SERVICE OF THE CLAIM FORM AT THE “OLD ADDRESS”: THE HIERARCHY OF MEASURES A CLAIMANT HAS TO TAKE
A search term arrived on this blog today “Service of claim form at old address”. This is an interesting issue to look at following the earlier posts on service. In particular the hierarchy of measures a claimant is required to take before serving at the “last known address”.
CPR 6.9 allows service at “Usual or last known residence” and the “last known place of business”.
WHAT DOES “LAST KNOWN” MEAN?
This phrase is etched on my mind. I represented the claimant in Smith -v- Hughes & the MIB  EWCA Civ 65 and spent two days in the Court of Appeal (mainly waiting to get heard) pondering that very point.
THE FACTS IN SMITH
Mr Smith was injured by an uninsured driver – Mr Hughes. The MIB were obviously involved and a second defendant to the action. Prior to the issue of proceedings the MIB had instructed an enquiry agent to find Mr Hughes. The enquiry agents reported that Mr Hughes had left the address at 45 Whitworth Close, Birchwood, Warrington, and his current whereabouts were unknown. The MIB passed a cop of the enquiry agent’s report on to the claimant.
The claimant issued proceedings using 45 Whitworth Close as the address for service for Mr Hughes and joining the MIB as a second defendant.
Part way through the case the MIB took the point that Mr Hughes had not been served properly. The District Judge held that Mr Hughes had not been served and the action was struck out.
THE HEARING IN THE COURT OF APPEAL
The appeal was one of five appeals heard on the issue of the claim form, and was listed last. The Court of Appeal asked that the advocates be present in court throughout in case anything in the earlier cases touched upon our case.
The first four cases took most of the two days. It was very late afternoon by the time this appeal was reached. The court was now nearly empty. The two advocates left were northerners*. Three Court of Appeal judges looked at us with a look that said “you have ten minutes each”. In fact I think they actually said you have ten minutes each.
I cannot, of course, do justice to the eloquence and legal reasoning of the advocates in our allotted ten minutes. However distilled down the submissions amounted to:
“It is the last known address because it is the last known address” (claimant).
“It can’t be the last known address because they knew he wasn’t there” (defendant).
THE FINDING: IT WAS THE LAST KNOWN ADDRESS
The Court of Appeal placed considerable emphasis on the point that the MIB had to agree that it was, in fact, the last known address. It was its investigator that could not find a forwarding address.
“The CPR do not make it clear whether service by post to a defendant’s last known address at which he no longer resides, and the defendant does not in fact receive the claim, is good service”.
In our judgment, the position is clear. There are two conditions precedent for the operation of the provisions of CPR 6.5(6), namely that (a) no solicitor is acting for the party to be served, and (b) the party has not given an address for service. If those conditions are satisfied, then the rule states that the document to be sent must be sent or transmitted to, or left at, the place shown in the table. In the case of an individual, that means at his or her usual or last known residence. The rule is plain and unqualified. We see no basis for holding that, if the two conditions are satisfied, and the document is sent to that address, that does not amount to good service. The rule does not say that it is not good service if the defendant does not in fact receive the document. If that had been intended to be the position, the rule would have said so in terms. Nor can we see any basis for holding that, if the claimant knows or believes that the defendant is no longer living at his or her last known residence, service may not be effected by sending the claim form, or leaving it at, that address. That would be to fly in the face of the clear words of the rule. The rule is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied.
As we have said, there is no suggestion in this case that 45 Whitworth Close was not Mr Hughes’ last known residence. 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.
But for the reasons that we have given, in our judgment the district judge misinterpreted CPR 6.5(6), and the appeal must be allowed.
* The defendant was represented by Peter Gregory, now HH Peter Gregory.
BUT BE CAREFUL – LOOK AT THE RULE NOW
That latter point concerning “the knowledge which, exercising reasonable diligence, he or should could acquire” was then enshrined into the rules. There is a hierarchy of measures.
- A claimant has to take “reasonable steps” to ascertain the current address.
- If the current address is found then service must take place at that address.
- If the current address cannot be found the claimant must consider whether there is an alternative place or method of service.
- If there is an alternative place or method the claimant must make an application under rule 6.15 (service by an alternative method or an alternative place).
- It is only when an alternative place or alternative method cannot be ascertained that the claimant can safely (or reasonably safely) serve at the last known address.
THE OPEN QUESTIONS
A claimant must have “reason to believe” that the address is no longer current. Whether that is an objective or subjective test is not clear. Further it is not clear how diligent a claimant has to be in seeking out alternative methods of service.
However it is clear that, with the change of the rules, simply serving at the “last known address” is a dangerous step. The claimant must go through the hierarchy of measures set out in CPR 6.9.(3) before service at the last known address is possible.
(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).”