CAN A PARTY TO LITIGATION WITHHOLD THEIR ADDRESS FOR SERVICE? COURT FINDS IT HAS A DISCRETION – BUT DECLINES TO EXERCISE IT

June 16, 2022 · by · in Civil Procedure

In  Axnoller Events Ltd v Brake & Anor (Possession and Eviction Proceedings) [2022] EWHC 1162 (Ch) HHJ Matthews (sitting as a High Court judge) considered the question of whether a party to litigation must give an address for service, whether the court has a discretion in relation to this requirement and how that discretion should be exercised.  The judge concluded that the court has a discretion to allow a party to litigation to withhold their address from the other party. However it is was not appropriate to exercise that discretion on the facts of this case. (Note there is no parallel here with the rules relating to family cases. They contain wholly different provisions in relation to disclosure of addresses).

 

THE CASE

There has been long running litigation between the parties.  The “Brake” parties (they were claimants in one action and defendants in another). Moved address.  They had not given a new address for service.

THE ISSUE IDENTIFIED BY THE JUDGE

 

The Brakes’ address for service
  1. The second matter I should mention now is the question of the Brakes’ address for service. The House was previously their address for service in these proceedings. As I have said, however, the Brakes vacated the House on 24 April 2022. They do not act by solicitors, but in person, and yet have not so far supplied the Guy Parties (or the court) with their new address for service. Mrs Brake told me that they had moved from the House to what they called “holiday accommodation” which, she said, by its very nature was not long-term, and the address of which she has declined to disclose.

THE JUDGMENT ON ADDRESS FOR SERVICE

The judge held that the court did have a discretion to withhold an address from an opposing litigant. However that discretion would only be exercised in exceptional circumstances.  Such circumstances did not exist here and the Brake parties were ordered to file details of their address.

Address for service
    1. I begin with the question of the Brakes’ address for service. The relevant procedural rules in the CPR are these:
“6.23. (1) A party to proceedings must give an address at which that party may be served with documents relating to those proceedings. The address must include a full postcode unless the court orders otherwise. …
(2) Except where any other rule or practice direction makes different provision, a party’s address for service must be –
[ … ]

(c) where there is no solicitor acting for the party –

(i) an address within the United Kingdom at which the party resides or carries on business; …

[ … ]
6.24. Where the address for service of a party changes, that party must give notice in writing of the change as soon as it has taken place to the court and every other party.”
    1. Mrs Brake told me that she did not want Dr Guy or those associated with him to know her new physical address. She was prepared to disclose it to the Guy Parties’ solicitors, and to the court, but only on the basis that it was not passed to Dr Guy. The Guy Parties said that that was unworkable and would increase costs (for example, because of the need for redaction of communications to and from the Brakes which were passed to Dr Guy). Mrs Brake confirmed that the Brakes were content to be served by email. The Guy Parties pointed out that under the rules sometimes personal service was needed.
    1. The first question is whether the rules actually require a physical address, or whether the supply of an email address is sufficient to comply with them. In Smith v Marston Holdings Ltd [2020] EW Misc 23 (CC), a county court case, the applicant for pre-action disclosure gave as his address a physical address which was demonstrated to be a shop where postal mail could be received and held until called for; in other words, an accommodation address. It was submitted that this did not comply with the rules.
    1. I considered the wording of CPR r 6.23, and the comment in the 2020 White Book at paragraph 6.23.1 as follows:
“It should be noted that where a solicitor’s or European lawyer’s address is not given under (2)(a) or (b) the address must be an address within the UK or EEA state at which the party resides or carries on business. The precise wording of this rule is important because on occasions defendants attempt to give a PO box address as an address for service. However, a person cannot ‘reside’ at or ‘carry on business’ at a PO box although such a business might be carried on by using such a PO box address. In the circumstances a PO box would not be a valid address for service under that rule.”
    1. I then said this:
“27. I respectfully agree with the reasoning in this comment. The use of a post office box number or accommodation address, where the person concerned neither resides not [sic] carries on business, does not comply with the rule. This is yet further unacceptable behaviour by the applicant. Mr Edwards said that the consequence was that the court might strike out the proceedings. There is of course a power in CPR rule 3.4 to strike out a statement of case where there has been a failure to comply with a rule: see rule 3.4(2)(c). But an application notice is not a statement of case: see the definition in CPR rule 2.3(1). On the other hand, the court clearly has general management powers under rule 3.1, including the power to stay the whole or part of any proceedings: see rule 3.1(2)(f). In an appropriate case, that might be a suitable sanction, until a compliant address were provided. But in circumstances where I have decided on other grounds to refuse the applications as totally without merit, it is not necessary to take the matter further, apart from recording this further example of bad litigation practice.”
    1. I adhere to that view. But, if you cannot ‘reside’ at or ‘carry on business’ at a PO box, then by parity of reasoning an email address will not satisfy the rules either, because you cannot reside or carry on business at such an address. Whether the rules should continue to require a physical address, or whether an email address should be considered sufficient for service, are not matters for me, but (if for anyone) for the Rules Committee. I must apply the procedural rules as I find them. As the Guy Parties say, there are cases where personal service is needed, and a person’s place of residence or business is a good starting point to locate that person.
    1. The next question is whether the court can dispense with or qualify the requirement to provide a physical address, for example by directing that it be not disclosed to someone else. In E Group Ltd v Baker [2008] EWHC 2349 (TCC), the defendant was acting in person, and frequently complained that she had not received documents relating to the litigation. Coulson J (as he then was) said this:
“4. Following a number of delays in the early life of the case, on 12th February 2008 Ramsey J made an order that:

‘The address provided to the court today by the defendant is the proper address for service on the defendant, such address not to be disclosed to a third party without an order of the court.’

This was a highly unusual order, but it was designed to ensure that the claimants knew when and where they could serve documents on the defendant, so as to avoid the difficulties that were being created by the defendant and her persistent claims that she had not received documentation.”
    1. Whilst that decision recognises the power of the court to withhold a party’s address from a non-party, it does not say anything about a power to withhold the address from a party, who (as the judge makes clear) will wish to know where to serve the other party or parties. The court’s powers to disclose or withhold information it holds to others are governed by CPR rules 5.4A to 5.4D.
    1. In relation to non-parties, the relevant rule is CPR rule 5.4C, which materially provides:
“(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing).

[ … ]
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
[ … ]
(4) The court may, on the application of a party or of any person identified in a statement of case –

(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b) restrict the persons or classes of persons who may obtain a copy of a statement of case;
(c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or
(d) make such other order as it thinks fit.

[ …].”
    1. The court’s power in relation to withholding information from other parties is however contained in CPR rule 5.4B, which relevantly provides:
“(1) A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A of Practice Direction 5A.
(2) A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person.”
    1. The rule distinguishes between (1) obtaining a copy of another document of a certain kind, listed in PD 5A para 4.2A, including statements of case, application notices, acknowledgments of service, statements of costs, and various other kinds of notice, and (2) obtaining copies of other documents and communications. In relation to (1), the default rule is in favour of disclosure, whereas in relation to (2) it is in favour of withholding. But in either case it is the court that must decide in case of any dispute.
    1. I add two comments for the sake of completeness. First, it is clear that the provisions of rule 5.4C (at least) are not exhaustive of the inherent power of the court to make information it controls available in order to advance open justice (Cape Intermediate Holdings Ltd v Dring [2020] AC 629). Nevertheless, it is still the court that makes the decision. Secondly, although in family proceedings the basic rules about parties providing an address for service (FPR rules 6.26 and 6.27) are in substance identical to those in CPR rules 6.23 and 6.24, the rules about disclosure of information held by the court to other parties are quite different (see FPR rule 29.1 and Form C8). I therefore need not and do not consider the position in family cases, where it is common for parties to apply (and to be permitted) to withhold their addresses from other parties.
    1. Accordingly, in my judgment it is clear that the court in civil proceedings has power to withhold the address of one party from another party if it considers it right to do so. It is possible to imagine circumstances where this might be appropriate. For example, suppose one party has made threats to hurt or even kill another party, and the latter has gone into hiding and then seeks an injunction against the former. That is an extreme case, but it illustrates the point. There has to be some sufficiently strong countervailing factor to justify withholding a party’s address for service from another party. The question for me is whether the Brakes can show a sufficient justification for the court taking such a step here.
  1. In my judgment they cannot. There is no evidence of any threat by Dr Guy or his associates to cause any unlawful harm to the Brakes at all. There is no suggestion (and certainly no evidence to support such a suggestion) that Dr Guy has any intention of attending at or picketing her place of residence. Mrs Brake did not suggest any reason why Dr Guy would be at all concerned to do so. The fact is that Mrs Brake simply does not want Dr Guy to know where she lives. But, in my judgment, that is not good enough. Accordingly, the Brakes must file their (physical) address for service, complying with rule 6.23, within seven days of the date of the handing-down of this judgment, and must update it as required by rule 6.24, until these proceedings (including any appeals) are concluded.
Tags: ,