The recent case of Motorola Solutions, Inc and another v Hytera Communications Corporation Ltd and others is a helpful reminder to all parties of the care that needs to be taken in relation to the rules of service of proceedings within the jurisdiction on a defendant’s solicitor, and in particular on the scope of acceptance of service.
What are the rules?
CPR 6.7(1) sets out that a claim form must be served at the business address of a defendant’s solicitor where:
“(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or
(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction.”
CPR 6.7(1) is expressed in mandatory terms, subject to there being any requirement of personal service under CPR 6.5(1). It is therefore clear that where such written notice is required and not obtained, service upon a defendant’s solicitor will not be deemed valid.
Motorola Solutions, Inc and another v Hytera Communications Corporation Ltd and other
In the case of Motorola Solutions, Mr Justice Picken considered the issues relating to valid service on the defendants’ solicitor, Steptoe & Johnson. The defendants argued that acceptance of service of proceedings had only been agreed in relation to a narrow aspect of the litigation and not the substantive proceedings, and that this had been indicated in correspondence with the claimants.
The claimants therefore sought an application for a declaration, in the first instance, against the defendants:
“That the Claim Form for these proceedings dated 28 April 2022 and attendant documents … were, pursuant to CPR 6.7(1)(b) validly and effectively served on the first defendant, Hytera Communications Corporation Limited … at the offices of Steptoe & Johnson UK LLP at 5 Aldermanbury Square, London, EC2V 7HR.”
The application came before Mr Justice Picken in the claimants’ claim against the defendants for the enforcement of a US judgment dated 5 March 2020 (the “Enforcement Proceedings”). Pursuant to the US judgment, the defendants were found to be jointly and severally liable to the claimants for circa US $600 million.
Prior to the Enforcement Proceedings, proceedings had been commenced in 2020, in which the claimants had sought a freezing injunction against the defendants (as well as Project Shortway Limited and Sepura Limited named as the fourth and fifth defendants respectively). The injunction was granted by Mr Justice Jacobs on 9 April 2020, but was subsequently set aside by the Court of Appeal on 11 January 2021. Consequent to which, an application for permission to appeal to the Supreme Court was made, but refused on 22 February 2022. It was following this refusal that the Enforcement Proceedings were commenced and in which the issue of valid service on Steptoe & Johnson was considered.
It was ultimately held by Mr Justice Picken that:
“[9] It is Motorola’s position, disputed by Hytera, that Steptoe & Johnson had previously, in 2020, as will become apparent by reference to the correspondence which I will consider, agreed to accept service of proceedings, including, as it turns out, the Enforcement Proceedings commenced just over two years later.”
The correspondence
In reaching his decision, Mr Justice Picken carried out a detailed exercise in considering various correspondence between the parties, including:
1. A letter from the claimants’ solicitors, King & Spalding, to Steptoe & Johnson dated 16 March 2020, which, whilst headed “Case No 1:17-cv-Motorola v Hytera” (a reference to the US proceedings), stated:
“We are writing to you with respect to the above-captioned proceedings before the United States District Court for the Northern District of Illinois Eastern District … between your clients, Hytera Communications Corporations Limited, Hytera America Inc and Hytera Communications America (West) … and Motorola… We would be grateful if you could please confirm by return that the London office of your firm is instructed to deal with any related matters in England and Wales, including accepting service of English court proceedings on behalf of Hytera …”
2. A further letter from King & Spalding to Steptoe & Johnson dated 20 March 2020, which referred to the claimants and the defendants (including Project Shortway Limited and Sepura Limited as the fourth and fifth defendants respectively) in the heading of the letter. The letter enclosed the claimants’ application for a freezing injunction and a further application with regards to service out / service by alternative means.
The letter also included a section headed “Service” under which King & Spalding requested urgent confirmation as to whether Steptoe & Johnson accepted service on behalf of Hytera.
3. A letter from Steptoe & Johnson to King & Spalding dated 24 March 2202 which set out, under the heading “Service” that:
“We confirm that we are now instructed to accept service in England and Wales on behalf of the following entities:
1.Hytera Communications Corporation Limited;
2. Hytera America Inc;
3. Hytera communications America (West) Inc;
4. Project Shortway Limited; and
5. Sepura Limited.
We explained in our letter of 18 March 2020 that we are in the process of finalising our clients’ instructions as to our firm’s authority to accept service on their behalf …
In the circumstances, the Service Application was premature and should not have been issued …”
Judgment
Upon analysing the language within the correspondence and adopting the usual objective approach, Mr Justice Picken held that:
“[36] … it seems clear to me that Steptoe & Johnson were agreeing in the correspondence to which I have referred to accept service of any proceedings and not merely or only the freezing order proceedings which were then on foot or soon to be on foot. I emphasise in this context the nature of the original request as contained in King & Spalding’s 16 March 2020 letter, namely the request for confirmation:
“… that the London office of your firm is instructed to deal with any related matters in England and Wales, including acceptance of service of English court proceedings on behalf of Hytera.”
The use of the word “any” seems to me to make it abundantly clear that the request was not limited to any particular type of proceedings. The fact that the relevant sentence went on to refer to the acceptance of service of English court proceedings as being wrapped up in the request concerning “any related matters” underlines that conclusion. The request, putting it shortly, did not confine itself to any particular type of proceedings, but was far more general in form.
…
[40] … agreeing to accept service on behalf of a client is significant; it is not something that is likely to be done by a solicitor lightly. It is something which a solicitor will wish to take care about. In those circumstances, if Steptoe & Johnson really had intended to agree to accept service of proceedings referable only to the freezing order proceedings, then, one would have expected that to have been spelt out. That is not what the letter of 24 March 2020 did; on the contrary, it states, very simply that:
“We are now instructed to accept service in England and Wales on behalf of the following entities …”
It then lists the five defendants named in the letter of 20 March 2020. There is no hint there that the agreement was somehow limited to the Freezing Order Application and that cannot, in my assessment, have been an accident.
[41] For those reasons, I am entirely satisfied that this is a case in which there has been an agreement to accept service of proceedings generally, and, therefore that it is appropriate that the declaration sought by Motorola is granted.”
Commentary
This is not only a helpful decision in clarifying the rules of service of proceedings within the jurisdiction on a defendant’s solicitor under CPR 6.7, but also provides an important reminder to parties of the importance of clarifying the scope of acceptance of service.
Mr Justice Picken sets out a clear reminder that agreeing to accept service should not be taken lightly and that care should be taken in doing so. If a defendant intends to only accept service in respect of a specific aspect of the litigation, this case makes it clear that careful steps must be taken by the defendant to ensure that this is clearly communicated in writing.
