14 (date), r. 7.5(1) (step). 9 CPR r. 6.5(3)(a).