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: 

1. a winding-up petition,
2. a bankruptcy petition,
3. any document relating to such a petition, or
4. an administration, winding-up or bankruptcy order.

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

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:

• Personal delivery – Personal delivery of a notice or other document is permissible in any case [Note 5].
• Postal delivery – Unless in any particular case some other form of delivery is required by the Act, the Rules or an order of the court, postal delivery of a notice or other document is permissible, provided that the rules for postal delivery laid down in CPR Part 6 are adhered to [Note 6]. The CPR requires that postal delivery be effected by first class post, document exchange (DX) or other service which provides for delivery on the next business day [Note 7].
• Electronic delivery – Unless in any particular case some other form of delivery is required by the Act, the Rules or an order of the court, electronic delivery of a notice or other document is permitted providing that the recipient has consented to electronic delivery (either specifically or generally) and has provided an electronic address for delivery [Note 8]. An office-holder using this method must provide details of how a hard copy can be requested by the recipient [Note 9]
• Use of websites – An office-holder may satisfy their requirement to give, send or deliver a notice or other document to any person by sending that person a notice stating that the document is available for viewing and downloading on a website. The sender must specify the address of that website together with any password necessary to view and download the document from that site; and containing a statement that a hard copy of the document can be provided upon request. A contact telephone number, e-mail address and postal address must be provided via which a hard copy can be requested [Note 10]. 

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]:- 

1. an application commencing insolvency proceedings (including a winding-up petition, a bankruptcy petition, or an administration application), or
2. an application within insolvency proceedings against a respondent.

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]: 

1. personal service (see paragraph 19.86);
2. first class post, document exchange (DX) or other service which provides for delivery on the next business day (see paragraph 19.87);
3. leaving it at a specified place (see paragraph 19.88);
4. fax or other means of electronic communication (see paragraph 19.89); or
5. any method authorised by the court under CPR rule 6.15 or 6.27 (see paragraph 19.90 – substituted service).

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:-

• on an individual by leaving it with that individual [Note 19].
• on a company or corporation by leaving it with a person holding a senior position within the company or corporation [Note 20]. A person holding a senior position is defined as being a director, the treasurer, the secretary of the company, a chief executive, a manager or other officer of the company [Note 21].
• on a partnership (where the partners are being sued in the name of the firm) by leaving it with a partner or a person who, at the time of service, has the control or management of the partnership business at its principal place of business [Note 22].

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]:

1. placing the document in post box;
2. leaving the document with or delivering the document to the relevant service provider; or
3. having the document collected by the relevant service provider.

Service by DX may take place only where:

1. The address at which the party is to be served includes a numbered box at a DX, or
2. The writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number (see also paragraph 19.88), and
3. The party or the solicitor acting for that party has not indicated in writing that they are unwilling to accept service by DX. 

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]:  

1. that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
2. the fax number, e-mail address or other electronic identification to which it must be sent.

The following are to be taken as sufficient written indications for the purposes of the above [Note 33]: 

1. a fax number set out on the writing paper of the solicitor acting for the party to be served;
2. an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
3. a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim (application) filed with the court.

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]: 

1. must be supported by evidence (The evidence should state the reason an order for an alternative method of service is sought, what alternative method or place is proposed, and the reason why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed [Note 45]), and
2. may be made without notice.

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]:

1. must be supported by evidence; and
2. may be made without notice. 

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]:

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.

19.94 Deemed service

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]:

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 )

When serving a claim form, the claimant must file a certificate of service 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]:

19.95A Certificate of service of a notice or document other than a claim form

Where the CPR, the Act or the rules require a certificate of service for a notice or document other than a claim form, the certificate must state the details required by the following table [Note 72]:

19.96 Service outside the jurisdiction - permission of the court

CPR Part 6 applies to the service of court documents outside of the jurisdiction with such modifications as the court may direct [Note 73].

Where for the purpose of any insolvency proceedings, an application or order of the court, or other document, is required to be served on a person who is not in England or Wales, CPR Part 6 provides that in certain circumstances such service may be effected without the prior permission of the court. Legal advice has been sought on this point and the guidance is that where the official receiver needs to serve court documents outside of the jurisdiction he/she is advised to seek the prior permission of the court [Note 76]. The CPR rules setting out when permission is not required are complex and do not naturally fit with insolvency proceedings [Note 74]. In addition, when permission is not sought, a document has to in any case be filed with the court and served detailing the basis upon which it was determined that permission was not required [Note 75].

An application for permission must set out [Note 77]: 

1. the grounds for the application (see paragraph 19.97);
2. that the official receiver believes the proceedings have a reasonable prospect of success; and
3. the address of the person upon whom the document(s) is to be served, or if not known, in what place the person is, or is likely, to be found.

The court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim / make the application [Note 78].  Where the court gives permission for the claim form or other document to be served out of the jurisdiction, it will specify the periods within which the defendant may (where appropriate) [Note 79]:

1. file an acknowledgement of service;
2. file or serve an admission;
3. file a defence; or
4. file any other response or document required under the Act or the Rules.

In addition the court may give directions about the method of service to be used and give permission for other documents in the proceedings to be served outside of the jurisdiction [Note 80]. Where service is to be undertaken outside the UK, the official receiver should include in the application to the court, a request for directions as to the method of service (see paragraph 19.97A). 

19.97 Grounds for the application

There are specific grounds upon which an application to the court for permission to serve a claim form or other documents outside the jurisdiction in insolvency proceedings must be made which are set out in the CPR Practice Direction 6B (Service out of the jurisdiction). The application must state under which of these grounds the application for permission is being made. Unfortunately, none of the grounds in Practice Direction 6B specifically relate to insolvency proceedings. The official receiver is advised to state that the application is being made under the ground in paragraph 3.1(20)(a) of the Practice Direction  which provides that the claim is being made under any enactment which allows proceedings to be brought and those proceedings are not covered in any of the other grounds [Note 81]. In effect this is stating that the claim/application is being made under the insolvency legislation which governs the powers of the official receiver, i.e. the Act and the Rules. The official receiver should then provide an explanation as to the legislative provisions under which he is making the application (e.g. under section 279 for a suspension of discharge, or section 290 for a bankrupt’s public examination etc…). 

19.97A Method of service

Where a claim form or other document is to be served on a party in Scotland or Northern Ireland it can be served by any of the methods permitted for service of a similar form or document within the jurisdiction, unless it is to be served personally or the court orders otherwise [Note 82]. For the methods of service of a claim form or other court document within the jurisdiction see paragraph 19.85.

Where service of a claim form or other document is to be effected on a party outside of the United Kingdom, it may be served in accordance with the various methods provided for by CPR 6.40(3). In practice, the methods of service provided for under this rule are complicated and potentially cumbersome, therefore, when making an application to the court, the official receiver should provide as much detail as possible regarding the known whereabouts of the insolvent, or other person upon whom the claim form / court document is to be served, and seek directions from the court as to the method of service to be employed. 

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