SERVICE OF THE CLAIM FORM: DANGERS OF SERVING AT THE LAST KNOWN ADDRESS (2019)

It is difficult for a month, sometimes a week, to pass without there being a service of the claim form case.  The issue of service was central to the decision of Mr Justice Martin Spencer in Brayshaw -v- Partners of the Apsley Surgery [2019] 889 (QB).  This case illustrates the problems of serving at the “last known address”. The claimant’s solicitors had made considerable efforts to find a defendant’s address, however the judge held that these were not “reasonable steps” as required by the rules.

THE CASE

The claimant had been successful in an action against  the second defendant, an individual doctor, but unsuccessful in an action against the first defendant, the partnership in which he practised. .   When the judgment became public the second defendant applied to set aside the judgment on the basis that he had never been served with the claim form and had no knowledge of the proceedings.

THE RULES

CPR 6.9 gives a route for a claimant where a defendant’s address is not known – the claimant has to take “reasonable steps” to find the defendant’s address.

(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 CLAIMANT’S ATTEMPTS TO TRACE THE SECOND DEFENDANT

The claimant served at the last known address.  The claimant’s solicitor made a statement showing that several investigators had attempted to trace the second defendant but not been successful.

DID THE CLAIMANT TAKE “REASONABLE STEPS” TO ASCERTAIN THE CLAIMANT’S CURRENT ADDRESS?

The judge held that the claimant did not take reasonable steps.  The First Defendants had been successful in obtaining an order from the GMC in relation to documents.  The claimant had not made any such attempt.

“17. Thus, as it appears to me, at no stage was the GMC asked specifically to disclose to the
claimant’s solicitors the information which they had concerning the contact details of
Dr O’Brien, nor was any application made to the court asking the court for an order that
they do so. It seems to me that, just as the first defendant was able to make an application to
the court requiring the GMC to make disclosure of documents held in their possession so as
to enable the first defendant properly to defend itself against these allegations in this case, so
too the claimant could and should have made an application to the court for an order that the
GMC disclose the second defendant’s contact details in order to allow him to be served with
the proceedings. It may be that in the first instance the court would have ordered or
requested the GMC first to write to the second defendant and ask whether he had any
objection to disclosure of his contact details. But, in any event, I have no doubt that, had an
application been made to the court which was supported by evidence to the effect that the
GMC had contact details which would allow the proceedings to be served on the second
defendant, the court would have made an order requiring the GMC to disclose those details
for the limited purpose of allowing service of the proceedings.

18.In those circumstances, in my judgment, reasonable steps were not taken by the claimant
pursuant to CPR6.9 to ascertain an address for service of the second defendant. Of course,
in instructing their internal investigator and the professional investigator to make enquiries,
the solicitors acted reasonably, but, in my judgment, in the light of their knowledge of the
involvement of the GMC earlier that year in 2015, what was done was not sufficient.”

THE CONSEQUENCE

The judge found that the judgment against the second defendant was irregular and had to be set aside.  However the action against the second defendant stood.

WHAT THE CLAIMANT SHOULD HAVE DONE

In my judgment, the claimant should certainly have taken this issue back to the court and
sought the court’s guidance and direction on this matter. Instead, it simply served at the last
known address and filed certificates of service.

OTHER CASES ON THIS ISSUE

A similar conclusion was reached  by HHJ Richard Roberts in Sajid -v- Nuur (Central London County court 30/7/18).( Nuur v Sajid (2018) CLCC on appeal to HHJ Robert).

In that case a landlord at served at the tenant’s old address and knew that the tenant was no longer there.    The District Judge held that this was good service. This decision was overturned.

CPR 6.9 (4) applied and the claimant 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.

If  anything the decision went further and held that under the terms of CPR 5.15 it was mandatory for the landlord to consider whether there was an alternative place or method of service.

 THE ONLY SAFE ROUTE IS TO APPLY TO THE COURT

The case illustrates the dangers of serving at the “last known address” without giving careful thought as to alternative methods and making an application to the court. It also highlights the importance of considering issues of service promptly.  It will be difficult to make applications to the court if service is left until the end of the four month period.