CIVIL PROCEDURE BACK TO BASICS 31: SERVICE OF THE CLAIM FORM AT THE “LAST KNOWN ADDRESS”: FIVE KEY POINTS

Service at a defendant’s  “last known address” is something that can be highly problematic.  There are dangers in serving at an address unless you are wholly certain that the defendant still resides there. Here we look at the rules and some of the relevant case law.  The most dangerous assumptions to make are that you can blithely serve at an address when there have been hints that the defendant may have moved. Similarly do not assume that, because you do not immediately know where the defendant is now, you can automatically serve at the last known address.

The first place to look is the rules themselves.

“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).”

1. THE CASE LAW: “REASON TO BELIEVE”

in Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) considered the issue of whether a claimant had “reason to believe” that a defendant did not live at the address for service.  The case concerns a previous version of the rules. However the judge also made observations about whether the claimant had “reason to believe” the defendant was not at the address.

1. However, there is a further issue to be considered. Service on the defendant was to be effected by post. At that date the then CPR rule 6.5 (4), (6) permitted (as CPR rule 6.9 (2) now permits) service on an individual being sued as such by post at his “usual or last known residence”.The current sub rule (r 6.9(2)) is made subject to sub-rules (3)-(6) of rule 6.9. Sub rule (3) provides that, where a claimant has “reason to believe” that the last known residence is an address at which the defendant no longer resides, he must take reasonable steps to ascertain the defendant’s current residence. At the hearing I heard argument on whether the claimant in this case had such “reason to believe”. In order to answer this question, it would be necessary to consider the events that took place nearly one year earlier, shortly after the mistaken payment and the partial repayment, and which I have already set out (see [8]-[9] above). But of course the version of the rule that needed to be considered was that in force in 2006. I was supplied at the hearing with a copy of the original 1998 version of rule 6.5. Since the hearing I have checked for the exact form of the rule in force in 2006. It is not materially different from the 1998 version, though very different from the version currently in force, introduced largely in 2008.The version in force in 2006 does not contain any equivalent to the current r 6.9(3)-(6). There is therefore no need to consider whether the claimant had such “reason to believe”.

2. If it had been necessary to decide the question, I would have held as follows. The position in February 2006 was that the claimant was told by the defendant by email on 6 February 2006 that the defendant did not receive the letter of 16 January 2006. The claimant knew that the letter had not been returned undelivered. The defendant could have explained, but did not, that the reason he did not receive it was that he had moved away. In my judgment, this would not amount to “reason to believe” on the part of the claimant that the last known residence is an address at which the defendant no longer resides. What had happened was potentially explicable on that basis, but was also explicable on the simpler basis that the letter of 16 January had been mis-delivered by the post office. At best, it amounted to a matter which might be further investigated. Unfortunately, the claimant did not do so.

2. REMEMBER: IT CAN NEVER BE THE “LAST KNOWN ADDRESS” IF THE DEFENDANT HAS NEVER LIVED THERE

the Court of Appeal held that:

1. The phrase “last known residence” could not be extended to an address at which the individual to be served has never resided.
2. 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.”

3. IT IS MANDATORY TO GO THROUGH THE STEPS IN CPR 6.9(4) AND (5)

HHJ Richard Roberts in Sajid -v- Nuur (Central London County court 30/7/18).  A former landlord issued separate proceedings against a former tenant claiming arrears of rent.  Proceedings were served at the property that the tenant rented from the landlord, by then the landlord knew that the tenant had left the propert

The District Judge had found that the claim form had been properly served.  The Circuit Judge held it had not: CPR 6.9 (4) applied and the claimant landlord could have made an application to serve at an alternative address or by an alternative method.

• The landlord had reason to believe  (indeed knew) that the tenant no longer resided at her last-known address.
• The landlord had taken reasonable steps and was unable to ascertain the address of the tenant’s current residence.

Therefore it was mandatory for the landlord to consider whether there was an alternative place or method of service.

4. 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).

5. 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).