Part 7 – Service of court documents – the legislation
The Insolvency (Amendment) Rules 2010 came into force on 6 April 2010 and altered the rules for the service of court documents. The changes only apply to cases where the petition was presented on or after 6 April 2010 (unless in a company case there was a voluntary winding up resolution or certain administration proceedings prior to that date). This part of the chapter will provide advice and guidance based on the post 6 April 2010 changes. For cases where the petition was presented before 6 April 2010 the official receiver should follow the guidance in Annex C.
The Civil Procedure Rules 1998 (CPR) Part 6 applies in relation to the service of court documents within, and outside of, the jurisdiction with such modifications as the court may direct, except where different provision is made in the Insolvency Act 1986 or the Insolvency Rules 1986 [Note 1]. Where the Insolvency Rules are otherwise silent on service CPR Part 6 applies. ‘Jurisdiction’ is defined as England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales [Note 2]. Applications made to the court by the official receiver which require service, and court orders which, according to the Insolvency Act 1986 or the Insolvency Rules 1986, require service by the official receiver, are ‘court documents’ and CPR Part 6 must be followed to effect service, unless the Act or the Rules state otherwise.
CPR Part 6 and the accompanying Practice Directions 6A and 6B contain complex rules for service of court documents both within and outside of jurisdiction. The CPR draws a distinction between the service of a claim form and service of a document other than a claim form. In insolvency proceedings, the court documents to be treated as a claim form for the purposes of applying the CPR are:
Legal advice obtained states other applications made by the official receiver to court, such as public examinations, suspensions of discharge, charging orders and income payments orders are to be considered claim forms requiring service. CPR Part 6 applies to the service of all such applications and any associated cost, for example expenses of a process server, will be covered by the administration fee where the official receiver is fulfilling his/her general duties. Where the application concerns the realisation of assets, for example obtaining a charging order, or the distribution of funds to creditors the associated costs should be charged to the estate. See paragraph 36.9 further details.
In insolvency proceedings court documents requiring service are defined as petitions, applications, documents relating to petitions and applications, and court orders [Note 4]. The Insolvency Rules contain specific service requirements for a winding-up petition, a bankruptcy petition, any document relating to such a petition, or an administration, winding-up or bankruptcy order (see Chapter 45 for further information) [Note 5].
Where the official receiver makes an application to the court requiring service he/she shall serve a copy of the application, endorsed with the venue for the hearing, on the respondent named in the application, unless the court directs otherwise [Note 6]. After serving a court document the official receiver must complete and file a “certificate of service” (Ministry of Justice CPR Form N215 available here) at court within 21 days of service having occurred (see paragraphs 19.136 and 19.137 for more information on “certificates of service”).
Delivery of non-court documents can be made by the following methods:
Service of a claim form (see paragraph 19.56 for details of what constitutes a claim form), notice or other document may be effected by any of the following methods:
Service of a claim form or other document on a company or a limited liability partnership may be effected by any of the methods listed above or by leaving it at, or sending it by post to, the company’s registered office [Note 15].
Personal service of a claim form or other document is mandatory where it is demanded by the CPR, any other legislation, including the Insolvency Act 1986 and the Insolvency Rules 1986, a practice direction or court order [Note 16]. In insolvency proceedings, documents which must be served personally include service of a bankruptcy petition and an order for private examination [Note 17]. In all other instances personal service is available but not mandatory.
A claim form is served personally:
The above requirements as to effective personal service apply to the service of a document [Note 22].
The server (often an enquiry 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 as possible [Note 23].
There are two exceptions to personal service. The first is in proceedings brought against the Crown [Note 24]. The second is where the claimant has been notified in writing that a solicitor (with a business address within the jurisdiction or in any European Economic Area (EEA) state) is instructed to accept service. In all such cases the documents must be served at the business address for that solicitor [Note 25].
Service of both claim forms and documents, where allowed (see paragraph 19.110), must be by first class post, an alternative service provider who ensures next business day delivery or DX. There is no provision for second class post to be used. Service by first class post or other service provider is effected by:
Service by DX may take place only where:
Service of both claim forms and documents, where allowed (see paragraph 19.110), may be effected by leaving it at one of the following addresses:
Service of both claim forms and documents, where allowed (see paragraph 19.110), may be effected by fax or other electronic means. Where a document is to be served by fax or other electronic means the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving:
The following are to be taken as sufficient written indications for the purposes of the service of a claim form or other document by fax or other electronic means:
Where a party indicates or is deemed to have indicated that they will accept service by fax, the fax number given by that party must be at the address for service [Note 33]. Where a party indicates that they will accept service by electronic means other than fax, the e-mail address or electronic identification given by that party will be deemed to be at the address for service [Note 34]. Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy [Note 35].
A party intending to serve a claim form or document electronically other than by fax) must firstly obtain the recipient’s agreement, and discover whether there are any limitations to the electronic receipt of documents, such as the format the documents can be sent and any maximum size of attachments [Note 36].
From 6 April 2010, the official receiver or an office-holder has been able to send any document (including those classed as claims forms and notices), by electronic means provided that the intended recipient has consented to electronic delivery and has provided an electronic address for delivery [Note 37].
In insolvency proceedings the claim form or document sent electronically by the official receiver or office-holder must contain, or be accompanied by, a statement informing the recipient that a hard copy may be requested together with a telephone number, email address and postal address for making such a request. Where a hard copy of a document is requested, it must be sent within 5 business days of receipt of the request, free of charge [Note 38].
The term ‘substituted service’ is not used in the CPR which uses the term 'service by an alternative method or at an alternative place'. The Insolvency Rules 1986 refer to “substituted service”, and this remains a valid term for service by an alternative method or at an alternative place within insolvency proceedings. The guidance in paragraphs 19.123 to 19.126 follows the CPR and refers to “substituted service” as service by an alternative method or at an alternative place.
The court may, if shown good reason, make an order authorising service by a method or at a place not otherwise permitted by the CPR [Note 39]. An application to court for an order permitting service of a document by an alternative method or place, for example at the address of a person who knows the other party, by e-mail to the party’s employer or by voice mail:
The court will only make an order for service by an alternative method or at an alternative place if it is satisfied that service under the CPR is impracticable [Note 41].
An application for an order may be made after the applicant has already taken steps to bring a claim form or document to the attention of the person to be served by an alternative method or at an alternative place but it must be supported by evidence stating what alternative method or alternative place was used, when the alternative method or place was used, and why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place [Note 42]. The court, after considering the application, may order the steps already taken to bring the claim form, notice or other document to the attention of the individual by an alternative method or at an alternative place is good service [Note 43].
An order for service by an alternative method or at an alternative place must specify:
If an order for service by an alternative method or at an alternative place is made 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. Alternative service may take the form of service by letter, advertisement or by any other method that seems just (including service on a third party). Various examples of how service by an alternative method or at an alternative place may be effected can be found in paragraph 19.124.
The courts have granted permission to serve a claim form or a document via Twitter and Facebook in a number of cases. The official receiver should obtain agreement of Technical Section before applying to the court for permission to deliver documents by means of social media.
The court may dispense with service of a claim form or document in exceptional circumstances. An application for such an order to dispense with service may be made at any time and: