Part 7
Service of Court documents
December 2010
Transitional provisions for April 2010 Rules changes
The Insolvency (Amendment) Rules 2010 (IAR) came into force on 6 April 2010. For 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), the Rules described in this part will apply and the guidance and advice therein should be followed. Full details of the transitional provisions can be found in schedule 4 to the Insolvency (Amendment) Rules 2010 and a summary is available at Annex A. For the purposes of this part reference will only be made to the petition date in the transitional provisions.
For cases where the petition was presented before 6 April 2010 (or where any of the exceptions noted above apply), the Rules prior to the introduction of The Insolvency (Amendment) Rules 2010 will continue to apply and the guidance and advice in Technical Manual Chapter 19 Part 7 (issued March 2001) may be followed. This is attached at Annex B and has been renumbered consecutively (1, 2, 3 etc…) to avoid confusion with other paragraphs in this chapter.
19.80 Applicable rules of service for court documents
Except where different provision is made in the Rules or the Act, 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 [Note 1] [Note 2]. Where the Insolvency Rules are otherwise silent on service, reference should be made to CPR Part 6.
‘Jurisdiction’ is defined by the CPR as England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales [Note 3].
19.81 Definition of court documents
Court documents are defined in rule 12A.16(1) as petitions, applications, documents relating to petitions and applications, and court orders, which are required to be served by any provision of the Act or the Rules.
Rule 12A.16(2) provides that CPR Part 6 should not be applied to the service, within the jurisdiction, of the following:
The Rules contain specific service requirements for petitions , see Chapter 45 – Proceedings up to order.
Applications made to the court by the official receiver which require service, and court orders which, according to the Act or Rules, 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.
19.82 Court documents requiring service
(Amended March 2011)
Where the official receiver makes an application to the court under the Act or the Rules, the Rules require that the official receiver 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 4]. Where the official receiver serves a court document a ‘certificate of service’ must be completed and filed at court within 21 days of service having occurred (see paragraph 19.95 for claim forms and paragraph 19.95A for documents that are not claim forms). The Court Service form N215 [Note 83] should be used for the certificate of service.
Legal advice has confirmed that applications made by the official receiver to the court, such as for public examinations, suspensions of discharge and income payments orders, are all court documents which require service. Therefore CPR Part 6 will apply to the service of all such applications. Any associated cost such as a process server’s expenses is covered by the administration fee.
19.83 Delivery of non-court documents
Where, under the Act or the Rules, any notice or other document, which is not considered a ‘court document’, is required to be given, sent or delivered, specific provisions are provided in the Rules as to how these documents should be treated.
Rules 12A.1 to 12A.15 provide for the delivery of non-court documents using the following methods:
19.84 CPR Part 6 and Practice Directions
CPR Part 6 and the accompanying practice directions (6A and 6B) contain complex rules for service of court documents both within and outside of the jurisdiction. There are also distinctions drawn between 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 [Note 11]:-
Routine applications to court made by the official receiver such as for public examinations, suspensions of discharge and income payments orders are, therefore, considered as claim forms for the purpose of CPR Part 6.
The following paragraphs will look at the methods of service available under CPR Part 6 for claim forms and other documents, served within the jurisdiction. For guidance as to service outside the jurisdiction see paragraphs 19.96 to 19.97A.
19.85 Methods of service of court documents within the jurisdiction
Part 6 of the CPR provides that service of a claim form, notice or other document, may be effected by any of the following methods [Note 12] [Note 13]:
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 any method permitted under the Companies Act 2006 (in the case of a limited liability partnership, as amended by the Limited Liability Partnerships Act 2000) [Note 14] [Note 15]. The Companies Act 2006 provides that a document may be served on a company by leaving it at, or sending it by post to, the company’s registered office [Note 16].
19.86 Personal service of court documents
The CPR Part 6 demands that where required by another part of the CPR, any legislation, a practice direction or a court order, a claim form or other document, must be served personally [Note 17] [Note 18]. In insolvency proceedings, documents must be served personally if required by the Act or the Rules, for example service of a bankruptcy petition or an order for private examination. Otherwise personal service is available but not mandatory.
The CPR states that a claim form is served personally:-
These same requirements as to effective personal service apply to service of a document other than a claim form [Note 23].
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 24].
Other than an exclusion on personal service in proceedings brought against the Crown, the only exception to personal service 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 [Note 25] [Note 26] [Note 27] [Note 28].In all such cases the documents must be served at the business address for that solicitor.
19.87 Service by post, an alternative service provider or by document exchange (DX)
The CPR rules regarding service by first class post, an alternative service provider and DX apply to claim forms and other court documents alike. There is no provision for second class post to be used.
Under CPR Part 6, service by first class post, DX or other service which provides for delivery on the next business day is effected by [Note 29]:
Service by DX may take place only where:
19.88 Service by leaving the court document at a specified place
Under CPR Part 6 service of a court document may be effected by the official receiver leaving it at the place which, under the rules, is the proper address for service. This place may be :-
a) the business address of a solicitor, within the jurisdiction or in any EEA state, whom the individual has instructed to accept service [Note 30].
b) the address within the jurisdiction which the individual has given for the purpose of being served [Note 31]. This rule may apply to parties to proceedings who reside or carry on business out of the jurisdiction but have access to an address which can be used for the purpose of service within the jurisdiction.
c) where no service address has been provided, the address specified in CPR rule 6.9 as being the appropriate place for service. In the case of an individual this is the usual or last known residence. See paragraphs 19.92 and 19.93 for further information on where court documents can be served.
19.89 Service of court documents by fax or other electronic means
The CPR rules regarding service by fax or other electronic means apply to claim forms and other court documents alike.
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 official receiver [Note 32]:
The following are to be taken as sufficient written indications for the purposes of the above [Note 33]:
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 34]. 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 35].
Where the official receiver intends to serve a document by electronic means (other than by fax) he/she must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received) [Note 36].
Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy [Note 37].
Where the official receiver issues a document by electronic means, the document must contain or be accompanied by a statement informing the recipient that they may request a hard copy and providing 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 [Note 38].
Although the CPR provide for delivery of documents by electronic means, the Legislative Reform (Insolvency)(Miscellaneous Provisions) Order 2010 (LRO) and the Insolvency (Amendment) Rules 2010 (IAR) introduced provisions to align the insolvency legislation with the CPR in respect of electronic delivery of documents and other information. With effect from 6 April 2010, the Rules provide that office-holders may send documents (including those classed as claims forms, notices and any other documents), by electronic means provided that the intended recipient has consented to electronic delivery and has provided an electronic address for delivery, as per CPR Practice Direction 6A [Note 39] [Note 40].
19.90 Substituted service - service of court documents by an alternative method or at an alternative place
The term ‘substituted service’ is not used in the CPR but is replaced by the term 'service by an alternative method or at an alternative place' [Note 41] [Note 42]. Where the Insolvency Rules 1986 refer to substituted service, e.g. rule 6.14(2) relating to service of a 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, the Act or the Rules, is required to be served, it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by the CPR, the court may make an order permitting service by an alternative method or at an alternative place [Note 43].
An application for an order permitting service of a document by an alternative method or place [Note 44]:
If the application for an order is made after the applicant has already taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must also 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 46]. The court may then order that 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 47].
An order under this rule must specify [Note 48]:
a. the method or place of service;
b. the date on which the document will be deemed served; and
c. the period for –
i. filing an acknowledgement of service;
ii. filing an admission; or
iii. filing a defence.
For an order to be made, the court must be satisfied it was impracticable to serve the document in the manner provided [Note 49].
If an order for service by an alternative method or at an alternative place is made under these rules, 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 CPR practice direction 6A – Service within the United Kingdom, paragraph 9.3.
19.91 Power of the court to dispense with service of court documents
The court may dispense with service in exceptional circumstances. An application for an order to dispense with service may be made at any time and [Note 50] [Note 51]:
19.92 Where to effect service – claim forms and applications treated as claim forms
As stated above, routine applications made to the court by the official receiver, such as for public and private examinations, suspensions of discharge and income payments orders, are considered as claim forms for the purpose of applying CPR Part 6 [Note 52] (see paragraph 19.84).
A claim form must generally be served within the jurisdiction [Note 53]. There are some exceptions to this rule, mainly where a business address of a solicitor has been provided for service, or where a contract contains specific terms regarding service in the event that a claim is started in relation to that contract [Note 54] [Note 55]. For information regarding service of documents outside of the jurisdiction see paragraphs 19.96 to 19.97A.
Except where the CPR, the Act or the Rules have specified personal service, or where a business address for a solicitor has been provided for service, the defendant may be served with the claim form at an address within the jurisdiction which the defendant has given for the purpose of being served [Note 56]. Where the defendant does not provide an address at which he/she may be served, and personal service or service on a solicitor do not apply [Note 57], the CPR state that the claim form must be served on the defendant at the place shown in the following table [Note 58]:
|
Nature of defendant to be served |
Place of service |
|
1. Individual |
Usual or last known residence |
|
2. Individual being sued in the name of a business |
|
|
3. Individual being sued in the business name of a partnership |
|
|
4. Limited liability partnership |
|
|
5. Corporation (other than a company) incorporated in England and Wales |
|
|
6. Company registered in England and Wales |
|
|
7. Any other company or corporation |
|
When effecting service on an individual under points 1,2, or 3 in the table above and where the official receiver has reason to believe that the individual no longer resides or carries on business at that address he/she must take reasonable steps to find the individual’s current residential or business address [Note 59]. Where a current address can be ascertained the documents must be served at that address [Note 60]. If the current address cannot be found, consideration should be given as to whether there is an alternative place where the application may be served, or whether service can be effected by an alternative method (see paragraph 19.90) [Note 61].
19.93 Where to effect service – court documents other than those to be treated as claim forms
The CPR provides slightly different rules for the service of notices and other court documents which are not considered claim forms. The CPR states that a party to proceedings must give an address at which that party may be served with documents relating to those proceedings. The address must include a full postcode unless the court orders otherwise [Note 62] [Note 63]. The address for service must be either the business address, either within the United Kingdom or any EEA state, of a solicitor acting for the party to be served, or an address within the United Kingdom at which the party resides or carries on business or where service can be effected [Note 64] [Note 65].
Unless personal service is required under the CPR, the Act or the Rules, or the court orders otherwise, any document to be served in the proceedings must be sent, transmitted to, or left at the party’s address for service [Note 66].
An application made by the official receiver in insolvency proceedings will not normally be by claim form and it is quite likely that the insolvent who is to be served with the documents will not have provided an address for service. In these circumstances the guidance in paragraph 19.92 should be followed for the service of all related court documents.
A claim form (or an application which is to be treated as a claim form) served in accordance with CPR Part 6, is deemed to be served on the second business day after completion of the relevant event in the following table [Note 67] [Note 68]:
|
Method of service |
Step required |
|
First class post, document exchange (DX), or other service which provides for delivery on the next business day |
Posting, leaving with, delivering to or collection by the relevant service provider |
|
Delivery of the document to or leaving it at the relevant place |
Delivering to or leaving the document at the relevant place |
|
Personal service under rule 6.5 |
Completing the relevant step required by rule 6.5(3) – see paragraph 19.86 |
|
Fax |
Completing the transmission of the fax |
|
Other electronic method |
Sending the email or other electronic transmission |
The table at Annex 5 provides the information required to determine when notices and documents other than a claim form are deemed served when served in accordance with CPR Part 6. Various examples of when documents other than a claim form are deemed served are shown in CPR Practice direction 6A – Service within the United Kingdom, paragraphs 10.1 to 10.7.
19.95 Certificate of service of a claim form (or equivalent )
(Amended March 2011)
When serving a claim form, the claimant must file a certificate of service [Note 83] within 21 days of service of the claim form, unless all of the defendants to the proceedings have filed acknowledgments of service within that time [Note 69]. The certificate of service must state the category of address at which the claimant believes the claim form has been served (for example solicitor’s business address, usual or last known residence, usual or last known place of business) [Note 70]. The certificate must also set out details as shown in the following table [Note 71]:
|
Method of service |
Details to be certified |
|
Personal service |
Date of personal service |
|
First class post, DX or other service which provides for delivery on the next business day |
Date of posting, or leaving with, delivering to or collection by the relevant service provider |
|
Delivery of a document to or leaving at a permitted place |
Date when document delivered or left at the permitted place |
|
Fax |
Date of completion of the transmission |
|
Other electronic means |
Date of sending the email or electronic transmission |
|
Alternative method or place permitted by the court |
As required by the court |
19.95A Certificate of service of a notice or document other than a claim form
(Amended March 2011)
Where the CPR, the Act or the rules require a certificate of service [Note 83] for a notice or document other than a claim form, the certificate must state the details required by the following table [Note 72]:
|
Method of service |
Details to be certified |
|
Personal service |
Date and time of personal service |
|
First class post, DX or other service which provides for delivery on the next business day |
Date of posting, or leaving with, delivering to or collection by the relevant service provider |
|
Delivery of a document to or leaving at a permitted place |
Date and time when the document delivered or left at the permitted place |
|
Fax |
Date and time of completion of the transmission |
|
Other electronic means |
Date and time of sending the email or other electronic transmission |
|
Alternative method or place permitted by the court |
As required by the court |
19.96 Service outside the jurisdiction – general (amended September 2012)
In the context of insolvency proceedings, service outside the jurisdiction is the service of court documents outside England and Wales. The court rules relating to service outside the jurisdiction [note 73] are applied to insolvency proceedings by the Rules with such modifications as the court may direct [note 74] [note 75].
19.96A Service outside the jurisdiction – permission of the court (amended September 2012)
The official receiver, when acting as liquidator for a company that has its COMI (see paragraph 41.62) within the EU (see paragraph 41.6), does not need the permission of the court to serve a document if the document is to be served on a person within the EU [note 76].
In all other cases, the official receiver (whether acting as trustee, liquidator, receiver and manager or official receiver) will need the permission of the court to serve the document (see paragraph 19.96B).
19.96B Application for permission to serve outside the jurisdiction (inserted September 2012)
An application for permission to serve outside the jurisdiction (see paragraph 19.96A) must set out [note 77]:
The court will not give permission (see paragraph 19.96C) unless it is satisfied that England and Wales is the proper place in which to bring the claim or make the application [note 78], but it is anticipated that the making of the insolvency order will be sufficient grounds to satisfy the court.
Annex G is a precedent on which official receivers may base such an application.
19.96C Granting of permission to serve outside the jurisdiction (inserted September 2012)
Where the court gives permission for the document(s) to be served outside the jurisdiction, it will specify the grounds within which the defendant may (where appropriate) [note 79];
19.96D Directions as to method of service
In addition to granting permission to serve outside the jurisdiction (see paragraph 19.96C), the court may give directions about the method of service to be used (see paragraphs 19.97 to 19.97D) and give permission for other documents in the proceedings to be served outside of the jurisdiction [note 80].
19.97 Method of service (within the UK) (amended September 2012)
Where a claim or other form of document is to be served on a party in Scotland or Northern Ireland it can be served by any of the methods permitted for a similar form of document within the jurisdiction, unless it is to be served personally or the court orders otherwise [note 81]. For guidance on methods of service of a claim form or other court document within the jurisdiction see paragraph 19.85.
19.97A Method of service (outside the UK and outside the EU) (inserted September 2012)
Where service of a claim form or other document is to be effected on a party outside the UK and outside the EU (see paragraph 41.6), it may be served in accordance with the various methods provided for in the relevant court rule [note 82].
In practice, the methods of service provided for under this rule are complicated and potentially cumbersome, so when making an application to court for permission to serve outside the jurisdiction (see paragraph 19.96B) the official receiver should provide as much detail as possible regarding the known whereabouts of the person on whom the document is to be served, and seek directions from the court as to the method of service to be employed.
See HERE for details of Royal Mail international ‘signed for’ service.
19.97B Method of service (outside the UK but within the EU) (inserted September 2012)
The court rules [note 83] provide that the method of service of a document within the UK (but outside the UK) must be in line with the relevant EC Regulation [note 83a]. Under that Regulation [note 83b], Member States are free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgment of receipt. Since this provision relates to official bodies/organisations of the Member State (rather than parties to the litigation), the service must be conducted through the Court Service.
In practical terms this is achieved by sending the documents for service to the Foreign Process Section of the High Court with an envelope for the Section’s use. The papers will be sealed with the court seal in the normal way and sealed in the envelope. The official receiver will then be asked to post the same and obtain a receipt of posting in the name and address of the Foreign Process Section, so that proof of delivery will be returned to that Section. See HERE for details of Royal Mail international ‘signed for’ service.
19.97C Translation of documents not necessary – but advisable in some circumstances (inserted September 2012)
It is not necessary to provide a translation of the documents, but that is advisable if the intended recipient is known not to understand English.
Where the intended recipient is known to understand English, translation should be avoided on the grounds of cost.
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