Lenders must beware new rules
Lenders issuing and serving proceedings to include repossession
for non-payment, debt recovery, fraud loss recovery and recovery of
debitable commission, need to be aware of the changes to the rules
on service of proceedings in England and Wales which came into
effect on 1 October 2008.
The most significant changes include:
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• If the lender is serving a claim form itself, it must now
dispatch it by one of the methods of service provided for before
midnight on the calendar day four months after the date of issue.
The methods of service include personal, first class post (or
similar) or DX, delivery to or leaving at a permitted place, fax
(completed transmission) or other electronic method.
• Service of the claim form is now deemed to take place on the
second business day after dispatch, whatever method of service is
used.
• Importantly, where a defendant individual has not given an
address for service and the claimant has reason to believe that the
defendant no longer resides or carries on business at the usual or
last known address, the claimant must now take reasonable steps to
ascertain the defendant’s current address at which service can be
effected. If no current address can be ascertained and there is no
alternative place or alternative method by which service can be
effected, the claimant is free to serve at the defendant’s usual or
last known address. This will be good service despite the fact that
the claim form may not come to the defendant’s attention.
• A certificate of service must now be filed within 21 days of
service of the particulars of claim unless all the defendants have
filed acknowledgments of service within that time, in which case
this requirement is now dispensed with.
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By GlobalData• For documents other than the claim form, a party to
proceedings can now give an address for service within the United
Kingdom, not just within the jurisdiction.
• Documents other than the claim form are also now deemed served
on a business day. Service by fax (completed transmission), email,
personally or by delivering to or leaving at a permitted address
before 4.30pm on a business day is now deemed to take place on that
day. If after 4.30pm, service is now deemed to take place on the
next business day. When serving by first class post (or similar) or
DX, service is now deemed to take place on the second day after it
was posted if that day is a business day, or if not, the following
business day.
These new rules are not retrospective. They will apply only to
claim forms and other documents served on or after October 1 2008.
The previous rules, and case law, will continue to apply to claim
forms and documents served before October 1. Getting service right
can be crucial, particularly where there is a limitation date in
play.
Greg Standing
The author is a partner in the Dispute Resolution group, Wragge
& Co LLP
