REUTERS | Mohamed Nureldin Abdallah

The name of the game: effecting valid service in Ndole Assets Ltd v Designer M&E Services UK Ltd

Delegation could still be the name of the game for litigants in person who instruct a third party to effect service of a claim form. The recent Court of Appeal judgment of Ndole Assets Ltd v Designer M&E Services UK Ltd goes very little way in providing clarity for parties with litigants in person on the opposing side.

Under the Legal Services Act 2007 (LSA 2007), “conduct of litigation” amounts to a “reserved legal activity”. The LSA 2007 was closely examined in Ndole in terms of what constitutes the “right to conduct litigation” or performing any “ancillary functions”, which amount to “reserved legal activity”. Service of a claim form, the court held, is an ancillary function and therefore a reserved legal activity. Only a statutorily authorised person (or an exempt person, including a litigant in person themselves) can serve a claim form.

The matter becomes a problem for those of us with litigants in person on the opposing side when those litigants in person enlist third party help to serve the claim forms (or indeed other documents). Can a litigant in person enlist the help of a third party to effect valid service? The question was answered in Ndole, but not satisfactorily.

The conclusion in Ndole is that undertaking an “administrative or mechanical” function is different from undertaking legal responsibility with regard to service. On that reasoning, process servers undertake a mechanical activity while the solicitor instructing them retains legal responsibility for service. In Ndole, the claimant company (as a litigant in person) instructed a claims consultant who, quite clearly, were not solicitors. Nevertheless, the claims consultant sent letters serving documents as though they were taking responsibility for, and effecting, service. That was going much further than a merely administrative or mechanical step and the court held they had attempted to effect service.

However, we cannot breathe a sigh of relief when faced with a litigant in person who has employed a third (non-qualified) party to effect service. The court held that simply because a third party effected service, that does not make service invalid unless and until the court sets it aside. The court chose not to set aside service, deciding that that would be too harsh, and that was not the statutorily intended consequence.

It therefore seems that, faced with a litigant in person, there is no means by which improper service by an unqualified person on their behalf can be challenged. The position is most unsatisfactory. The practical consequences are that it seems it would be a waste of time and costs to attempt to challenge service by a litigant in person effected by a third party. That is not say that a litigant in person can get away with defective service. The court was careful to point out that Barton v Wright Hassall had very different facts.

When faced with service on behalf of a litigant in person (or indeed any party), there are still issues around service that could assist, despite the reasoning in Ndole. Those include:

  • Has service has been effected within limitation?
  • How service has been effected and if service has been effected electronically, was permission sought to do so?
  • Where service has been effected, could it be that you do not have authority to accept service or your client was not served at the correct address?
  • If particulars of claim are to follow, are they served within the relevant timescale?

As a footnote, you might be wondering if there is any sanction at all for an unqualified third party effecting service. Pursuant to the Solicitors Act 1974, no unqualified person is able to prosecute or defend any action and leaves themselves open to criminal conviction should they do so. That, the court held, was the acceptable sanction, that is, upon the person who had illegally conducted a reserved activity. Of course, on a practical level, that is of little or no help in the course of the litigation itself, save if one is feeling particularly vindictive!

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