1 Do you agree that it is necessary to retain the principle that good service is effected if the claimant follows the procedural requirements for sending a document, regardless of whether it is actually received?

Yes.

2 Do you agree that the court’s discretion to set aside default judgments provides adequate protection for the defendant? If not what further protections do you propose?

Yes.

3 Do you agree that a claimant should be required to carry out reasonable enquiries into the defendant’s whereabouts before serving on an address that he knows is no longer current, but not otherwise?

Yes (but see the comments below concerning the proposed rule 6.7(5)).

4 Where the claimant knows that the defendant no longer resides or carries out business at the last known address, should they be required to consider alternative methods and, if appropriate, to apply for the court’s permission?

Yes; indeed, we suggest that the obligation should go further. In circumstances where the claimant knows that the defendant no longer resides or carries out business at the last known address (and, it is implicit, reasonable enquiries have not enabled the claimant to discover the defendant’s current usual residence or place of business), arguably the claimant should be under an obligation to apply to the court for directions as to the most appropriate method of service. Otherwise, it seems there is likely to be much satellite litigation as to what constitutes reasonable enquiries in a particular case and therefore whether or not service at the last known address is still good service, notwithstanding the claimant knows the defendant no longer resides or carries out business there.

5 Do you agree that the time limit for serving the claim form should apply to the time within which the claimant must despatch the claim form after the date of issue? If not please explain why not?

No, there is no need for such a fundamental departure from previous practice. We predict that the proposed new rule would simply trigger a fresh bout of satellite litigation on the meaning and operation of the new rule. This is undesirable given that the proper interpretation of the old rule now appears to be relatively settled.

6 Should there be a standard period for determining the date of deemed service date for all methods of service, for example 2 days after despatch (being the longest current period)?

No. There seems to be no good reason for denying claimants the benefit of utilising a prompter method of service by deeming that method to have taken the same length of time to complete as all other methods of service, including the least prompt.

7 Do you agree that deemed service should take place on a business day? If not please explain why not.

Yes.

8 Should the deemed served date for e-mail be in line with fax service i.e. on that day if its transmitted on a business day before 4.30pm, or in any other case on the next business day? Please give reasons for your view.

Yes. This would seem logical, for the reasons given in paragraph 28 of the consultation document.

9 Should postal service be limited to first class or equivalent services, or should any postal service be allowed? In the latter case, how much extra time (if any) should be built into the deemed date of service?

Postal service should be limited to first class or equivalent services. The practice of using first class post has worked effectively. There is no demand for allowing postal service via a service which does not provide for delivery on the next business day. To permit that would produce unwarranted confusion and delay.

10 Do you think that service on an e-mail address should be allowed as the same basis as service on a fax address (e.g. if the e-mail appears on the legal representatives letterhead)? If not are there any alternative options?

No. E-mail addresses are less susceptible to monitoring and supervision compared with the receipt of faxes (usually to one central number identified on a letterhead). In practice, individual e-mail addresses (rather than central ones capable of firmwide monitoring) often appear on letterhead and if the appearance of such e-mail addresses on letterhead were to be taken as an indication of a willingness to accept service to that e-mail address, this would create an unacceptable risk that documents could be deemed as served whereas in reality they had not come to the attention of the recipient since the e-mail address in question was defunct or not monitored at the relevant time. In addition, it is very easy to make an error in an email address – and also some firewalls reject emails of particular types irrespective of their actual content. In short, there is a significant higher risk that service by email will be ineffective (unbeknown to one or both of the parties) than compared with service by fax.

11 Should the court be given the power to order retrospectively that service by an alternative method is valid? Please give reasons for your view.

Yes. It is appropriate for the court to have this power for the reasons given in paragraph 37 of the consultation document. However, see our comments on the proposed rule 6.12 (1) below.

12 Do you agree, in principle, that the methods of service of claim forms or other documents on defendants in Scotland and Northern Ireland (in proceedings commenced in England and Wales) should be those permitted in England and Wales, without reference to the methods of service permitted under the procedural laws of Scotland or Northern Ireland respectively? If not, why not?

Yes.

13 If so, should this extend to personal service (by the claimant or his agent or solicitor)?

Yes.

14 Do you think in respect of property claims it should be possible to effect service of a claim form at a relevant address in England and Wales on the Land Register or an address given under s.48 of the Landlord and Tenant Act 1987? If not, why not?

Yes.

15 Should a party be able to give an address for service anywhere within the United Kingdom? If not, why not?

Yes.

16 Should a party be able to give an address for service anywhere within the EU? If not, why not?

No. In practice, effecting service of documents in member states of the European Union remains problematic and cannot be regarded as equivalent to Scotland and Northern Ireland, which share a common language and postal service with England and Wales.

17 Do you think that a party should be able to provide up to three addresses for service of which at least one should be a postal address within the UK (or EU)? If not, why not?

No. If an address for service within the UK is required, there is no purpose in a defendant submitting alternative addresses for service outside the UK.

18 Do you agree that the time limit for filing a certificate of service of a claim form should be changed from 7 days to 14 days to align it with the period for acknowledgment of service? Is a certificate of service necessary when an acknowledgment of service has been filed?

A certificate of service filed by the claimant is self-evidently not necessary when an acknowledgment of service has been filed by the defendant. We suggest that the rule is amended so that the obligation to file a certificate of service only arises when a claimant is filing a request for a default judgment in the absence of an acknowledgment of service.

19 Should references in Part 6 to solicitors be replaced by references to any authorised litigator? If you think not, please give reasons for your view.

Yes, but we suggest that the references should be to "a solicitor or other authorised litigator". It may not be immediately apparent that all solicitors are authorised litigators, hence we suggest this slight adjustment in order to eliminate the possibility of confusion.

20 Do you agree that judicial review claims against the Crown should be served in the same way as civil proceedings against the Crown, in that service must be on the relevant solicitor for the particular Government Department as set out in the list of authorised Government Departments annexed to Part 66? If not please explain why not.

Yes.

21 Are there other categories of judicial reviews where it would be desirable and practical to specify addresses for serving judicial review claim forms?

No.

22 Should the distinction between the county court and the High Court be removed so that a judgment creditor who is an individual litigant in person has the option to effect personal service personally in all courts?

Yes.

23 Do you have any comments on the proposed draft of Part 6? Please state what these are and give reasons for your views?

Rule 6.5

It would be helpful to provide guidance as to how to effect personal service on a limited liability partnership.

Rule 6.6 (2)

We suggest that it is specified that the solicitor must notify the claimant in writing that he is authorised to accept service. In view of the case law to the effect that service directly on the defendant (where the defendant’s solicitor has notified the claimant that he is authorised to accept service) is bad service, it is important that there should be no doubt as to whether or not the claimant has been so notified. Hence, the need for such notification to be in writing.

Rule 6.7 (5)

Further guidance should be given as to what constitutes knowledge for the purpose of this sub-rule. In the appeals heard together in Collier v Williams [2006] EWCA Civ 20, the Court of Appeal held that "known" meant actual knowledge (and not belief) and knowledge which could have been acquired exercising reasonable diligence. Unless the new rule specifies what is meant by the word "knows" there will inevitably have to be litigation up to the Court of Appeal in order to settle the point.

Rule 6.11 (1)

The wording under the headings "Deemed date of service" in respect of both first class post and DX seems unnecessary convoluted. We suggest the much simpler formulation: "On the second business day after it was posted".

Rule 6.12 (1)

This sub-rule appears to set the same threshold for the exercise of the power to authorise alternative service, whether or not the application is made retrospectively. The threshold is that there is a "compelling reason". Whilst that may be the appropriate threshold for a retrospective application, an application that is made prospectively should, in our view, only require that there is a "good reason" to authorise alternative service.

Rule 6.14 (2)

We suggest deletion of sub-paragraph (a) for the reasons expressed in our answer to question 18 above.

Rule 6.17 (1) (a)

The cross reference to rule 6.18 appears to be an error; it should be 6.19.

Rule 6.17 (1) (c)

The cross reference to rule 6.19 appears to be an error; it should be 6.20.

Practice direction paragraph 8.2

This paragraph appears to impose an additional requirement on the claimant to consider whether there are any alternative places where there are reasonable prospects of effecting service upon the defendant (in circumstances where the claimant is unable to discover the address of the defendant’s current residence or place of business). If this obligation is to be retained, it should appear in the rule as well. We have, in any event, expressed the view above in answer to question 4 that, in circumstances where the claimant knows that the last known address of the defendant is no longer the defendant’s current residence or place of business, there should be an obligation on the claimant to apply to the court for directions as to the most appropriate method of service.

Practice direction paragraph 10.2

The apparent limitation of this paragraph to claim forms would appear to be a mistake. The remainder of paragraph 10 is not restricted to claim forms and there seems to be no reason why paragraph 10.2 should not apply to any "document".

Proposed Rule 7.5 and 7.6

See our answer to question 5 above.

Yours faithfully

London Solicitors Litigation Association