Personal Service in UK Law

Sebastian Holdings Inc. ("SHI"), the Defendant, conducted substantial foreign exchange and equities trading with Deutsche Bank ("DB"), the Claimant. This trading became loss making and when SHI failed to meet margin calls DB took proceedings to recover the debts owed to it.

If the only real redress is damages, how can its measure or scope be affected according to whether the contract is regarded as still subsisting or as at an end? To preserve the bare contractual relationship is an empty formality. The difference is fundamental, for there is no legal substitute for voluntary performance.

Like my noble and learned friend, Lord Bridge of Harwich, I am satisfied that Mr. Vallance's first submission must fail. Prima facie, the process server must hand the relevant document to the person upon whom it has to be served. The only concession to practicality is that, if that person will not accept the document, the process server may tell him what the document contains and leave it with him or near him (see Ord. 65, r. 2 and the notes to that rule in the Supreme Court Practice).

It seems to me that parties serving documents by these means are in a better position if the deemed date for service is certain than if it is open to challenge on factual grounds. This particularly applies to claimants wanting to serve a claim form at the very end of the period available to do so.

But none of these authorities concerns Order 10 rule 1 as it now reads or formerly read, and where (as here) the court is required to construe a detailed statutory code it is in our view dangerous to seek to apply statements made with reference to different statutory codes. The alternatives to personal service are allowed because they found a good working presumption (rebuttable, but still a good working presumption) that they will bring the proceedings to the notice of the defendant.

The first is to notify the defendant that the claimant has embarked on the formal process of litigation and to inform him of the nature of the claim. The second is to enable the defendant to participate in the process and have some say in the way in which the claim is prosecuted: until he has been served, the defendant may know that proceedings are likely to be issued, but he does not know for certain and he can do nothing to move things along.

If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so (the CPR 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve.