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At first instance the court held that service of court proceedings on the first defendant was ineffective because the claimant's solicitors had wrongly used the address of his former place of work in the UK, rather than his home address in Italy. On appeal the court agreed and struck out the claim as it was obvious that the Italian address should have been used and time for service had now expired.
30 January 2014, Court of Appeal, Civil Division
The claimant sought to claim damages for negligently performed plastic surgery which took place at the clinic of the second defendant and was performed by the first defendant, their employee at the time.
The first defendant subsequently left the employment of the second defendant and returned to Italy where he lived. The claimant's solicitors discovered that his details were removed from the GMC register in the UK and obtained details of his address in Italy.
Court proceedings were issued one week before limitation. An order was granted for extension of the time for service. Proceedings were served on the second defendant and the last known UK employers of the first defendant. The second defendant was in liquidation. The first defendant made a successful application to strike out the claim on the basis of service being ineffective.
The claimant's solicitors appealed claiming that the claim form had been validly served. The Court of Appeal held that the first defendant was being sued as an individual and service was therefore required at his residential address. It was well known that the first defendant lived in Italy and service should have made there, pursuant to CPR 6.14. The time for effective service had expired and the case was dismissed.
Where proceedings are issued so close to limitation the claimant's solicitor must act with caution to ensure the rules for service are followed. Failure could be fatal to the claim. The court was critical of the claimant for not adhering to the rules and for failing to keep to the relevant deadlines. In the circumstances there is always a risk that the case may be struck out. Here, it was obvious that the first defendant resided outside of the jurisdiction. The CPR clearly sets out the relevant procedure to be followed in this instance and the claimant's solicitors failed to comply. The claim was struck and the injured claimant now has no further recourse to the compensation that would have been awarded had she been successful other than to sue her solicitors for professional negligence.
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