Nailing service of court documents
Thursday 20th November 2014
Procedural hurdles can complicate even the most straightforward debt claim. Court rules about what the parties must do and by when are strict. Failure to comply with them can be fatal to a claim.
One of the potentially tricky areas is service of the Claim Form once you’ve issued it, particularly when you are dealing with a Defendant who is based overseas: who should be served, in what capacity, when and where?
In the recent case of Fairhurst Ward Abbots Ltd v. 25 Culcross Street Investments Ltd SARL (2014) QBD TCC, the court decided that the Claim Form could be validly served on the Defendant (a Luxembourg based entity) by nailing it to the hoardings of a building site in England over which the Defendant retained a significant degree of control. The site constituted a place of business in the jurisdiction, even though it was staffed by independent contractors.
The court took a common sense approach and, in making its decision, gave weight to the facts that:
- a) the Defendant appeared not to be co-operating,
- b) no prejudice would be caused to the Defendant by allowing service in this way, and
- c) it was important to minimise costs and time.
The case is a timely reminder to consider logistical issues, such as where the Defendant is based and whether they are likely to be cooperative, at an early stage in any claim, so that you can weigh up whether a claim is worth running. If service of a Claim Form is not valid and you are out of time to issue a fresh one, you may give your opponent an easy win.