In Ndole Assets v Designer M&E Services UK Ltd  EWHC 1148 (TCC) the claimant company was a litigant in person in proceedings brought against the defendant company.
Amongst other things, the defendant sought a declaration that the Claim Form and the Particulars of Claim had not been properly served, or in the alternative that the claim should be struck out because of invalid or ineffectual service by the claimant’s agent, a claims consultancy company run by an unregistered barrister.
The defendant argued that both the service of the Claim Form and the Particulars of Claim by the claimant’s agent amounted to either “commencement” or “prosecution” of the proceedings and was therefore a reserved legal activity pursuant to s.12 of the Legal services Act 2007 (“the 2007 Act”). As an unregistered barrister, the claimant’s agent, was not permitted to carry out reserved legal activities under the 2007 Act. The claimant argued that as Claim Forms and Particulars of Claim were served regularly by process servers, who were not entitled to carry out reserved legal activities, service of such documents could not be a reserved activity under the 2007 Act.
The High Court took a literal interpretation to the meaning of the word “prosecution” of civil proceedings in the 2007 Act. The court held that it must, at the very least, involve the taking of certain procedural steps between the issue of the Claim Form and the handing down of judgment. Of those steps the service of the Claim Form and the Particulars of Claim were amongst the most important. If invalid or ineffective service occurred, it could result in the proceedings being fatally flawed. Accordingly, correct service was a perquisite for the successful prosecution of any action.
Whilst it was correct that process servers, who were not entitled to carry out reserved legal activities, regularly served Claim Forms and Particulars of Claim, they had delegated authority to do so from solicitors. The solicitors on record in any proceedings remained responsible for the service of these documents, even if they had sub-contracted this task to process servers. By parity of reasoning, a litigant in person, who was also entitled to serve such documents, could delegate this task to an agent if they so desired.
A sensible decision by the court that highlights that what matters is the proper service of such documents and not the identity of the person serving them.
Elizabeth Dwomoh / 1st Jun 2017
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