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Are you being served?

View profile for Liam Waine
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Are you being served?

A common story in the world of litigation is one which focusses on whether a claim form has been validly served on the defendant.

The issuing and service of a claim form is arguably the most important procedural step a claimant will take. Time and time again there have been numerous cases which have been reported that have focused on the validity of effective service of the claim form and highlights the common pitfalls if you get this wrong. If a claimant gets the procedural steps wrong then this could have catastrophic consequences on the ability to keep the claim alive, particularly if the limitation date has expired after the attempt of service.

A recent case of Ellison Road Limited v (1) Khurram Mian T/A HKH Kenwright & Cox Solicitors ; (2) Moriarty Law Limited [2023] EWHC 375 (Ch) considers the issue of what constitutes effective service yet again. It is also the first time in which the court has considered whether an individual sued in their own name, trading as their business name, was sued as an individual or a business.

The case itself involved allegations of professional negligence from the claimant against the defendant solicitor who had acted for the claimant back in 2016 to provide advice in relation to two separate loan agreements.

As is often the case the claim was issued with limitation in sight and therefore if service was not valid it would have given the defendant a limitation defence.

On the facts the claim was issued on 13 May 2022 and attempted service was made on 12 September 2022.

The claim form described the first defendant as “Khurram Mian t/as HKH Kenwright & Cox Solicitors” with its address for service being 20 Old Bailey, London EC4m 7EF.  Previously the claim form had provided the address for service as 15 Old Bailey, but the claimants solicitor had known that this building was being redeveloped as his firm had previously carried on business there. The claimant’s solicitor also took steps to find out where Mr Mian worked on the SRA website which confirmed that he worked at Moriarty Law Limited and at 20 Old Bailey.

Mr Mian made an application to the court concerning the validity of service of the claim form as he was being sued as an individual and therefore could only be served at his usual or last known residence. Mr Mian also argued that if this was not right then 20 Old Bailey was not at any time his or HKH Kenwright & Cox Solicitors place of business.

Master Brightwell disagreed with Mr Mian’s submissions and stated that;

“HKH Kenwright & Cox Solicitors was not a legal entity but rather the trading name adopted by Mr Mian as a sole practitioner. CPR rule 6.9(2) is clear in providing that the relevant place is the principal or last known place of business of an individual who is sued in the name of a business.”

“the claimant knew that Mr Mian was not carrying on business at 15 Old Bailey, as its solicitors knew that the building was being redeveloped. The solicitors therefore consulted the SRA website, and found that Mr Mian was practising as a solicitor from Moriarty Law Limited, and that the address provided to the SRA and thus by the SRA to the public for that firm was 20 Old Bailey. It is therefore submitted that they thus ascertained Mr Mian's current business address and served him with the claim form there, i.e. in accordance with CPR rule 6.9(4)(a).”

“I consider that 20 Old Bailey was at 9 September 2022 Mr Mian's current place of business, and furthermore that the claimant through his solicitors had taken reasonable steps in ascertaining that address as Mr Mian's current business address. The public is entitled reasonably to assume that the information published by the SRA about a practising solicitor is correct. …………Once the address had been ascertained it was not reasonably necessary to make further enquiries……….; the duty is to carry out reasonable steps, not to make every possible enquiry.”

Master Brightwell therefore confirmed that the claimant effected good service of the claim form on the first defendant and dismissed the defendant’s application.

The issues which surround the service of claim forms can prove to be complex as this case has highlighted.  There is a lesson for all who undertakes litigation work in that leaving a claim to the last minute before expiry of the limitation period can open the door for defendants to raise these issues to try and seek to rely on a limitation defence to a claim.

However, this recent case also highlights that defendants should also tread carefully in deciding to make an application arguing defective service. Defendants may think to themselves “I’m Free!” from having to fight a claim but this recent case highlights the potential hurdles in the way.

If you are a claimant thinking about issuing court proceedings or a you are a defendant recently in receipt of a claim form you should take urgent independent legal advice from a specialist solicitor to ensure your position is best protected. Stephensons' dispute resolution team can assist, call us on 0161 696 6178.