Defendants behind bars

When acting for clients with personal injury claims, especially road traffic collisions, it can often be the case that the defendant has been convicted of a driving offence and may be serving a custodial sentence.

When issuing and serving proceedings, it's important to ensure that service is properly effected on the defendant in prison.

Locating the defendant

Often, I've found that the details of the defendant’s prison address will not be readily available. You can locate this information by contacting the Government’s 'Find a prisoner' service.

You can write to this service with the defendant’s name and request the prison they are currently located at and their personal prisoner number.

The details can be disclosed to you under an exemption of The Data Protection Act 2018 (Schedule 2, Part 5, Paragraph 3a) which extends to prospective legal proceedings. This means you don't require a court order or the defendant’s consent to obtain their address and prison number.

Keeping correspondence confidential

There's various guidance in relation to confidential communication between prisoners and their legal representatives. Rule 39 of the Prison Rules 1999 is often cited as a way of communicating with a prisoner confidentially. This doesn't extend to the claimant’s legal representative.

There are no means of keeping the correspondence confidential and avoiding the correspondence from being intercepted by the prison staff.

You must ensure your client is aware of this before service of proceedings. Often pleadings contain detailed information about the claimant and particularly their medical data which is highly sensitive.

You should consider whether an anonymity order is appropriate or alternatively consider seeking permission from the court to serve redacted proceedings on the prisoner. The application can be made prior to service and can include permission for a redacted claim form, particulars of claim and/or permission to dispense with service of the medical evidence and schedule of loss. This is a way to protect the claimant against potential data breaches.

How to serve

You must mark all correspondence with the prisoner’s personal prison number. This includes writing their prisoner number on the outside of the envelope.

When serving proceedings on a prisoner, it's often thought that personal service is required. This would involve instructing a process server to attend the prison and personally serve the prisoner with the proceedings. There are many potential issues with this, the prisoner can simply refuse to attend a visit with the process server, or they can refuse to accept the documents. This can cause delays and uncertainty in relation to service. It's not necessary.

An alternative option is to write to the prison’s governor and seek their agreement to personally serve the prisoner. This can also be problematic. Firstly, the governor may not agree or reply to your correspondence and secondly, you are placing the service in the hands of a third party. This can lead to issues with deemed service under the Civil Procedure Rules as you will not know when the steps taken to serve were actually carried out.

Best practice is to simply go back to basics and follow the steps required by the Civil Procedure Rules. Send the correspondence to the prisoner via first class post. You can file a Certificate of Service confirming the dates you took the required steps required under the Civil Procedure Rules.

Find out more about Irwin Mitchell's expertise in supporting people and families affected by serious injuries at our dedicated section on our website.