ANOTHER SERVICE CASE: SERVICE NOT EFFECTIVE WHEN CLAIMANT NOT ABLE TO SHOW WHICH MAILBOX CLAIM FORM WAS POSTED TO

In the judgment today in  Ivanchev v Velli [2020] EWHC 1917 (QB) HHJ Lewis (sitting as a High Court judge) held that service of the claim form was not effective. Placing it in the mailbox for an apartment where the defendant had never lived was not good service, nor was there sufficient evidence that a security guard had placed the claim form in the correct mail box.

“What constitutes good service for a multiple occupancy building will often be fact-sensitive.”

 

THE CASE

The claimant issued proceedings against someone who lived in the same residential development as him.  Communication had taken place by email and the claimant issued against the defendant using a wrong name.   Proceedings were served promptly and no acknowledgement received. The claimant applied for default judgment.  The (wrongly named) defendant was informed by email of the application and adduced evidence that he had never been served.

THE ATTEMPTS AT SERVICE OF PROCEEDINGS

The claim form had been served at a mailbox in the development. However it transpired it was sent to an apartment that the defendant had never lived in.

 

  1. Proceedings were issued on 6 April. On 8 April, a process server attended at the Defendant’s building. He rang the intercom for No 1607 and a man answered. This man said he was not Mr Velli and that Mr Velli was not there. The security guards allowed the process server into the foyer of the building to access the mailbox for No 1607. He posted the claim documents into the letterbox for No 1607.

There was then a second attempt.  The process server returned and a security guard put the claim form into a mailbox.

iv) The security officer then got his manager, Mr Wade. The process server says: “he also confirmed that (a) he knows the defendant and (b) that he does not live in flat 1607 but still resides in [the building] under a different flat number”. He was not prepared to disclose the address.
v) He says that Mr Wade said he was “willing to serve the document on my behalf and make sure that Michele Velli (AKA Mike Velli) (AKA Mikel Velli) receives the document.”. The process server then says “unfortunately, I could not see what the flat number he posted the documents to… I waited outside and saw he had served the documentation to the defendant at 14.47”. I understand this to be saying that the process server saw the guard post the documents into a mailbox, but did not see which one.

 

THE LAW: SERVICE IN THIS MATTER DOES NOT CONSTITUTE GOOD SERVICE

The judge accepted the defendant’s evidence that he had never lived at No 1607.  This led the judge to conclude that the claim form had never been served and, consequently, the application for default judgment could not proceed.  The proceedings needed to be amended and re-served.

    1. The relevant procedural position is as follows:
i) CPR rule 6.6(2) provides that a Claim Form must include an address at which a defendant may be served. That address must include a full postcode, unless the court orders otherwise.
ii) To serve the claim form, the claimant must complete the step required by CPR rule 7.5, which for “delivery of the document to or leaving it at the relevant place” is “delivering to or leaving the document at the relevant place”.
iii) CPR rule 6.9(2) defines the place at which the claim form must be served on the defendant, which for service on an individual is “usual or last known residence”:
a) Whether the place is the ‘usual’ or ‘last known’ residence, what the serving party must establish is that there was a good, arguable case that the address served was the usual or the last known residence of the defendant: “That is a lower test than proof “on a balance of probabilities” but, because the issue is determined, effectively finally, at the interlocutory stage, a “good arguable case” requires the claimant to establish that it has a much better argument on the available material than the defendant”, Relfo Limited (In Liquidation) v Bhimji Velji Jadva Varsani [2009] EWHC 2297 (Ch) per Jules Sher QC sitting as a Deputy High Court Judge.
b) When considering the state of mind of the server in a case where service is on the “last known residence”, knowledge in this context refers to the serving party’s actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence, Marshall Rankine & another v Maggs [2006] EWCA Civ 20, per Dyson LJ.
iv) If, however, a claimant has reason to believe that the usual or last known address is one at which the defendant no longer resides, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence (CPR rule 6.9(3)) and, if he or she does so, must serve at that address (CPR rule 6.9(4)(a)).
v) Where, having taken such reasonable steps, the claimant is unable to ascertain the defendant’s current address, the claimant must consider whether there is an alternative place where; or an alternative method by which, service may be effected (CPR rule 6.9(4)). Where there is such a place, the claimant must make an application under CPR rule 6.15 (CPR rule 6.9(5). Otherwise, the claimant may serve on the defendant’s usual or last known address (CPR rule 6.9(6)).
    1. The Claimant broadly accepts this position, relying on the Relfo decision, and its application in National Westminster Bank v De Kment [2016] EWHC 3875 (Comm) at [8] and [9]. The Claimant says, however, that the approach identified above applies equally to the situation where a defendant has never resided at a property, providing the claimant has taken sufficient, diligent steps to be satisfied that it is the usual or last known residence.
    2. I do not accept this position given the clear decision of the Court of Appeal in Marshall Rankine (supra). The court considered whether it is possible for a person’s “usual or last known residence” to be a property at which they have never, in fact, lived. The court was clear that the words used in what was then CPR rule 6.5(6) require that the defendant should have lived at that address at some time. The words used in the old rule are not materially different to the current CPR rules 6.9(1) and (2). The court dismissed the argument that it was sufficient that a claimant had taken such reasonable steps to ascertain the last known address, or that an address may qualify as a defendant’s last known address if it is honestly believed to be such, even if that is not in fact the case. The court said: “no authority has been cited to us in support of the proposition that a piece of information which is false can nevertheless be known.”
    3. A similar approach was taken in Relfo, where the judge recognised that the question of whether somewhere is a “usual or last known residence” does not even arise in respect of a property that is not the defendant’s residence at all.
The first attempt at service
    1. On the first attempt in April 2020, documents were served at No 1607. This is not a property at which the Defendant has resided. It follows, given the decision in Marshall Rankine, that this cannot have been effective service, whatever the belief of the Claimant.
The second attempt at service
  1. On the second attempt in June 2020, the Claimant’s agent was informed that the Defendant did not live at No 1607 and so he did not leave the documents at that place of residence.
  2. If there had been evidence produced that the documents had been left at No 406, by posting them into No 406’s mailbox, I would have been satisfied that there had been good service on the Defendant on the basis that No 406 was his usual residence at that time.
  3. The problem here is that the Claimant does not know the address for the apartment that was served. The process server’s evidence of what he saw in terms of posting is vague. He could not see the letterbox number, nor give any indication of the approximate location of the letterbox.
  4. What constitutes good service for a multiple occupancy building will often be fact-sensitive. In this case, it seems material to me that this was a large building comprising many autonomous residential units, each with its own secure and clearly labelled mailbox, and a separate postal address. It is also material that the documents in question were not addressed correctly, either in terms of the name of the recipient or his address. The Defendant points out that the Certificate of Service even used the wrong postcode for his apartment. Taken at its highest, the evidence shows that the documents were served on one of the properties in the Defendant’s building, but not that this was the defendant’s residence. The Claimant has not established that the claim form was served on the Defendant at his usual residence.
  5. I have, however, also considered the question of reasonable steps, in case it could be said that the provisions of CPR rule 6.9(3) apply. In this case, by the June attempt, the Claimant had reason to believe that the Defendant was not living at No 1607. He was, therefore, under a duty to take reasonable steps to ascertain where he was living. Speaking with the security guard would be one such step, but this did not result in the Claimant ascertaining the Defendant’s current address, as required by rule 6.9(4)(a). As a minimum, I would have expected a Claimant taking reasonable steps to have emailed the Defendant again, setting out what was known about his address and asking him to confirm the position. If he refused, then I would have expected the Claimant to have made an application pursuant to rule 6.15, as the Claimant said would happen more than once, and as required by CPR rule 6.9(5).
  6. I am satisfied that the Claim Form and Particulars of Claim have not been served. It follows that the Claimant’s application for default judgment is dismissed.