Nominations to accept service
The recent case of Lucine Wilson v Faisal Mehmood, dealt with by Patrick McCarthy, Partner at Horwich Farrelly, highlights the significant tactical advantages which can be gained by insurers nominating solicitors to accept service of proceedings on their behalf.
CPR 6.5(2)(a) and 6.7 make it clear that where a defendant has given notice in writing of the address of a solicitor at which the defendant may be served with proceedings, or when a solicitor has notified the claimant in writing that the solicitor is instructed to accept service of proceedings on behalf of the defendant, then the proceedings must be served at the business address of that solicitor.
Lucine Wilson v Faisal Mehmood arose following a road traffic accident in September 2009. Upon receipt of the letter of claim (7th October 2009), the defendant’s insurer wrote to Camps, the claimant’s solicitors, nominating DWF to accept service of proceedings.
As negotiations failed to conclude in a settlement (the claimant having failed to provide sufficient documentation in respect of loss of earnings), the defendant’s insurer then nominated HF to accept service of proceedings on 25th May 2010.
Notwithstanding those nominations, the claimant issued proceedings in late May 2010 but served them directly on the defendant, then subsequently obtained default judgment.
HF were instructed on 8th November 2010, following which we agreed with Camps that the default judgment should be set aside in light of the obviously ineffective service.
The twist comes in the fact that CPR 7.5 states that where a Claim Form has been issued, it must be served within 4 months of the date of issue. Accordingly once the judgment had been set aside, we filed a defence stating that, as the Claim Form had not been validly served (upon either HF or DWF) within 4 months, the claim should be struck out for failure to comply with CPR 7.5. This issue was heard on 4th July 2011 at Birmingham County Court.
DJ Harrison was extremely reluctant to strike out the claimant’s claim as she felt that this was a draconian measure. However, she accepted that she was bound by the rules to do so. Accordingly, she declared the Claim Form void for want of proper and effective service, and ordered the claimant to pay the defendant’s costs of the proceedings.
In the interim, Camps had disclosed sufficient documentation to enable the defendant to consider the claim for loss of earnings. Accordingly a strong offer has been put forward which, if accepted, would give rise only to an entitlement to Predictive Costs, pursuant to CPR 45 (II).
This decision highlights the importance of, and the potential benefits of, nominating solicitors to accept service of proceedings at an early stage, acting as a “safety net” if proceedings are served directly upon a defendant who then fails to forward them to their insurer. Whilst this was a novel case (resulting in the dismissal of the claimant’s pleaded claim), if proceedings are not validly served any judgement obtained should be set aside with no adverse costs consequences at all to defendants or their insurers.
If you would like any further information or to discuss these matters, please do not hesitate to contact
Patrick McCarthy: DDI 0161 214 5741 or by e-mail at patrickmccarthy@horwichfarrelly.co.uk
