SERVICE OF THE CLAIM FORM: SERVICE AT “LAST KNOWN” ADDRESS: MORE DANGEROUS POINTS TO WATCH
Following the previous posts as to issues and problems relating to service of the claim form some responses have highlighted the difficulties of service at the “last known address”. The rules here are somewhat complex, a detailed knowledge is necessary.
THE RULES: CPR 6.9(3) – (6).
“(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).
(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –
(i) an alternative place where; or
(ii) an alternative method by which,
service may be effected.
(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.
(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”
THE ISSUES THAT ARISE
There are a number of issues here:
- When does a claimant have “reason to believe” that the defendant no longer resides or carry on business at that address. Is this an objective or subjective test?
- What are the “reasonable steps” that a claimant has to take?
IN ESSENCE: JUST BE VERY CAREFUL
- If the claimant has any suspicion at all that the defendant does not remain at the “last known address” it would be prudent to check this prior to issue.
- A prudent claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.
IF YOU FIND THE DEFENDANT AND/OR ANOTHER ADDRESS
Make an application under CPR 6.15 (which allows service of the claim form by an alternative method or at an alternative place).
IF YOU CANNOT FIND THE DEFENDANT
Then you can serve at the last known address. However a claimant remains vulnerable if they cannot show that they have taken “reasonable steps” to find the defendant or an alternative address for service. The notes in the White Book describe this requirement (or perhaps the drafting) as “ugly” and note that the provisions could be harsh, emphasising the importance of taking the steps outlined in (4) and (5).
IT CANNOT BE THE “LAST KNOWN ADDRESS” IF THE DEFENDANT HAS NEVER LIVED THERE
|In Marshall and Rankine -v- Maggs  EWCA Civ 20|
the Court of Appeal held that:
- The phrase “last known residence” could not be extended to an address at which the individual to be served has never resided.
- When considering an address at which the individual to be served did actually live at some time the court is not concerned with “belief” but with knowledge:
“The draftsman of the rules deliberately chose the word “known”. In our view, knowledge, in this context refers to the serving party’s actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence.”
THE SITUATION PRIOR TO THE RULE CHANGE
The rule change was introduced to essentially, codify, the comments made in Smith –v- Hughes and the MIB the tranche of cases considered by the Court of Appeal and reported as Cranfield -v- Bridgegrove  EWCA Civ 656. The old rules allowed a claimant to serve on the “last known residence”, with none of the requirements to take reasonable steps that now exist in (4),(5) and (6) set out above.
In the Smith case:-
- The effective defendant was the Motor Insurers Bureau. Mr Smith was an uninsured driver.
- Prior to service of the Claim Form the claimant’s solicitors had been told by the MIB that Mr Smith had moved and they could not find a forwarding address. The MIB sent a copy of their enquiry agent’s report to the claimant’s solicitor.
- The claimant served on the address at which Mr Smith last lived (where it was known that the defendant did not in fact now live).
- The MIB, some time into the action, applied to set aside service.
- The claimant argued that this was Mr Smith’s “last known residence”
- The judge at first instance held that the claim form had not been properly served on Mr. Smith. However this decision was overturned by the Court of Appeal.
The Court of Appeal held that service at an address at which the claimant knew the defendant no longer lived could be service at the last known residence. The significant factor here was that it was evidence from the MIB that demonstrated the last known address. The Court observed
“If the MIB had disputed the claimant’s claim that this was Mr Hughes’ last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant’s actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal.”
(I represented the claimant in that appeal and there was some interesting – at times philosophical – discussion about whether a place could be the “last known residence” if a claimant knew that the defendant did not, in fact, actually live there.)
HOW WOULD SMITH BE DECIDED UNDER THE NEW RULES?
Smith was interesting because it was the (effective defendant) the MIB that employed the enquiry agent that could not Mr Smith. The new rules put the burden on the claimant to take reasonable steps. Could the MIB now argue that failing to employ another enquiry agent was not a “reasonable step”? Even after its own investigations had failed to find an alternative address. An “ugly” situation indeed.