The Claims Process – Issuing the Claim and Service
In this article we look at the issuing of legal proceedings and service of those proceedings on the defendant.
If you have complied with the relevant Pre Action Protocol, and have attempted to settle the issues in dispute to no avail, you may find yourself in a position where issuing legal proceedings is the next logical step to resolving your dispute.
For more information on the Pre Action Protocols please refer to our article titled Pre-Action Conduct and Protocols - Resolution over Litigation.
When bringing a claim it is important to be mindful that there are strict time limits imposed upon:
- Issuing the claim, which is done via the completion of a claim form and filing the form at court; and
- Serving the claim, which is done via sending the claim form to the party you are bringing proceedings against.
It is important to abide by these time limits to avoid the risk of your claim becoming statute barred or being dismissed.
Time limits for issuing your claim
The law places time limits upon bringing a claim (limitation periods).
The Limitation Act 1980 provides limitation periods for most types of claims. By way of example, it provides for a limitation period of:
- 6 years for actions in respect of simple contracts;
- 12 years for actions for breach of an obligation contained in a deed; and
- 6 years for claims in tort (for example negligence)
In all cases, the period begins to run from the date on which the cause of action accrued.
For some claims, such as discrimination or defamation, the limitation period is much shorter.
Time only stops running for limitation purposes once proceedings are formally issued and the claim form is received by the court. Once the limitation period has expired, generally no action may be brought.
It is therefore important to ensure your claim is issued within the relevant limitation period and obtain advice immediately upon becoming aware of any events which may give rise to a claim.
Time limits for serving your claim
Once the claim form has been filed at the court, the court will give the claim a number and stamp the claim form. Once this step has been taken, the claim has been issued.
In most cases, you have 4 months from the date of issue to serve the sealed claim form on the defendant. This means that the claim form should be served by no later than 12.00 midnight on the calendar day 4 months after the date of issue. There are instances where the 4 month rule does not apply, for example if the defendant is located abroad.
There are various methods of serving the claim form, for example:
- By First class post, or document exchange (DX) or other service which provides for delivery on the next business day
- Personal service;
- Fax; or
- Other electronic method, e.g. email.
It is important, regardless of the method of service, to serve the form on the correct address.
In all cases you can serve the claim form on the solicitor who acts for the defendant, but only if the defendant has agreed in writing to accept service by that method.
The importance of getting it right
Looking at what happened in a real case, Woodward and another v Phoenix Healthcare Distribution Ltd, flags the potential pitfalls, and the importance of issuing and serving a claim correctly.
Step 1: Issuing the Claim
A contract between the parties was breached on 20 June 2011.
A claim form was issued on 19 June 2017, for breach of contract.
The claim was issued within 6 years of the breach. As set out above, the relevant limitation period for breach of contract claims, is 6 years from the breach. So far, so good.
Step 2: Serving the Claim
A claim form should be served on the defendant by no later than 12.00 midnight on the calendar day four months after the date of issue.
In this case the date of issue was 19 June 2017. The claim form therefore needed to be served by midnight on 19th October 2017.
On 17 October 2017 the claimant’s solicitors sent the claim form to the defendant’s solicitors, by first class post. In addition a copy of the claim form was emailed to the defendant’s solicitor, and a read receipt revealed successful delivery. These steps were taken within the 4 month window.
However, not only does the claim need to be served within the 4 month deadline, it also needs to be served on the correct address.
The claim was served on the defendant’s solicitors. You’ll know, from the guidance set out above, that in all cases you can serve the claim form on the solicitor who acts for the defendant, provided that the defendant has agreed in writing to accept service by that method.
In this case the defendant’s solicitor had never been instructed to accept service and neither their solicitors nor the defendant had ever confirmed in writing that they had been authorised to accept service.
On 20 October 2017 the defendant’s solicitor replied to the claimant’s solicitor to say that service of the claim form on them constituted defective service, their client needed to be served, not them.
Service was defective, and by the time the claimant was notified, the limitation period has expired.
The claimant’s claim was for financial losses in excess of £5 million, but as a result of erroneous service their claim was time barred.
Meeting the strict time limits for issuing and serving a claim are crucial, and errors can be costly. Before issuing legal proceedings we would always recommend seeking professional legal advice to ensure that the relevant time frames are complied with and no deadlines are missed.