Annex C

Service of documents

June 2014

NOTE: THIS PART IS ONLY APPLICABLE IN RELATION TO CASES WHERE THE PETITION WAS PRESENTED BEFORE 6 APRIL 2010 (OR WHERE A RESOLUTION FOR VOLUNTARY LIQUIDATION OR CERTAIN ADMINISTRATION PROCEEDINGS OCCURRED BEFORE THAT DATE).

 

1. Applicable Rules of service

Rule 12.11 states that subject to rule 12.10 (service by post) and 12.12 (service outside the jurisdiction), the provisions of the CPR Part 6, Service of Documents, applies as regards any matter relating to the service of documents and the giving of notice in insolvency proceedings. Where the Insolvency Rules are otherwise silent on service, reference should be made to CPR Part 6.

 

2. Methods of Service – general

Service of any document may be effected by any of the following methods [Note 1]:

1. personal service (see paragraph 5);
2. substituted service (see paragraph 6);
3. first class post (the Insolvency Rules 1986 also allow for service by 2nd class post (see paragraphs 7 - 11));
4. by leaving the document at the proper address of the person to be served [Note 2];
5. by document exchange (DX) in accordance with the relevant practice direction (see paragraph 12);
6. by facsimile (fax) or other means of electronic communication in accordance with the relevant practice direction (see paragraphs 13 and 14); or
7. in such manner as the court may direct. 

The official receiver may need to prepare a certificate of service in some instances, see  paragraph 17 for further details.

 

3. Service on companies

Section 725 of the Companies Act 1985 provides that a document may be served on a company by leaving it at, or sending it by post to, its registered office. Ordinary or registered post may be used. In the High Court failure to serve at that address is an irregularity but it does not nullify the proceedings and the court has the discretion whether or not to set aside such service [Note 3].

 

4. Service on a partnership

Where High Court proceedings are commenced against a partnership in the name of the firm, and that firm continues to exist, service may be effected:  

1. on any one or more of the partners personally;
2. at the principal place of business of the firm within the jurisdiction, on any person having at the time of service the control or management of the partnership business; or
3. by sending a copy of the claim form documents by ordinary first class post to the firm at its principal place of business within the jurisdiction. 

Where such proceedings are commenced in the county court, service of the claim form is effected by the claimant delivering it personally on one of the partners or by the court sending it by first class post to the firm at the address stated in the request for the summons. 

 

5. Personal service

In insolvency proceedings personal service of a document is permissible in all cases [Note 4], even where not expressly required. Personal service of a document is effected by leaving a copy of the document with the individual to be served [Note 5]. The server (often an inquiry agent employed by a solicitor or a county court bailiff) usually hands the document to the person to be served whilst at the same time telling him/her what it is.

Where the person to be served is uncooperative, service may be effected if the individual is informed of what the document is and it is left as nearly in his/her possession or control as possible [Note 6].

A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation [Note 7].

Personal service on a partnership is effected by serving the partners in the name of their firm by leaving it with: 

1. a partner, or
2. a person who, at the time of service, has the control or management of the partnership business at its principal place of business [Note 8]. 

 

6. Substituted service

The term “substituted service” is not used in the CPR but is replaced by the term 'service by an alternative method' [Note 9]. However, where the Insolvency Rules 1986 refer to substituted service, e.g. rule 6.14(2) relating to service of bankruptcy petition, the procedure remains as the Insolvency Rules provide and is still validly known as substituted service.

If, in the case of any document which by virtue of the CPR is required to be served personally, it appears to the court that it is impracticable for any reason to serve that document in the manner prescribed, the court may make an order for substituted service of that document.

An application for an order permitting substituted service-

1. must be supported by evidence (usually showing evidence that the defendant was avoiding service or could not easily be found). The evidence should state the reason an order for an alternative method of service is sought and what steps have been taken to serve by other permitted means.
2. may be made without notice,
   
   and must specify -
3. the method of service, and
4. the date when the document will be deemed to be served. 

The court must be satisfied it was impracticable to serve the document in the manner provided [Note 10].

If an order for substituted service is made under these rules the service is effected by taking such steps as the court may direct to bring the document to the notice of the person to be served. Substituted service may take the form of service by letter, advertisement or by any other method that seems just (including service on a third party).

 

7. Service by post

For a document to be properly served by post, it must be contained in an envelope addressed to the person on whom service is to be effected and pre-paid for either first or second class post [Note 11].

 

8. Where to be served

To be served by post, a document may be sent to the last known address of the person to be served [Note 12].

 

9. Service by first class post

Where first class post is used, the document is treated as served on the second business day after it was posted, unless the contrary is shown [Note 13].

 

10. Service by second class post

Where second class post is used, the document is treated as served on the fourth business day after the date of posting, unless the contrary is shown [Note 14]. Either form of postage may be used, unless under a particular insolvency rule a specific form of post is expressly required, e.g. the sealed and endorsed notice of disclaimer to the liquidator/trustee must be sent by the court by first class post (if it cannot be sent in a number of other ways) [Note 15].

 

11. Presumed date of posting

The date of posting is presumed, unless the contrary is shown, to be the date shown in the post mark on the envelope in which the document is contained [Note 16].

 

12. Service by DX

A document which can be served by first or second class post can also be served by document exchange [Note 17] where: 

1. the party's address for service includes a numbered box at a DX, or
2. the writing paper of the party who is to be served or his/her legal representative sets out the DX box number, and
3. the party or his/her legal representative has not indicated in writing that they are unwilling to accept service by DX.

If this form of service is used, then service will be effected on the second business day following the day on which the document is left at the DX..

Service by DX is effected, unless the contrary is proved, by leaving the document addressed at the numbered box - 

• of the DX party who is to be served, or
• at a DX which sends documents to the party's DX every business day.

 

13. Service by fax

Subject to what is said below, where a document is to be served by fax [Note 18] –  

1. the party who is to be served, or his/her legal representative, must previously have indicated in writing to the party serving -
   
   a) that he/she is willing to accept service by fax, and
   
   b) the fax number to which it should be sent.
2. If the party on whom the document is to be served is acting by a legal representative, the fax must be sent to the legal representative's business address, and
3. A fax number -
   
   a) provided in writing expressly for the purpose of accepting service, where the party to be served is acting in person, or
   
   b) set out on the writing paper of the legal representative of the party who is to be served, orc) set out in a statement of case or a response to a claim filed with the court,

shall be taken as sufficient written indication for the

purposes of paragraph 1 (a).

A legal representative's business address must be within the jurisdiction and is the physical location of his/her office. Where an electronic address or identification is given in conjunction with the business address, the electronic address will be deemed to be at the business address.

 

14. Service by other electronic means

Service by other electronic means, e.g. e-mail, may only take place where the party serving the document and the party on whom it is to be served are both acting by legal representatives and where it is served at the legal representative's business address and the legal representative to be served has previously expressly indicated in writing to the party serving his/her willingness to accept service by this means and has provided his/her e-mail address, or other electronic identification such as an ISDN or other telephone link number [Note 19].

Where a document is served by fax or other electronic means, the party serving the document is not required, in addition, to send a copy by post or DX but, if he/she does not do so and the document is proved not to have been received, then the court may, on any application arising out of that non-receipt, take account of the fact that a hard copy was not sent.

 

15. Deemed service

A document served in accordance with CPR is deemed to be served on the dates provided in Part 9.

 

16. Power of court to dispense with service

When the party to be served is aware of the substance of the document or when insisting on service would conflict with the overriding objective (see paragraph 19.16) service may be dispensed with.

 

17. Certificate of service

Where a rule, practice direction or court order requires a certificate of service [Note 20], the certificate must state the details set out below: -

 

Method of service	Details to be certified
Post	Date of Posting
Personal	Date of personal service
DX	Date of delivery to DX
Delivery of document to or leaving at a permitted place	Date when document delivered or left at the permitted place
Fax	Date and time of transmission
Other electronic means	Date of transmission and means used
Alternative method permitted by the court	As required by the court

 

18. Service outside the jurisdiction  

Insolvency Rule 12.12 provides for service outside the jurisdiction.

A bankruptcy petition may, with the leave of the court, be served outside England and Wales in such manner as the court may direct [Note 21] (see also Chapter 45).

Where for the purposes of insolvency proceedings any process or order of the court, or other document, is required to be served on a person who is not in England or Wales, the court may order service to be effected within such time, on such person, at such place and in such manner as it thinks fit, and may also require such proof of service as it thinks fit [Note 22].

An application under this rule must be supported by a witness statement. Where the official receiver is making the application a report may be filed in court instead of a witness statement, see paragraph 19.85 [Note 23]. The witness statement or report should state; 

 

1. the grounds on which the application is made, and
2. in what place or country the person to be served is, or probably may be found [Note 24].