PROVING THINGS 235: PROVING SERVICE: COUNCIL’S WHOLESALE FAILURE TO SERVE CLAIM FORMS PROPERLY: ATTEMPTS AT PERSONAL SERVICE WERE A PREREQUISITE TO SERVICE BY ALTERNATIVE MEANS

An important point as to service of the claim form arose in the judgment of Mr Justice Nicklin in Thurrock Council v Stokes & Ors [2022] EWHC 1998 (QB). The claimant had issued proceedings against multiple defendants. It obtained an order for an alternative method of service. However that order was conditional upon personal service being attempted first. There was no evidence that personal service was ever attempted.  As it was the claimant’s action failed on substantive grounds, due to the absence of evidence.  The court did need to determine the issue relating to service of the claim form.  It is clear that the action would have failed on that ground.

“the evidence of the process servers does not confirm that efforts were made to serve the Claim Form personally, and that such steps were unsuccessful. That was a prerequisite for alternative service under the order.”

THE CASE

The claimant council issued proceedings against 107 named defendants and “persons unknown” said to be setting up sites on council property . Proceedings were issued and “served”,  and then remained dormant for a period.    The matter proceeded to a hearing for a final injunction.  The defendants did not attend and were not represented at the hearing.

SERVICE OF PROCEEDINGS

The claimant had obtained an order stating that if it was unable to serve the claim form personally it could affix proceedings to, or near, the residential premises in which the defendants were believed to live.  It is important to note that, as the judge found, this gave rise to a condition precedent.  The claimant first had to attempt to serve the defendants personally and then, if unsuccessful, use the alternative method. The defendant provided no evidence that any attempts had been made in relation to personal service.

THE JUDGMENT ON THIS ISSUE

The judge highlighted the importance of the defendants being served.  He pointed out that the methods used by the claimant did not comply with the terms of the order.

1. 9. The first issue of concern is whether the Claim Form has actually been received by each of the Defendants. Thurrock’s claim is that each of the named Defendants is a member of the Gypsy or Traveller communities and that, therefore, they threaten to form further unauthorised encampments on land. Service of legal documents on members of such communities presents some challenges. Unless the Court permits another method, a Claim Form is required to be served personally on a defendant to a civil claim who is an individual.

1. 10. Largely anticipating the difficulties of personally serving a Claim Form on a largely itinerant community, on 31 July 2019, Thurrock obtained an alternative service order, without notice to the Defendants, the material parts of which provided:

“In the event that the Claimant is unable to personally serve the 1st to 107th Defendants, pursuant to CPR 6.14 and 6.15 the Claimant shall be permitted to serve any such Defendants by leaving a copy (as opposed to an original) of the application notice, claim form, draft order and supporting evidence in a clear transparent envelope and affixing the same to a caravan, mobile home or other vehicle, or to the front door of any residential premises which in each case is reasonable (sic) believed to be owned or occupied by the said Defendants, or by putting such copy documents through the letter box of any such residential premises. Any such copy documents served by this method will be deemed served the second working day after service of the application notice and claim form.”

1. 11. Thurrock has obtained and filed witness statements from the process servers who served the Claim Form (and other documents) on the named Defendants. The evidence demonstrates that not one of the 107 named defendants was served personally. That statistic is striking and surprising, but also troubling. I have become increasingly concerned in this case as to the confidence I can have that the named Defendants have actually received the Claim Form and whether they know anything about these proceedings. Service of a Claim Form on someone you contend is a member of an itinerant community, at a fixed address given as the address of the registered keeper of a vehicle, carries with it an obvious risk that the address used has no real or continuing connection with that individual.

1. 12. The failure to serve the Claim Form personally on any named Defendant also means that Thurrock must rely upon the alternative service order it obtained to validate service of the Claim Form on the named Defendants to establish jurisdiction over them. However, the evidence of the process servers does not confirm that efforts were made to serve the Claim Form personally, and that such steps were unsuccessful. That was a prerequisite for alternative service under the order. Compliance with the alternative service order has become a point of significance in relation to the 11th Defendant, Brian Murphy (see [73]-[75] below). Subject to my decision on the claims against each remaining Defendant, it may be necessary to inquire further whether there has been proper compliance with the terms of the alternative service order.

13. Finally, the Part 8 Claim Form did not include the address at which the Defendants to the claim can be served, as required by CPR 6.6(2). The addresses at which the Claim Form was actually served on each Defendant can only be identified from the witness statements of the process servers.

IN INDIVIDUAL CASES

The judge turned to one case where there was no evidence at an attempt on personal service. Even the alternative service method was incorrect as was left at a business address on an industrial estate, not at residential premises as required by the court order.

72.Before turning to consider the evidence against Mr Murphy I would note that there is, included in the trial bundles, a letter from the DVLA, dated 17 April 2019, responding to an inquiry as to the registered keeper of vehicle index YF13 *KY as at 15 February 2016. No similar inquiry appears to have been made to confirm that Mr Murphy was still the registered keeper of the vehicle in the period May to August 2018.

73.Further the address given by the DVLA for Mr Murphy is a unit at the Crayfield Industrial Park in Orpington. A search engine inquiry suggests that this is a business, not residential, address.

74.The witness statement from a process server, dated 27 August 2019, confirms that the Claim Form was served (together with other documents) by posting it through the letter box at the Industrial Park address, provided by the DVLA, on 21 August 2019.

75. I do not have any evidence as to whether Thurrock attempted to serve the Claim Form personally on Mr Murphy so as to be entitled to utilise the method of alternative service provided in the order (see [10] above). Assuming that Thurrock could demonstrate that it did make efforts to serve the Claim Form personally on Mr Murphy, but failed, it nevertheless appears that the Claim Form has not been validly served on Mr Murphy because it was not served in accordance with the alternative service order. The short point is that the service address does not appear to be a residential premises. Certainly, the witness statement of the process server does not state that it was a residential premises that was “reasonably believed to be to be owned or occupied” by Mr Murphy. If that is right, and unless the failure validly to serve the Claim Form is now capable of being remedied, no relief can be granted against Mr Murphy. Unless validly served with the Claim Form, Mr Murphy is simply not a Defendant to the claim.

76. As this point has arisen since the hearing of the claim, I shall give Ms Bolton and her team an opportunity to make any further submissions on behalf of Thurrock on this point following receipt of the draft judgment.