Giving judgment in four cases, the Court of Appeal has clarified the law on service of claim forms and extensions of time for service. Neil Hickman sums up the advice

In Collier v Williams and other appeals [2006] EWCA Civ 20, a strong Court of Appeal considered a number of appeals dealing with various points on parts 6 and 7.6 of the Civil Procedure Rules (CPR), which deal respectively with the service of proceedings and the extension of time for the service of the claim form.


Several claimants waited until the end of the limitation period to commence proceedings and then waited until late in the four-month period of the claim form's validity to attempt to serve it. As usual, the result was embarrassing at best, disastrous at worst.


In Collier v Williams itself, insurers informed the claimant's solicitors that they should serve proceedings on a named firm of solicitors, but that firm did not itself confirm that it was instructed to accept service. The Court of Appeal held that this made no difference.


The rejection by District Judge Matthews of the defendant's attempt to strike out the proceedings for non-service was 'plainly right' and the appeal was dismissed. But the attempt would never have been made if the delay in serving the claim form had not given a hostage to fortune.


In Kuenyehia v Enyonam & Another [2006] EWCA Civ 21, the same division of the court considered a case where the claimant's solicitors had corresponded with the defendant by fax but had never obtained either confirmation that service by fax would be accepted or confirmation that solicitors were instructed to accept service.


On the last day for service of the proceedings, the claimant's solicitors couriered the claim form to the offices of the defendant's solicitors and faxed it to the defendant's office. Neither of these actions amounted to good service. It could not be said that there were only 'minor departures' from the permitted means of service.


It will come as no surprise that the Court of Appeal had no truck with the generous decision of Mr Justice Crane (unreported, 10 February 2005) to dispense with service.


In Marshall v Maggs, heard with Collier, Mr Justice Gray had held that a solicitor could be 'acting' for the purpose of CPR 6.5 (thereby preventing postal service on the defendant) even if he was not 'acting so that he could be served'. The Court of Appeal reversed this aspect of the decision. However, that was the end of the good news for the claimant.


The court had previously held in Smith v Hughes [2003] EWCA Civ 656, [2003] 3 All ER 129, that such service was good even if the claimant knew that the defendant was no longer living at the address in question.


Unfortunately for the claimant in Marshall, the defendant had never resided at the address at which the claimant purported to serve him. Holding the purported service to be bad, Lord Justice Dyson observed: 'We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.'


A further difficulty with CPR 6.5(6) was revealed by the decision of Mr Justice Evans-Lombe in Fairmays v Palmer [2006] EWHC 96 (Ch), [2006] All ER (D) 248 (Jan). These proceedings were issued in good time and posted promptly to Mr Palmer's last known address, but it transpired that he had been out of the country when he was 'served' with the proceedings. Following the decision of Mr Justice Collins in Chellaram (No 2) [2002] EWHC 632 (Ch), [2002] 3 All ER 17, the judge held that it was 'a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service or deemed service'.


There was no escape offered by Rolph v Zolan [1993] 1 WLR 1305, which turned on the particular wording of the then County Court Rules. CPR 6.5(1) does, after all, say in terms: 'Except as provided by section III of this part (service out of the jurisdiction), a document must be served within the jurisdiction.'


Mr Justice Evans-Lombe proposed a way of dealing with the difficulty, by issuing concurrent proceedings for service abroad and seeking an order for alternative service of those proceedings at the defendant's last known address within the jurisdiction.


Where (as in Fairmays) the intention is to enforce against assets in England, this may not be open to the objections raised by the Court of Appeal in Knauf UK v British Gypsum [2001] EWCA Civ 1570, [2002] 2 All ER 525, but it is certainly cumbersome and the problem must surely receive the attention of the Rules Committee.


The Court of Appeal in Collier restated the principles to be applied in extending the time for service of proceedings. Guidance on this was given in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 3 All ER 530, where it was said that the power to extend time had to be exercised in accordance with the overriding objective.


However, as Lord Justice Dyson said in Leeson v Marsden, the third of the Collier appeals, 'the strength or weakness of the reason for the failure to serve is not one of a number of factors of roughly equal importance to be weighed in the balance... Where there is no reason, or only a weak reason, for not serving the claim form in time, the court is most unlikely to grant an extension of time'.


In Leeson, the claimant's appeal failed, as did the attempt of the claimant in Marshall v Maggs to seek an extension of time.


A particularly salutary warning is given by Glass v Surrendran, the fourth Collier appeal, where the solicitors issued proceedings on 3 September and wrote to the court in December seeking an extension of time for service. This was refused on paper on 4 January, by which time the time for service had of course expired.


Applying Hashtroodi, the Court of Appeal held that while there might have been grounds for extending time for service of the particulars of claim, there were no grounds for extending time for service of the claim form.


The fact that there was an outstanding application for an extension of time was irrelevant, as was the fact that, in a telephone conversation on 23 December, the court had said that the application would be dealt with promptly.


District Judge Neil Hickman sits at Milton Keynes County Court