It is common practice to confirm from the other party’s solicitors (if solicitors are engaged) if they have instructions to accept service of a writ of summons on behalf of the inquiring lawyer’s client.
Sometimes the response is: “We have instructions to accept service on behalf of our client”. In the recent case of City of Canning v Christou Nominees Pty Ltd [2020] WASC 97 Master Sanderson had to consider what that sentence means.
On about 26 July 2018 the first defendant’s solicitor got a phone call from the plaintiff’s solicitor who said the plaintiff would be issuing proceedings. After the conversation, the first defendant’s solicitor sent an email to the plaintiff’s solicitor which included the sentence ‘we have instructions to accept service on behalf of our client’. A writ of summons with an indorsement of claim was filed at the Supreme Court of Western Australia on 30 July 2018.
Almost a year later, on 29 July 2019, the plaintiff filed an amended writ of summons. The plaintiff’s solicitors were aware that the writ of summons had to be served on or before 29 July 2019 or the writ would become stale. A significant change to the writ of summons was a claim that the loss and damage allegedly suffered by the plaintiff began to manifest from December 2012, which affected the date on which the limitation period commenced running.
On 29 July 2019, an email was sent to the first defendant’s solicitors attaching the original iteration of the writ and the amended writ. Confirmation was requested from the first defendant’s solicitors that they had instructions to accept service. The first defendant’s solicitors, seemingly unaware of the email sent on 26 July 2018, responded saying they would seek instructions.
While the plaintiff’s solicitors were waiting to hear again the first defendant’s solicitors, steps were taken to ascertain the registered office of the first defendant in case service had to be effected there.
The search obtained was for a company with a very similar name to that of the first defendant leading to the wrong company purportedly being served.
The first defendant’s solicitors did not respond to the 29 July 2019 email and subsequently maintained that as the writ had not been served within the 12-month period as required by the rules, it had gone stale.
Order 9 of the Rules of the Supreme Court 1971 (WA) (Rules) provides two ways by which service of a writ can be effected - either pursuant to O 9 r 1 (1) by being served personally, or pursuant to O 9 r 1 (2) where service is effected when the defendant’s solicitor indorses on the writ a statement that they accept service on behalf of the defendant.
The parties agreed that at common law, service in accordance with an agreement, acknowledgment or undertaking would constitute sufficient service.
The plaintiff contended that because the first defendant’s solicitors had given an undertaking they would accept service, and the undertaking had not been withdrawn, the email transmission of the writ and amended writ to the first defendant’s solicitors constituted valid service.
The first defendant contended that the transmission of the writ to the first defendant’s solicitors clearly was never intended to effect service.
Upon consideration of the facts, Master Sanderson concluded that the writ had been effectively served on the first defendant when it was transmitted by email on 29 July 2019. The Master commented that:
‘the purpose of service is to bring to the attention of the parties served the fact proceedings had been issued. Service is not some sort of forensic game in which one party, by taking advantage of an oversight by another party, gains an advantage.’
In relation to the email on 26 July 2018 in which the first defendant’s solicitors confirmed having instructions to accept service, the Master noted:
‘If there was a contract between the plaintiff’s solicitors and the first defendant’s solicitors to the effect the first defendant’s solicitors would accept service of the writ, then delivering the writ to the first defendant’s solicitors would have been effective service… Solicitors are officers of the court. Undertakings between solicitors should be honoured – it is fundamental to the administration of justice that solicitors are able to repose trust in one another.
Solicitors have a fundamental ethical obligation to act in the best interests of a client in any matter where the solicitor acts for a client, and to be honest and courteous in all dealings with clients, other solicitors and other persons involved in a matter where the solicitor acts for a client.
This decision illustrates that solicitors are not only required to work in the best interests of their client but also to ensure the efficient running of court proceedings.
Legal proceedings can be expensive and time consuming, particularly if they are delayed by procedural issues and disputes.
If you are contemplating commencing legal proceedings our experienced Litigation and Dispute Resolution team can provide the guidance and advice you will require.
