By fax

Writing in the Law Society Gazette of 28 October District Judge Stephen Gerlis said practically every reported case concerning service shared the same characteristic-reckless practice of last-minute service. In Thorne v Lass Salt Garvin (a firm) [2009] EWHC 100(QB) the defendants were a firm of solicitors. Just a few hours before the limitation period was due to expire the claimant solicitors sent a letter and claim form to the defendants by fax. In the acknowledgment of service the defendants stated that service was bad. Were they right? They could not have been served as legal representatives at the time when the fax was sent because solicitors cannot instruct themselves to act for themselves. CPR 2.3 defines a legal representative as ‘a barrister or solicitor, solicitors employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who has been instructed to act for a party in relation to a claim’. The defendants had not indicated that they would be prepared to accept service by fax and the claimants were not saved because the defendants had their fax number on their letter-heading, because this is only an indication that a legal representative is willing to accept service by fax and the court had held that the defendants could not be their own legal representatives. The service was bad. The claimants, or rather their solicitors, similarly came unstuck in Andrew Brown and others v Innovatorone and others [2009] EWHC 1376 (Comm) where two firms of solicitors had informed the claimant’s solicitors that they were acting on behalf of defendants but had not said they had instructions to accept service. The rule does not say that a fax number on a solicitor’s letter-heading means that the solicitor has instructions to accept service. The rule in effect says that once a solicitor has indicated that he has instructions to accept service, the mentioning of the fax number on their letter-heading means that service maybe effected on them by fax. Neither of the firms of solicitors had indicated they were prepared to accept service and therefore service by fax was bad.