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“Can you issue court proceedings to protect the time bar?” is an instruction solicitors receive on a regular basis. The answer is, of course, yes. However, the instruction is frequently followed by the request to “hold off” from serving the claim form in order to provide further time to attempt to resolve the dispute.
We discuss below the implication of such instructions, particularly in view of the current COVID-19 crisis.
The position under the Civil Procedure Rules
Under Rule 6 of the Civil Procedure Rules (CPR), once a claim form has been issued, this must be served upon the defendant within four months, if serving within the jurisdiction, and six months if serving outside of the jurisdiction.
So, all being well, the claim form is issued and served well within the deadline.
However, going back to the request to hold off from serving the claim form, the tactic of waiting to serve the claim form came under scrutiny in the case of Lester Viner & Others v Volkswagen Group Ltd & Others [2018] where Senior Master Barbara Fontaine went as far as to say that the delay was “a serious misjudgement”.
As discussed in our earlier article, the court found that the claimants had no good reason not to have served the claim form within the time allowed; it was for purely tactical reasons that the claim form was not served.
This means that whilst the answer remains that, of course, a claim form can be issued, the request to hold off from service will be met with some resistance and rather strict warnings! As soon as the claim form is issued, steps should be taken to serve.
If further time is required to negotiate and avoid further costs, as directed in the Lester Viner case, parties are advised to press on with service and then seek to agree a stay. If the other side is not prepared to agree a stay, it is unlikely that any amicable settlement discussions were going to take place in any event. Accordingly, delaying service would have proved fruitless.
What about delays due to COVID-19?
There are often procedural delays which can mean that service takes weeks, or even months if outside of the jurisdiction, to complete. Therefore, whilst six months may seem like a long time, steps to effect service should be taken as soon as practicable.
However, with the current crisis caused by the global outbreak of COVID-19, service of a claim form is proving ever more difficult.
The best course of action is to ask the defendant to instruct English solicitors to accept service on their behalf. If so, a request can be made to the nominated solicitor to accept service by email. The court has encouraged solicitors to agree to service by email and, in practice, solicitors have been doing so for some time.
If the defendant refuses, or simply does not respond to a request to instruct English solicitors to accept service, alternative service arrangements will need to be considered.
The claimant will need to consider the practicalities of being able to serve the defendant by post or in person; steps which are proving rather difficult whilst the COVID-19 restrictions are in place. Postal services are taking much longer than normal and there is the added consideration of whether a party can safely get to a post office in order to post the documents. Parties can ask the court to serve the claim form, however, the court will be facing the same difficulties. There is little guidance as to how the court will be dealing with requests for service of the claim form during this time.
Ordinarily, we use the High Court’s Foreign Process Section (FPS). The process is normally straight forward with a request to the FPS to serve the documents upon the defendant in the requested jurisdiction. From experience, service usually takes between three – four months in most European jurisdictions. However, service outside Europe, such as some African states, can take considerably longer. It very much depends on the jurisdiction in which we are trying to serve.
However, in April 2020 Senior Master Fontaine issued Coronavirus Bulletin 5 which advised that the services of the FPS were now suspended until further notice.
So where does that leave us?
The current government guidance is that parties can attempt service without the intervention of the FPS provided that the manner of service complies with:
- The Service Regulation (EU Regulation applying to EU Member States)
- The Hague Service Convention (bi-lateral convention of 75 signatory states)
- Any other bi-lateral treaty in force which is applicable.
This means that the options available will depend on the specific jurisdiction.
For service within a Member State, direct service - which will depend on what each country permits - should be used. With the permission of the Member State, electronic service can also be applied for in certain jurisdictions.
During the UK’s transition period following Brexit (31 January 2020 – 31 December 2020), EU law still applies to the UK as if it were an EU member state. Therefore, parties can still use the Service Regulation provisions. Service under this Regulation will of course need to be assessed after the transition period.
Therefore, how, where and what we can serve is far from straightforward. The six month time limit no longer seems so generous to effect service outside of the jurisdiction.
What now?
For service outside of the jurisdiction, the guidance from the FPS is that parties should seek local advice in the jurisdiction of service and, if possible, obtain lengthy extensions of time.
The extensions will need to be carefully considered in view of the Lester Viner case; parties are free to agree extensions of time provided they can show that they are taking all reasonable steps to serve within the permitted time, but it is not acceptable to simply diarise the four or six month deadline and decide whether to effect service nearer the time.
Ultimately, the courts have advised that, during these times, parties should be as flexible as possible - whilst ensuring compliance with procedural time limits.
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