Service of the Claim Form is one of the first steps that must be taken in any litigation. It is not only one of the first steps but to start a claim, it is in my view, the most important step as getting it wrong can result in a claim being deemed null and void.
The rules on service of the Claim are contained in Part 6 as well as Part 7 of the Civil Procedure Rules and I have previously written blogs about them [https://whitecollarlegalandadmin.com/category/civil-procedure-rules/].
So many people do get it wrong and I regularly see many articles of cases where the Courts deal with the issue of the Claim Form.
In this blog, I highlight one of the key rules in relation to service of the Claim Form and give 2 examples of where it went wrong for my Claimant opponents.
The Key Rules
The key rule we are talking about today is the rule that when serving a Claim Form on an individual (who hasn’t given an address for service and who is not being sued in the name of a business), the Claim Form must be served on the individual’s place of residence or last known place of residence. This rule is found in the table at Rule 6.9. However, this rule needs to be read in full as relying solely on the table can be fatal. Below the table, there are rules that apply in cases where the Claimant knows (or has reason to be believe) that the Defendant is no longer at the place of residence. What those additional rules state is that the Claimant must take reasonable steps to ascertain the current place of residence of the Defendant and if they cannot find the correct address, they may (after considering alternative places) proceed to serve at the last known address or alternatively, they can make an application to the Court for service at an alternative place or by an alternative method.
Case Study 1
The Claimant was a firm of solicitors. They represented themselves. My client was the Defendant. He was a former client of the Claimant.
The solicitors were acting for my client in a divorce matter which involved the split of a family home. My client was living at the family home until he moved out in Summer 2023. He told his solicitors his new address. Of course, because the family home was being dealt with as part of the divorce, the solicitors knew that my client had moved out and was living at his new address. The relationship between the solicitors and my client broke down and there was an outstanding invoice for around £7,000.00.
As a result of not receiving payment, the Claimant Solicitors issued proceedings against my client.
The address they put on the Claim Form was the family home and they asked the Court to serve the Claim Form at that address. Clearly, they knew my client was not resident at the family home. My client was not aware of the Claim Form and therefore did not respond to it. The Claimant Solicitors obtained Default Judgment on the basis of no response and issued a warrant for bailiffs to start recovering the debt. My client became aware of the Claim due to the people at the family home (which had recently been sold) notifying my client of the bailiffs visit (which of course had coursed some distress to the new owners; and of embarrassment to my client).
I was instructed to prepare an urgent application to set aside the judgment on the basis that the Claim Form had not been validly served (as well as other technical defects regarding the validity of the claim as it concerned a Solicitor/Client relationship).
Before submitting the application, I contacted the Claimant Solicitors pointing out their clear defect and failure to serve the Claim Form at the correct address. To save time and costs, I invited them to consent to set aside the Default Judgment and to pay my client’s costs. They did agree and the Claimant Solicitors agreed to pay for my time and fees in getting the Default Judgment set aside (which amounted to around £450.00).
In addition, as part of the agreement, the Claimant Solicitors also agreed to drop the claim for the outstanding invoice.
Case Study 2
The Claimant was a Landlord. She was represented by a national firm of Solicitors. My client was a former joint tenant of a residential property.
In 2019 my client, his brother and sister-in-law rented a large house in Uxbridge. They were all joint tenants. They renewed their joint tenancy year-on-year for around 3 years. At the end of the final year, my client decided he wanted to move out. He notified the Landlord’s letting agent of this decision and did in fact move out. The letting agent agreed that a new tenancy would be granted to my client’s brother and sister-in-law only and it was therefore agreed that my client’s liability to pay any rent as a tenant would come to an end. This was confirmed in writing by email. For some reason however, no actual written tenancy was signed by the brother and sister-in-law.
Around 9 months later, the letting agent approached my client asking him to be guarantor for his brother and sister-in-law. My client agreed and provided the letting agent with all the necessary information to complete a credit check but he failed. Following this, the landlord issued a Section 21 Notice to evict my client’s brother and sister-in-law from the property. For some reason, my client was also named on the Section 21 notice even though he was not currently a tenant. The Section 21 notice was served on the property address only.
Court proceedings were issued for possession of the property under Section 21. My client was named as the 3rd Defendant. The Claim Form stated that my client’s address was at the property which clearly was not correct. A defence was filed by my client’s brother claiming that the parties had agreed to a new extended term and therefore the Section 21 notice was invalid. My client provided a witness statement which had his current address on it. In the witness statement he also confirmed that he was not a tenant as he had moved out over a year earlier.
The case went to a final hearing and a possession order was granted. The order was made against all 3 defendants including my tenant. Because the claim had been contested, the Court also ordered all 3 defendants (including my client) to pay the landlord’s legal costs of around £6,000.00.
The Claimant’s solicitors chased my client for payment of the costs as they knew he had the money and that is when I became involved. In addition to this, the Claimant also started a separate money claim for the rent arrears which had amounted to around £11,000 (since my client had left the property). This money claim was in fact served correctly at my client’s current address.
Upon consideration of the evidence and correspondence, I assisted my client in making an application that the possession order and costs order against him be set aside on the basis that he had never been served with the Claim Form. Whilst he might have had some knowledge of the proceedings, as he was never served with the Claim Form (because it was sent only to the property address), the proceedings against him had never commenced.
The Claimant opposed the application claiming that the tenancy to which my client was a party to had never legally come to an end and therefore the property address was the correct address for service (on this point, even if they were correct about the tenancy legally coming to an end, the claim form would still not have been served correctly at the property). On the day of the hearing, the Claimant decided to agree to the application and my client was released from the possession order and more importantly, he was released from the cost order.
In relation to the money claim, because the possession order against my client was now set aside, I set out about the task of defending the rent arrears claim on the basis that my client was never liable for the rent arrears that had accrued because he had been released from the tenancy (and at that point of him leaving there were no arrears); and of course I relied upon the fact that he was wrongly pursued as a tenant.
After taking the formal step of filing a Defence to the claim, the Claimants dropped the claim against my client.
Takeaway points
The Rules are there to be followed and must be followed. They are available online and apply to everyone who is involved in Court action, whether they are represented or are acting on their own.
These 2 cases prove that solicitors (and other lawyers within solicitor firms) also get it wrong. If they get it wrong as qualified people, so can you.
Get advice early on the rules, practice directions and procedures especially if you don’t understand them or if you have any doubts.
Services of Philip Nam
My services in relation to both clients were carried out at Inspire Legal Group Solicitors. I am employed as a Consultant Lawyer at that firm of solicitors. I also own White Collar Legal and can provide advice and assistance in relation to civil litigation matters via White Collar Legal.
For advice and limited assistance, you can instruct me via White Collar (Legal and Admin) Ltd (least expensive). For uninsured and unsupervised litigation services, you can instruct me via White Collar Legal CIC. For insured and supervised litigation services, you can instruct me at Inspire Legal Group Solicitors (most expensive).
Free Initial Consultations can be booked here: [https://lawtap.com/uk/lawyer/philip-nam.html]
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