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Alex J.
Alex J., Solicitor
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Is service of aParticulars of Claim in the County Court by

Customer Question

Is service of aParticulars of Claim in the County Court by recorded delivery which was returned by the Royal Mail as there was no one to sign for it deemed to be service or is it necessary to send by ordinary first class post
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

My name is XXXXX XXXXX I will assist you.

The agreed methods of service are under Civil Procedure Rule 7.5 -http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07#7.5

I am afraid this does not include recorded post as the person has to actually sign for it to receive it. If it is convenient I would deliver it to the address by hand that way you can always then submit a witness statement or affidavit into court to confirm that service was effective. Alternatively send it via first class post, take a photo copy of the stamped addressed envelope and keep a copy of the cover letter and you can then file a certificate of service at the court.

Can I assist any further?

Kind regards

AJ
Customer: replied 3 years ago.
Hi AJ
Thank you for your answer. I have looked up Civil Procedure rule 7.5. Are you sure that recorded delivery does not incorporate first class post. A firm of solicitors purported to serve me with a Particulars of Claim at my business address but I was not there to sign for it and it was returned by Royal Mail to sender. They are now out of time and are claiming that the act of posting was service not receipt by me. I think they would be right in a contractual matter but not in service of court proceedings. Is there any case law to back up your assertion. Or do you have authority to say that recorded delivery is not first class post

Many thanks

Charles
Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

Recorded delivery will count in the same way as first class but only if it gets accepted if it does not get accepted and signed for at the address where it has been sent then it has not been served. That is why first class is best because there is no opportunity to reject it.

Kind regards

AJ

Customer: replied 3 years ago.
Hi Alex
I agree with you but I need authority to back it up. I want to apply to the court to strike out because out of time service. I can't find authority can you?

Many thanks and kind regards

Charles
Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

You do not need authority this is the codified part of English law. If some one does not comply with a civil procedure rule you have the right to apply for a strike out under CPR 3.4(2).

But if someone is going to serve the proceedings anyway then I would question the merit in doing this. You may just be better of brining this to the Courts attention when it comes to the issue of deciding costs.

Kind regards

AJ

Customer: replied 3 years ago.
Hi

Many thanks . The whole point is that they are now out of time for service of proceedings so even if they did serve them now they would be out of time. I still do not understand where you get your authority from. Where in rule 7.5 does it make clear that recorded delivery does not count as service even if it is undelivered or that recorded delivery does not count as first class post in any event. Is there no case law on the matter?

Charles

Expert:  Alex J. replied 3 years ago.
HiThank you.It is not about a precedent but practically speaking how can the proceedings and statements of case be deemed as served if they are rejected at the front door and returned to you?Recorded delivery can be the same as first class delivery but only if the delivery is accepted.If the service is now out of time they will have to apply to court to have the time limit extended.I look forward to hearing from you.Kind regards AJ
Customer: replied 3 years ago.
Hi
So you are sure service will not be deemed? In that case the Judge will have no option but to grant the application to strike out. I understand there was a case recently where a judge refused to extend time limits. In this case the action occurred 6 years and 4 months ago. The solicitors have been aware of the case for several years and they have served the papers at the very last minute without having adhered to pre action protocol. In those circumstances can you see any Judge extending the time for service or deeming service ?

Many thanks

Charles
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

The judge is not obliged to strike the case out, it is a discretionary power if you look under CPR rule 3.4(2) it says the Judge "May" strike out a statement of case, not "must".

If the action occurred 6 years and four months ago it maybe statute barred under the Limitation Act 1980.

If it is not statute barred whether the judge extends the time or not will depend on the facts, but the judge will obviously take this into account when decided the issue of costs.

Kind regards

AJ
Customer: replied 3 years ago.
Hi Alex

Thank you very much for your excellent advice. It is much appreciated

Charles
Expert:  Alex J. replied 3 years ago.
Hi,

No problem.

I wish you the best of luck.

Any feedback is gratefully received.

Kind regards

AJ
Alex J., Solicitor
Category: Law
Satisfied Customers: 3557
Experience: Solicitors 2 years plus PQE
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Customer: replied 3 years ago.
Hi
I have found a case Venulum Property Investments v, Space Architecture which would appear to suggest that coupled with the new CP rules the judge will have no option but to strike out the case as being outside the limitation period. Do you agree?

Charles
Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

I have found the case. It is in the technology and construction court so I will have to read it to check the relevance.

I will revert to you as soon as possible.

Kind regards

AJ
Customer: replied 3 years ago.
Hi

If you go to the Mills and Reeve website updated 29th may2013 there is a very useful article which sets out the position. The article is entitled Be Particular about Particulars

Charles
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I will review it in conjunction with the mentioned case.

Kind regards

AJ

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