THE BURDEN IS ON THE SERVING PARTY TO SHOW A DOCUMENT HAS BEEN PROPERLY SERVED: SERVICE ON A RESPONDENT RESIDENT IN FRANCE HAD NOT BEEN ESTABLISHED: APPLICATION AGAINST THAT PARTY DISMISSED

In  Camberley Group & Ors v Foster & Ors [2022] EWHC 1309 (QB) Richard Hermer QC, sitting as a Deputy High Court Judge, dismissed an application for disclosure from a non-party on the grounds that the claimant failed to establish that the respondent had been served. The claimant knew that that particular respondent lived abroad and yet served at an address in England. The judge rejected an argument that the burden in proving service did not rest on the party serving the documents.

“I reject the submission advanced by Mr Stephens that the burden of proving service does not rest on the party serving the documents and simply because Mr Foster has not replied from the email address he is known to use he can be deemed to have been served – that is irreconcilable, amongst other things, with the clear terms of CPD 6.9(3).”

THE CASE

The claimants sought, amongst other things, an order for non-party disclosure against an individual. There was evidence that the individual spent a large part of their time living abroad.  At the morning of the hearing the claimants applied for an order that a penal notice be attached to the order.  The respondent living abroad did not appear, service of the application had taken place in England at an address the respondent had some connection with in the past.  The judge did not accept this was good service and dismissed the application against that respondent.

THE JUDGMENT ON THIS ISSUE

    1. On the morning of the hearing, an amended draft order was provided. This sought to attach a Penal Notice to the Order (without prior notice to the parties or the respondents) and sought additional documents from Mr Foster beyond those initially demanded in the application. It is unclear whether any attempts to draw this amended version of the draft Order to Mr Foster’s attention were made. In my judgment it is plainly inappropriate to seek to attach a Penal Notice to a proposed order, for the first time and without notice, at the start of a hearing. This point applies to the applications for specific disclosure against actual parties (sought on the same composite draft order) but it is even more obvious in respect of an application against non-parties who have not been subject to, let alone breached, any extant orders of the court.
    1. A more fundamental problem with the application is whether Mr Foster was properly served with the application in the first place, in particular whether due regard was had to the possibility that his usual residence was France and was not England & Wales.
    1. On 2 March 2022, Blake Morgan, solicitors for the First Defendant informed Laytons that Peter Foster lived predominately in France. On 22nd March 2022, in response to a request from Laytons that they accept service on Mr Foster’s behalf, they made plain that they did not act for him.
    1. This correspondence should in my judgement have put Laytons on notice that Mr Foster was potentially usually resident outside of England & Wales and/or that the address they possessed for him was not his last known residence. The need to consider proof of service might be thought to be particularly important where an ‘intrusive’ order is sought against a non-party.
    1. CPR 6.9(3) provides:
Where a claimant has reason to believe that the address of the defendant……..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’).
    1. Although CPR 6.9 is addressed to service of a claim form, the same principles apply to service of other documents under CPR 6.20.
    1. Mr Foster was served with this application by sending it to an address in Kettering and by email. This is a postal address that he appears to have used on some documentation shown to the court and it also seems clear that he has shared the email address with his son. Those facts do not, however, demonstrate that he is usually resident in England when seen in light of the information the Claimants have possessed since early March, namely an assertion that Mr Foster was living in France for the majority of the time. That should have put the Claimants on notice that his usual or last known address might not be in England and that reasonable steps should be taken to ascertain the position. The Claimants took no such steps. The need for some element of verification of service was underlined by receipt of the signed statement of the First Defendant who stated in terms that his father spent the majority of time in France.
  1. It may be that Mr Foster spends sufficient time in England, or did at the time relevant to service, to deem that he has his usual residence here, but the position is far from clear and the Claimants have taken no steps to ascertain the position. I reject the submission advanced by Mr Stephens that the burden of proving service does not rest on the party serving the documents and simply because Mr Foster has not replied from the email address he is known to use he can be deemed to have been served – that is irreconcilable, amongst other things, with the clear terms of CPD 6.9(3). If Mr Foster is not usually resident in England or Wales but rather outside of the jurisdiction in France, then there is no dispute that he was not properly served. On the materials before me I am not satisfied that the Claimants have shown good service and for this reason the application is dismissed without the need to consider the substantive merits.