A cautionary tale about serving proceedings on a partnership

In Goodfellow v Warren Boyes & Archer the claimant served proceedings against a dissolved partnership at the address of the firm that had acquired the partnership's caseload. The court ruled that the claimant had not effected good service of the claim and had failed to take reasonable steps to ascertain the current residence of the former partner he was seeking to sue.

Background

Warren, Boyes and Archer (WBA), a conventional solicitors’ partnership, was instructed to act for the late William Goodfellow and his wife in a property purchase which completed in 2006. A claim was later brought by the executor of Mr Goodfellow’s estate, who alleged that WBA had negligently allowed the property to be registered as a joint tenancy rather than a tenancy-in-common. This meant that Mr Goodfellow’s share of the property passed to his wife on his death rather than forming part of his estate.

At the time of the alleged negligence, WBA had two partners, Mr Hemens and Mr Archer. The latter had conduct of the matter. Mr Hemen resigned from the partnership in 2008 and Mr Archer continued practicing as a sole partner until October 2018, when he sold his caseload to Roythornes Limited (Roythornes). Mr Archer was employed directly by Roythornes until May 2019 when he ceased to practice.

The claim form was issued on 31 July 2023 after a standstill agreement had expired. WBA, Roythornes and Mr Archer were named as defendants. The address for both WBA and Mr Archer was stated as “20 Hartford Road, Huntington, Cambridgeshire, PE29 3QH”, which was WBA’s former office address, and the address stated for Roythornes was that of one of its offices in Lincolnshire. The claims against Roythornes and Mr Archer were subsequently abandoned, which left only the claim against WBA. 

On 27 November 2023, just three days before the expiry of the four-month period permitted by CPR 7.5(1), the claimant’s solicitor emailed DWF (who acted for Roythornes “as [a] Successor Practice” to WBA) and asked if they were instructed to accept service “of proceedings on behalf of your client”. DWF responded that they were not currently instructed to accept service.

The claim form and particulars of claim were posted on 28 November 2023 to an office of Roythornes in Huntingdon (the Incubator). WBA did not accept service on the basis that service at the Incubator was not valid and, as the four-month period to serve the claim form had expired, there was a limitation defence to the claim. 

Serving a partnership: a recap 

A claim against a partnership is a claim against the individual partners at the date that the cause of action accrued (Brookes v AH Brooks).  

The claim should be brought against the name of the partnership at the time the cause of action accrued (CPR PD7A, 7.1 – 8.3 and Planetree Nominees Ltd v Howard Kennedy LLP).

Assuming that a firm has not given an address for service or authorised a solicitor to accept service on its behalf, the CPR provides that service of a claim form can be made either:

• Personally, on a partner or person in control of the partnership at the principal place of business (CPR 6.5).  The partner served does not have to have been a partner at the date when the cause of action accrued, or
• By leaving the claim form at the usual or last known residence of a partner; or the principal or last known place of business of the partnership (CPR 6.3 and 6.9).  Where a claimant has reason to believe that the address at which the partner resides or the firm carries on business no longer exists, reasonable steps must be taken to ascertain the current residence or place of business.

The parties’ positions

The issues to be decided here were (i) whether posting the claim form and particulars of claim to the Incubator constituted good service on WBA, and (ii) if not, whether the court should validate service under CPR 6.15(2).

The claimant argued that there was good reason to validate service on the basis that:

1. An objective interpretation of contemporaneous documentation established that WBA could be served at an office of Roythornes. It was alleged that neither pre-action correspondence with DWF nor the standstill agreement made clear that Mr Archer had ceased working or being associated with Roythornes. The claimant had therefore acted reasonably in reaching the conclusion that the proceedings could be served at Roythornes’ address; and
2. Mr Archer, WBA’s insurer and the jointly instructed solicitors, DWF, were all aware of the issued claim and there was an error of understanding as to the correct address for service, which WBA (through DWF) contributed to. WBA’s refusal to accept service was technical game-playing.

WBA submitted in response:

1. There was no evidence that the claimant’s solicitors had made any attempt to establish the usual or last known residence of Mr Archer
2. The fact that a defendant knows of the existence of a claim form cannot on its own constitute a good reason to make an order under CPR 6.15(2) (see R (Good Law Project) v Secretary of State for Health and Social Care)
3. “Reasonable steps” is the ascertainment of the address, not whether a claimant subjectively had a reasonable belief that a particular address was or might be correct even if it was not, and
4. WBA would be deprived of an obvious limitation defence to a claim pleaded at £230,000 plus interest if service was validated (see Barton v Wright Hassall)

The court’s decision

It was held that service was ineffective and the court dismissed the claimant’s application to retrospectively validate service. The claimant could have easily traced Mr Archer but had not taken steps to do so. This case was not one where a defendant knows that a claimant is taking reasonable steps to serve but the defendant fails reasonably to co-operate or puts steps in the claimant’s way. 

The claimant was also criticised for failing to provide a witness statement to explain their thinking and/or to provide a good reason for validating service under CPR 6.15. 

Comment 

Serving proceedings on a partnership can be tricky, particularly if it is unclear whether the relevant partners are still with the firm and/or if the firm has been dissolved. 

The court has powers under CPR 6.15 to validate service by a method not permitted by the CPR where there are good reasons to do so. However, recent authorities make clear that the court is unlikely to do so where it cannot be shown that there were obstacles to serving the claim in time. 

When bringing a claim against a partnership (and assuming that the firm has not given an address for service or authorised a solicitor to accept service) claimants could consider:

• Requesting a partnership membership statement, which contains the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued (PD 7 para 8.1). Partners must respond to any request for a partnership membership statement within 14 days of receipt of the request (PD 7 para 8.2);
• Contacting the partnership/partners using any previously provided details (telephone, email) to confirm details for service;
• Using freely accessible databases (such as Companies House and the BT A-Z Directory) and/or paid search tools – although claimants should be wary of relying solely on these searches for information; and
• If none of the other steps are effective, instructing a tracing agent to ascertain the last known business or residential address of the relevant partner(s).

For defendants, where a claimant fails to take such steps and proceedings are served at an incorrect address, there are often good grounds to dispute jurisdiction under CPR Part 11. The relevant authorities, including Goodfellow, demonstrate that the court is prepared to decline to exercise its jurisdiction in such circumstances. In some cases, this can lead to a knockout blow before a claim even gets off the ground.