In simple terms the service of proceedings is the sending of the court proceedings to the Defendant or onto the Defendant’s Solicitors. Unless a one month extension of time is agreed between the solicitors or an extension of time is allowed by the court, the court proceedings need to be served within four months of the issuing of proceedings, providing that service needs to take place in England and Wales. If court proceedings are not served, then the personal injury or clinical negligence claim dies.
The rules regarding the service of proceedings are governed by Part 6 of the Civil Procedure Rules 1998, which can be found here. On the face of it the service of proceedings is a simple process – just like posting a letter, however, the rules are fairly technical and often a Claimant Solicitor may make a mistake, which can cause a major issue.
When issuing a claim the Claimant’s Solicitors should specify whether the court proceedings are to be returned to the Claimant’s Solicitors for service or whether the court themselves should serve the proceedings.
The following is a list of common procedural errors which occur when a Claimant Solicitor serves court proceedings in a personal injury or clinical negligence claim:
- Failure to serve on the Defendant’s Solicitors when the solicitors have been instructed to accept service.
- Failure to serve directly on the Defendant when the Defendant’s Solicitors have explained that they are not instructed to accept service.
- Failing to serve in time.
- Failing to put enough postage onto the proceedings.
- Failing to serve the correct court document when serving outside of England and Wales.
- Failing to serve at the correct address of the Defendant.
- If hand-delivering the court proceedings for service, failing to serve at the appropriate place.
- Failing to serve the proper stamped Claim Form as a copy cannot be served.
Usually but not always it is the service of proceedings which means that if the Defendant successfully defends the claim and the claim is either struck out or found to be fundamentally dishonest, then the losing Claimant has to pay the Defendant’s legal costs.
If a Claimant Solicitor fails to serve the proceedings correctly and this is fatal to the claim then the Claimant should be advised to seek independent legal advice with a view to bringing a professional negligence claim against the Claimant’s solicitors.