A client of mine, prior to instructing me, issued a protective writ on the last day before expiry of the limitation period, but left it until eight days before the writ was due to expire to attempt to serve it.
He sent it by registered post to the registered office of a company of which the defendant used to be a director. Unbeknown to my client, the company had moved and the defendant had resigned as a director.
The writ was rerouted to the new registered office and arrived there while it still had four days to run. It then went to the defendant's home. But, according to the defendant's affidavit in support of his summons to set aside service of the writ, the writ did not come to his attention until the day after it had expired.
At this point, my client instructed me. I issued a cross-summons to renew the writ. My counsel submitted that the defendant's evidence was beyond belief. The judge ruled that he had no good reason not to believe the defendant's affidavit and therefore granted an order setting aside service of the writ.
However, he also held that my client had been incredibly unlucky and this weighed in favour of his exercising his discretion to renew the writ retrospectively. He therefore made an order in these terms on my cross-summons.
The judge dismissed the defendant's argument that even if the writ had been received on time, it would still not have been validly served in accordance of the rules as follows: Service of a writ at the registered office of a company at which a defendant was a director did not constitute service at his business address and therefore Robertson v Banham [1997] could only apply to professionals such as solicitors. The judge ruled that the Robertson v Banham principle did not just apply to professionals. A writ cannot be served by registered post, but the judge was of the view that service by registered post was valid and indeed prudent.
My advice is to serve writs personally - service by post only creates a rebuttable presumption of service seven days after posting. Had I not obtained legal aid for my client, he would have been unrepresented and I anticipate that the proceedings against the defendant would have been struck out. If Lord Irvine's proposals come into effect, it will be at the expense of justice for the poor.
