SERVICE ON A SOLICITOR WAS NOT DEFECTIVE: WHAT IS MEANT BY A “PLACE OF BUSINESS”?

In Ellison Road Ltd v Mian (t/a HKH Kenwright & Cox Solicitors) & Anor [2023] EWHC 375 (Ch) Master Brightwell rejected a defendant’s argument that he had not been properly served at his “place of business”.  The case shows the ingenuity that can be used by defendant’s in an attempt to argue that service has not taken place properly. It also highlights the dangers of leaving issue to the end of the limitation period and then delaying service until the very end of the period allowed.  The claimant here was successful on the service issues, but in delaying service had run a major risk.

“As the claim form was, in time-honoured fashion, issued at the end of the relevant limitation period and served or sought to be served at the end of the four-month period provided by CPR rule 7.5(1), the first defendant has applied by application notice dated 6 October 2022 under CPR rule 11(1) for a declaration that the court has no jurisdiction to try the claim.”

THE CASE

The claimant brought an action against two defendants. The first defendant “”the defendant” was a solicitor who was, at the time of the cause of action, a sole practitioner. he was sued as Khurram Mian t/a HKH Kenwright & Cox Solicitors.

SERVICE ON THE FIRST DEFENDANT

The first defendant was served at an address at which he had practised as a solicitor, that was 20 Old Bailey.

THE FIRST DEFENDANT’S APPLICATION IN RELATION TO SERVICE

The defendant made an application under CPR Part 11 for a declaration that service had not been effective.   He argued that the address that the claim form was served at was not, at the time of service, his place of business, nor was it his “last know” place of business.  It was the place of business of a firm of solicitors in which the first defendant was involved, but not the first defendant’s place of business.  The claimant had failed to take reasonable steps to ascertain his last known business address.

THE STEPS TAKEN BY THE CLAIMANT PRIOR TO SERVICE

1. 1. As to the documents delivered to 20 Old Bailey, the claimant relies on the first witness statement of his solicitor, Mr Edward Mercer. Mr Mercer explains that, before determining where to serve the claim form, the claimant knew that 15 Old Bailey was in a state of redevelopment, because his firm had previously carried on business there. He explains that the claimant thus consulted the SRA website and the Companies House website. He says that the latter gives an Essex address for correspondence for Mr Mian, which appears from the evidence given on behalf of Mr Mian and mentioned at [13] below to be incorrect.

1. 1. The SRA website entry for Mr Mian in evidence, under the heading, “Where this person works” gives the name of Moriarty Law Limited, and under the heading “Firm or organisation at date of publication”, the name of Moriarty Law Limited is again given, together with the address of 20 Old Bailey. The website also states that Mr Mian was prosecuted by the SRA with an outcome date of 16 July 2021 and a published date of 9 March 2022. It does not give details of the nature of the prosecution, but says that the matter was heard by the Solicitors Disciplinary Tribunal on 27 May 2022 and that Mr Mian was fined £2,500. The only reference to HKH Kenwright & Cox Solicitors at 15 Old Bailey is under a heading, “Firm or organisation at time of matters giving rise to outcome”. In other words, the SRA website clearly indicates that Mr Mian is no longer in practice as HKH Kenwright & Cox Solicitors at 15 Old Bailey, but at the second defendant, and at 20 Old Bailey.

1. 1. Mr Mian however contends in the first witness statement filed on his behalf by his solicitor, Ms Sophie Briggs, that 20 Old Bailey is not his principal or last known place of business. Ms Briggs says that 20 Old Bailey “is the address of Moriarty Law Limited, and whilst Mr Mian is a director of Moriarty Law Limited, section 1140 [i.e. Companies Act 2006] provides that directors of a company are to be served at the address given for service by that individual, which in the case of Mr Mian was 15 Old Bailey”. Mr Mian relies on the Companies House details for the second defendant, where his correspondence address is given as 15 Old Bailey. It is clear, although I consider ultimately irrelevant, that this correspondence address was in fact incorrect in that Mr Mian’s correspondence address was not 15 Old Bailey by the time that the claimant sought to serve the claim form. The claimant also knew it to be incorrect because 15 Old Bailey was not in use. Furthermore, Mr Innes accepted at the hearing that section 1140 would be relevant only if Mr Mian were sued as a director of the second defendant, which is not the case here.

1. I would also note that Ms Briggs says that Mr Mian lives in Dubai. Mills & Reeve have since the issuing of the first defendant’s application declined to give an address for Mr Mian in Dubai, saying that it is confidential.

THE MASTER’S FINDINGS

The Master rejected the defendant’s argument that he was being sued as an individual and service could not take place at a “place of business”.  He then considered, and rejected, the defendant’s argument that 20 Old Bailey was not the defendant’s “place of business” but the place of business of a limited company, trading as solicitors, of which he was a director.

1. 1. It is then Mr Mian’s position that 20 Old Bailey was not at any time his place of business. Mr Innes submits that this place of business must be the place of business of HKH Kenwright & Cox Solicitors and not the place of business of Mr Mian. 20 Old Bailey was never the place of business of HKH Kenwright & Cox Solicitors. Further, and in any event, 20 Old Bailey was not the principal or last known, or current, place of business of Mr Mian. This, it is said, was recognised by the fact that the address for service in the claim form was shown as “care of” Moriarty Law Limited at 20 Old Bailey.

1. 1. I reject the submission that the relevant place of business is that of HKH Kenwright & Cox Solicitors only and not of Mr Mian. HKH Kenwright & Cox Solicitors was not a legal entity but rather the trading name adopted by Mr Mian as a sole practitioner. CPR rule 6.9(2) is clear in providing that the relevant place is the principal or last known place of business of an individual who is sued in the name of a business. It is instructive to compare the provision at line 3 in relation to service on an individual being sued in the business name of a partnership. Such person must be sued at the “usual or last known residence of the individual; or the principal or last known place of business of the partnership” (emphasis added). There are no comparable words, i.e. ‘of the business’, at the end of line 2; the relevant place of business must be that of the individual. There is also a recognition that a person may carry on business at more than one place in that there may be a principal place of business and, it must follow, that they may carry on more than one business.

1. 1. Mr Mercer’s first witness statement explains that the claimant knew that Mr Mian was not carrying on business at 15 Old Bailey, as its solicitors knew that the building was being redeveloped. The solicitors therefore consulted the SRA website, and found that Mr Mian was practising as a solicitor from Moriarty Law Limited, and that the address provided to the SRA and thus by the SRA to the public for that firm was 20 Old Bailey. It is therefore submitted that they thus ascertained Mr Mian’s current business address and served him with the claim form there, i.e. in accordance with CPR rule 6.9(4)(a).

1. 1. Mr Innes submitted that the steps taken by the claimant’s solicitors were not reasonable for the purposes of CPR rule 6.9(3). He suggested that they should have contacted Mills & Reeve and enquired whether they would accept service or provide Mr Mian’s address. He also submitted that they knew that Companies House gave 15 Old Bailey as the correspondence address for Mr Mian as a director of the second defendant.

1. 1. Mr Innes did not submit that Mr Mian was not in fact holding himself out as practising as a solicitor at Moriarty Law Limited, or that the address given on the SRA website, i.e. 20 Old Bailey, was not the address at which that firm carried on business. I consider that 20 Old Bailey was at 9 September 2022 Mr Mian’s current place of business, and furthermore that the claimant through his solicitors had taken reasonable steps in ascertaining that address as Mr Mian’s current business address. The public is entitled reasonably to assume that the information published by the SRA about a practising solicitor is correct. It would have been obvious that the Companies House address was out of date as the building was not in use and the claimant did not rely on it. Once the address had been ascertained it was not reasonably necessary to make further enquiries of Mills & Reeve; the duty is to carry out reasonable steps, not to make every possible enquiry.

1. 1. Further, in light of this conclusion, nothing turns on the use in the amended claim form of the words “care of” after Mr Mian’s name and before the service address. Mr Innes did not suggest that the use of these words invalidates what is otherwise good service. The words are in any event explicable as Mr Mian was being sued as an individual and not as a director of the second defendant, which was of course also being sued in the same proceedings.

1. Accordingly, I hold that the claimant has effected good service of the claim form on the first defendant and I dismiss the first defendant’s application.