ANOTHER CLAIM FORM CASE TO BRIGHTEN UP YOUR DAY: SERVICE AT THE LAST KNOWN ADDRESS: CLAIMANT SUCCESSFUL IN HIS ARGUMENTS ABOUT KNOWLEDGE

May 3, 2023 · by · in Applications, Service of the claim form

There are a number of issues relating to service of the claim form in the judgment of Peter MacDonald Eggers KC (sitting as a High Court Judge) in Boettcher v (Xio (UK) LLP & Ors [2023] EWHC 801 (Comm). Here I want to look at the issues relating to service at the “last known address”.  In this case the claimant served at an address at which the defendant no longer lived.  However the claimant was entitled to rely on the fact that he had a good arguable case that he believed the address for service was the defendant’s last known residence.  Service at this address was, therefore, valid.

“In my judgment, the evidence establishes a good arguable case that 33SR was Mr Geyer’s last known residence, as far as Dr Boettcher was aware or ought to have been aware by the exercise of reasonable diligence, within the meaning of CPR rule 6.9(2)”

THE CASE

The claimant had served a claim form on Mr Geyer, one of the defendants in the case.  Service had taken place at an address in England. Mr Geyer argued that proceedings had been served at an address he no longer lived at and service was therefore invalid.  An application was made to dispute jurisdiction.

THE JUDGMENT ON VALIDITY OF SERVICE

(1) Validity of service on Mr Geyer at 33SR
    1. CPR rule 6.9(2) provides that the Claim Form must be served on an individual at his or her “Usual or last known residence“.
    1. However, CPR rule 6.9(3) provides that “Where a claimant has reason to believe that the address of the defendant referred to in [CPR rule 6.9(2)] is an address at which the defendant no longer resides …, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence … (‘current address’)“.
    1. CPR rules 6.9(4)-(6) then set out what the claimant may and must do upon taking such reasonable steps:
(1) If the claimant ascertains the defendant’s current address, the Claim Form must be served at that address (CPR rule 6.9(4)(a)).
(2) If the claimant is unable to ascertain the defendant’s current address, the claimant must consider whether there is (i) an alternative place where; or (ii) an alternative method by which, service may be effected (CPR rule 6.9(4)(b)). If there is such a place or method, the claimant must make an application under CPR rule 6.15 (CPR rule 6.9(5)).
(3) If the claimant cannot ascertain the defendant’s current residence and cannot ascertain an alternative place or an alternative method, the claimant may serve on the defendant’s usual or last known residence in accordance with CPR rule 6.9(2) (CPR rule 6.9(6)).
    1. In this case, Dr Boettcher purported to serve the proceedings on Mr Geyer within the jurisdiction at 33SR on 1st October 2021. Mr Geyer’s evidence (paragraph 8 of his first witness statement) and the evidence of his then solicitor, Ms Lydia Danon (her first witness statement, at paragraphs 33-36), is that Mr Geyer ceased to reside at 33SR from 31st January 2018 and surrendered his lease of the flat on 31st March 2018 (which lease was due to expire on 11th September 2018). Although Dr Boettcher does not admit this evidence, other than the evidence referred to below, there is no evidence contradicting it. Furthermore, Swiss residence cards and official correspondence evidence Mr Geyer’s residence in Switzerland from on or around 1st March 2021 (Ms Danon’s second witness statement, paragraph 18). Accordingly, 33SR was not Mr Geyer’s usual residence.
    1. Mr William Day, who appeared with Ms Anca Bunda on behalf of Dr Boettcher, however, does not put his case on the basis that 33SR was Mr Geyer’s usual residence, but that instead it was his last known residence.
    1. I was referred to a number of authorities which address the concept of “last known residence“, in particular Mersey Docks Property Holdings v Kilgour [2004] EWHC 1638 (TCC), para. 62-64; Marshall v Maggs [2006] EWCA Civ 20; [2006] 1 WLR 1945, para. 66, 68 and 71; Relfo Ltd (in liquidation) v Varsani [2009] EWHC 2297 (Ch), para. 20 and 34; Ivanchev v Velli [2020] EWHC 1917 (QB), para. 36-38. Based on these authorities, the following observations may be made about the concept of the defendant’s last known residence in order to test the validity of service at that address:
(1) The claimant must establish that there is a good arguable case that the address at which service was effected was the defendant’s last known residence. This means that, on the evidence available, the claimant has the better of the argument on this issue than the defendant.
(2) The defendant’s last known residence need not be the defendant’s usual residence.
(3) The defendant may have more than one last known residence.
(4) The defendant’s last known residence may be a residence at which the defendant is residing or no longer resides (having once resided there) at the time of the purported service of process. It cannot be an address at which the defendant never resided.
(5) Knowledge of the defendant’s residence in this context refers to the claimant’s actual knowledge or constructive knowledge, i.e. knowledge which the claimant could have acquired exercising reasonable diligence. An honest or even reasonable belief is not sufficient if the defendant never resided at the relevant address.
(6) The claimant’s state of knowledge is to be assessed as at the date on which the proceedings were served at the address in question.

APPLYING THESE PRINCIPLES TO THE CURRENT CASE

    1. With these principles in mind, I turn to the evidence in connection with Dr Boettcher’s case that 33SR was Mr Geyer’s last known residence and Dr Boettcher had no reason to believe that Mr Geyer no longer resided there. Of course, Mr Geyer’s evidence is that he had resided at 33SR but he ceased to reside at 33SR since January 2018.
    1. Mr Day on behalf of Dr Boettcher relied on the following matters:
(1) Dr Boettcher understood that Mr Geyer lived at 33SR because in December 2015 (immediately before he was due to start in his new role at Xio UK) he and Mr Geyer were to fly to Germany together and they shared a taxi from Central London (where Mr Geyer was collected at 33SR) to Heathrow Airport after the Xio Christmas party (Dr Boettcher’s first witness statement, paragraph 5).
(2) After Dr Boettcher joined Xio UK in January 2016, Mr Geyer had informed him that he lived at 33SR and that it was his correct postal address and that the address had been entered into Dr Boettcher’s Outlook details for Mr Geyer, although he was also aware that Mr Geyer had a property (and family) in Frankfurt (Dr Boettcher’s first witness statement, paragraphs 6 and 9(i)).
(3) In February 2021, Dr Boettcher obtained, via a subscription data service, two writs of summons dated April and May 2019 from Cayman Island Court proceedings that referred to Mr Geyer. The first of these writs referred to Mr Geyer’s address as “16 Ennismore Gardens, London SW7 1AA, United Kingdom and/or Flat 10, Savile Row, London W1S 3PZ, United Kingdom” (Dr Boettcher’s first witness statement, paragraphs 7-9).
(4) On 15th June 2021, Dr Boettcher’s solicitors sent a letter of claim by email to Mr Geyer. The addresses given on that letter were “Flat 10, Savile Row, London W1S 3PZ” and the Ennismore Gardens address. Mr Geyer must have received the letter of claim because there was no “bounce-back” or any automated response that the email address was no longer active and because, although Mr Geyer did not reply directly to Dr Boettcher’s solicitors, he sent a text to a mutual contact at EY (where Dr Boettcher has worked since June 2019) with a message to pass on to Dr Boettcher; Dr Boettcher told the mutual contact that this was a matter between him and Mr Geyer and he did not want to get EY involved (the first witness statement of Ms Lorraine Lanceley, of Stewarts Law, at paragraph 25). Mr Geyer did not state that he no longer resided at 33SR. The letter of claim was sent by post to “Flat 10, Savile Row, London W1S 3PZ” (i.e. without the building or street number) on 18th June 2021, but was returned on 22nd June 2021, because the address was incomplete.
(5) On 2nd August 2021, Dr Boettcher’s solicitors (Stewarts Law) sent an email to Mr Geyer, referring to the letter of 15th June 2021, inviting him to accept service of proceedings by email and offering pre-action mediation. Stewarts Law stated that they have “made the reasonable assumption that you have safely received and considered the Letter of Claim …”. In that email, a request was made that Mr Geyer “confirm your preferred postal address at your earliest convenience. This information is required for the purposes of formal service of our client’s claim“. Mr Geyer did not respond to this letter nor informed Dr Boettcher’s solicitors that he no longer resided at 33SR (Ms Lanceley’s first witness statement, para. 35).
(6) On 3rd September 2021, Dr Boettcher’s solicitors sent a further letter of claim to Mr Geyer by Royal Mail Special Delivery to 33SR, because the letter of claim sent on 18th June 2021 had been returned marked “Address incomplete”. This letter of claim was successfully delivered, because it was not returned and delivery was confirmed by the Royal Mail tracking information (Ms Lanceley’s second witness statement, paragraphs 11, 15-16).
(7) On 14th September 2021, having had no response from Mr Geyer, Dr Boettcher’s solicitors wrote both to Mr Geyer’s current business address (SGT Capital) and also to the solicitors that Mr Geyer had instructed in the Cayman Island proceedings, enclosing the letter of claim, noting that correspondence was being sent to 33SR, and requesting acknowledgment of receipt. Mr Geyer did not respond to that letter.
(8) During September 2021, Dr Boettcher engaged a private investigation firm (Phoenix Consultancy), who identified non-specific connections in data sources from September 2014 to September 2021, with a “confirmed connection” on 6th June 2021 (Ms Lanceley’s second witness statement, paragraph 23).
(9) On 21st September 2021, a search also suggested that SGT Capital (Mr Geyer’s employer) had a presence at serviced offices in Stratton Street, Mayfair, a short walk from 33SR (Ms Lanceley’s second witness statement, paragraph 25).
(10) Importantly, also on 21st September 2021, a senior paralegal at Stewarts Law (Dr Boettcher’s solicitors), Ms Aarti Chadda, gave evidence that she obtained the telephone number for the porter at 33SR from an estate agency, she telephoned the porter’s desk at 33SR (a call which lasted about one minute), and the porter on duty confirmed that Ms Geyer rented Flat 10, that he was “often seen coming and going”, and that any letter sent to Mr Geyer by Royal Mail would have been placed in the post box for that flat (Ms Chadda’s first witness statement, paragraphs 14-20).
(11) On 1st October 2021, Dr Boettcher’s solicitors purported to serve the Claim Form and related documents on Mr Geyer at 33SR by way of first class post; these documents were not returned (Ms Lanceley’s second witness statement, paragraph 26).
    1. Mr Day therefore submitted that:
(1) There is at least a plausible evidential case (if not significantly more than a plausible case) that Dr Boettcher served the proceedings at the place that he actually understood to be Mr Geyer’s last known residence within the meaning of CPR rule 6.9(2), and he undertook more than reasonable diligence when seeking to verify that understanding.
(2) Dr Boettcher had received no information which contradicted his understanding of what was Mr Geyer’s last known residence. Therefore, Dr Boettcher had no reason to believe that Mr Geyer no longer resided at 33SR.
(3) Dr Boettcher, by his solicitors, attempted to contact Mr Geyer on a number of occasions, and sought confirmation of his preferred address for the service of process, and while it is likely that Mr Geyer received this correspondence, he did not reply directly to Dr Boettcher or his solicitors and did not correct any mistake as to his residence.

THE DEFENDANT’S ARGUMENTS

    1. Mr Paul Lowenstein KC, who appeared with Ms Maria Kennedy on behalf of Mr Geyer (and Mr Pacini), submitted that there was no valid service of the Claim Form and the Particulars of Claim within the jurisdiction because 33SR was not Mr Geyer’s “usual or last known residence“. Mr Lowenstein KC contended that 33SR was not Mr Geyer’s last known residence, because:
(1) Even on Dr Boettcher’s own evidence, 33SR was not Mr Geyer’s last known residence:

(a) After the letter of claim was returned to Dr Boettcher on 22nd June 2021 because the address was incomplete, Dr Boettcher did not then persist with service in London, but instead on 26th July 2021 submitted a request to Frankfurt City Hall for Mr Geyer’s registered address in Frankfurt and was sent confirmation the next day that Mr Geyer had an address at Hansaalee 7, 60322, Frankfurt am Main, Germany (Dr Boettcher’s first witness statement, paragraph 21; Ms Lanceley’s second witness statement, paragraph 12). Dr Boettcher sent the letter of claim to Mr Geyer at the Frankfurt address (Dr Boettcher’s first witness statement, paragraph 21).

(b) On 29th and 30th August 2021, Dr Boettcher identified a further address for Mr Geyer in Wilen bei Wollerau, Switzerland from about 1st March 2021 and arranged to have the letter of claim sent to Mr Geyer to the Swiss address (Dr Boettcher’s first witness statement, paragraph 22 and 24).

(c) By no later than late August/early September 2021, Dr Boettcher knew that Mr Geyer resided in Switzerland, having previously resided in Germany, Mr Geyer did not reside at 33SR and thus 33SR was not Mr Geyer’s usual or last known residence.

(d) When, on 1st October 2021, Dr Boettcher purported to serve the proceedings on Mr Geyer at 33SR (which documents were also forwarded by email), Mr Geyer responded on 8th October 2021 to say that he did not live at 33SR, he was resident in Switzerland and not in the United Kingdom and had not provided Dr Boettcher with an address for service in the United Kingdom. Mr Geyer repeated that he did not live at 33SR on 16th October 2021 and subsequently (Ms Danon’s first witness statement, paragraphs 18 and 22; Ms Lanceley’s second witness statement, paragraph 27).

(2) The Cayman Islands writ of summons dated 8th April 2019 relied on by Dr Boettcher as evidence of his knowledge of Mr Geyer’s residence provides no evidential basis to establish that 33SR was Mr Geyer’s usual or last known residence because:

(a) It was two and a half years old by the time Dr Boettcher purported to serve process at 33SR.

(b) It was not prepared by Mr Geyer, but by a law firm acting for the plaintiff in the Cayman Islands proceedings.

(c) It provides two possible addresses for Mr Geyer: (i) “Flat 10 Savile Row, London W1S 3PZ“, which is incomplete lacking the building number and (ii) 16 Ennismore Gardens, London SW7 1AA.

(d) A later writ of summons in different Cayman Islands proceedings dated 8th May 2019 gives Mr Geyer’s address only as that at Ennismore Gardens.

(e) The address at Ennismore Gardens was the address which Mr Geyer had provided in his affidavits filed in the Cayman Islands proceedings in June 2019 (Ms Danon’s first witness statement, paragraph 44.2).

(3) As to Ms Chadda’s evidence of her conversation with the porter at 33SR:

(a) On 20th October 2021, Mr Geyer’s former solicitor (Ms Danon of Cooke Young & Keidan) spoke to the porter (named “Hassam“) who checked his computer and confirmed that he was, in fact, on duty in the building at 33SR on 3rd and 21st September 2021. The porter confirmed that he would not have accepted a document on behalf of Mr Geyer because he was not resident at 33SR at that time, he did not recall any conversation with anyone on 21st September 2021 concerning Mr Geyer’s residency at 33SR and that he was “doubtful” that any conversation with Stewarts Law took place, he had an up-to-date list of residents in the building and knew that Mr Geyer was not one of them (Ms Danon’s first witness statement, paragraph 53).

(b) There are a number of gaps in Ms Chadda’s evidence about her telephone conversation with the porter at 33SR, including the name of the porter, confirmation that the person with whom she spoke was the porter on duty, the telephone number she used to call the porter, the words used in her conversation and the questions put to the porter (Ms Danon’s first witness statement, paragraphs 55-57).

(c) Ms Chadda’s evidence does not establish that Dr Boettcher has the better of the argument as to Mr Geyer’s last known residence.

(4) The evidence that 33SR was a short distance from the offices of SGT Capital provides no support for any conclusion that Mr Geyer resided at 33SR. Further, Mr Geyer has confirmed that SGT Capital has no office in Mayfair or indeed England (Mr Geyer’s first witness statement, paragraph 44.1).
(5) The report by Phoenix Consultancy does not identify the instructions given by Dr Boettcher and further was produced in January 2022 three months after the purported service took place (Mr Geyer’s first witness statement, paragraphs 50.1-50.3).
(6) Dr Boettcher therefore had good reason to believe that Mr Geyer’s last known residence was in Switzerland and not in London.
(7) Alternatively, to the extent that the evidence of what was Mr Geyer’s last known residence was inconclusive, it was open to Dr Boettcher to apply to the Court to undertake service by an alternative method, such as by email in accordance with CPR rules 6.9(4)-(5) and 6.15, but no such application was made.
(8) On any view, purported service on Mr Geyer at 33SR on 1st October 2021 was not good service on him.

THE JUDGE’S CONCLUSIONS

    1. In my judgment, the evidence establishes a good arguable case that 33SR was Mr Geyer’s last known residence, as far as Dr Boettcher was aware or ought to have been aware by the exercise of reasonable diligence, within the meaning of CPR rule 6.9(2) for the following reasons.
    1. First, Mr Geyer had resided at 33SR until January 2018 and Dr Boettcher had been informed by Mr Geyer, whilst Dr Boettcher worked at Xio UK, that he lived at 33SR but also had a property (and family) in Germany. However, it appears that Mr Geyer did not then reside in Germany (Mr Geyer’s first witness statement, paragraph 46).
    1. Second, Dr Boettcher made a number of inquiries, by means of contacting Mr Geyer directly, the use of a private investigation consultant, obtaining information about Mr Geyer’s address in Germany and Switzerland, and instructing his solicitors to make enquiries with the porter at 33SR. Those inquiries revealed that Mr Geyer still had a residence at 33SR, even if that was not accurate, and also had a residence in Germany and/or Switzerland. The only evidence which Dr Boettcher obtained which might be said to indicate that Mr Geyer no longer resided at 33SR was the evidence that Mr Geyer now had a residence in Switzerland. However, the fact that Mr Geyer had multiple residences is not a reason why 33SR could not be a last known, or even a usual, residence (Relfo Ltd (in liquidation) v Varsani [2009] EWHC 2297 (Ch), para. 34).
    1. CPR rule 6.9(5) applies only if Dr Boettcher had reason to believe that Mr Geyer no longer resided at 33SR. However, Dr Boettcher’s inquiries did not give him reason to believe that Mr Geyer no longer resided at 33SR, especially having regard to the third and fourth reasons below.
    1. Third, a critical step in Dr Boettcher’s conclusion that 33SR was Mr Geyer’s last known residence is the conversation between Ms Chadda and the porter at 33SR. It is fair to say that this was a short telephone conversation, but the contents of the conversation reinforced, rather than contradicted, the conclusion that Mr Geyer continued to reside at 33SR. Ms Chadda’s evidence was of course inconsistent with the evidence of Ms Danon’s evidence of her own conversation with the porter at 33SR, assuming it was the same person (Ms Danon’s conversation of course took place after service). I am not in a position to decide which of these accounts is to be preferred, assuming that there is an inconsistency. In my judgment, Ms Chadda’s evidence affords a plausible basis on which to conclude that Dr Boettcher had no reason to conclude that Mr Geyer was no longer resident at 33SR and that any conflict in the evidence cannot be resolved for the purposes of this application.
    1. Fourth, Dr Boettcher through his solicitors had sent letters of claim to Mr Geyer by email which included 33SR (or “Flat 10, Savile Row, London, W1S 3PZ”) as his identified address. The evidence suggests that Mr Geyer had received these letters of claim (and there is no evidence to suggest that Mr Geyer did not receive these letters of claim) but took no steps to inform Dr Boettcher or his solicitors that he no longer resided at 33SR, even though in one of the emails sent by Dr Boettcher’s solicitors, Mr Geyer was asked to identify his preferred address for service. Dr Boettcher is entitled to rely on Mr Geyer’s failure to correct any impression that Dr Boettcher had that 33SR was Mr Geyer’s last known residence.
    1. Of course, Dr Boettcher became aware soon after the purported service of the Claim Form on Mr Geyer at 33SR on 1st October 2021 that Mr Geyer’s position was that he was no longer resident at 33SR (Ms Lanceley’s second witness statement, paragraph 27). That is of course irrelevant as the question whether 33SR was Mr Geyer’s last known residence is to be determined as at the date of service (1st October 2021).
    1. Therefore, in my judgment, the service of the proceedings on Mr Geyer was valid service in accordance with CPR rule 6.9.

 

 

Tags: , ,