Don’t assume you can serve the solicitors!

elliot_kay_piBy Elliot Kay

Gee 7 Group and Another v Personal Management Solutions Ltd and Others [2016] (unreported)

The Defendants appealed against a master’s order that service of a claim form by the Claimants on their solicitors amounted to good service. The Claimants applied for service by an alternative method under CPR 6.15.

Pre-action letters had been exchanged between the parties’ solicitors in relation to a copyright infringement claim. In January 2015, the Defendants’ solicitors wrote to the Claimants’ solicitors explaining that they had been instructed by the Defendants and directed the Claimants’ solicitors to send any correspondence to them instead of the Defendants. The Claimants’ solicitors sent a proposed pre-action disclosure application to the Defendants’ solicitors and sought confirmation that they were instructed to receive service. The Defendants’ solicitors did not confirm that they were.

In the absence of such confirmation, the Claimants’ solicitors sent the application notice directly to the Defendants. The Claimants’ solicitors then served the claim form by fax on the Defendants’ solicitors, five minutes after the expiry of the deadline for service. The Defendants’ solicitors pointed out that they had not been authorised to accept service and filed an acknowledgement of service contesting jurisdiction.

The master held that the service point taken by the Defendant was highly technical and the January letter demonstrated an implicit assumption that its solicitors were authorised to accept service. The Defendant appealed and the Claimant made an application to permit alternative service.

The appeal was heard by Mr Justice Arnold who held that there was nothing in the January letter to suggest that the Defendants’ solicitors were authorised to accept service of the claim form. The Claimants’ subsequent conduct confirmed that position, in that when they had received no response from the Defendants’ solicitors, it sent its application for pre-action disclosure directly to the Defendant. It was clear from that course of action that the Claimants did not understand the Defendants’ solicitors to have been authorised to accept service. The point taken by the Defendants might well have been technical but the issue was a question of whether an originating process had been properly served which goes to the root of the court’s jurisdiction. It was also an important matter as between solicitor and client- even if a solicitor was instructed to act for a client in a claim, it does not necessarily follow that the solicitor has authority to accept service of originating process. Mr Justice Arnold went on to find that there was no good reason to permit alternative service- the appeal was allowed and the application dismissed.

 

Case report obtained from Lawtel which can be accessed here: https://www.lawtel.com/UK/AC9601914)

©Thomson Reuters

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: