SERVICE OF THE CLAIM FORM: NO IMPLIED DUTY ON A CLAIMANT TO TAKE STEPS TO ENSURE THAT THE DEFENDANT IS STILL AT THE LAST KNOWN ADDRESS

I am grateful to barrister Anthony Reddiford for sending me a copy of the judgment of HHJ Truman in  Aston -v- Tew & Alwyn Insurance Company Ltd [2025] EWCC 20 , a copy of which is available here. Aston -v- Tew  It is a judgment on whether there is an implied duty on a claimant to check, prior to service, that a defendant still lives at the last known address the claimant has for them.  The judge found that there is no such duty.

“It seems to me that the starting point must be the terms of Rule 6.9. Under the Rule, a Claimant must serve a Defendant at his usual or last known residence. There is no mention within the Rule of any requirement to exercise reasonable diligence in checking whether an address remains the usual or last known address. It is purely when a Claimant “has reason to believe” that a Defendant no longer resides at the intended address for service that specific requirements come into play as to what the Claimant must do. It seems to me that it would be rather strange to have some unmentioned, but implied, obligation to take steps to check whether someone was still at an address, when, within the same Rule, an amendment had been made giving specific, express steps to follow to try to ascertain a new address when, but only when, a Claimant had “reason to believe” that the Defendant had left the old address. It would have been very straightforward when making that amendment to add in that before serving at the usual or last known address, a Claimant was required to exercise reasonable diligence to first check whether the address was still current, but that was not done.”

KEY PRACTICE POINT

This is a (rare) case where a claimant was successful on a claim form issue. It would still be prudent to sure of  the correct address prior to service. Further the claimant here followed the (traditional) pattern of issuing at the end of the limitation period and then waiting right to the end of the four month period prior to service.  This, almost always, gives rise to problem occurring. Serve properly and serve promptly is the only safe motto for a claimant.

THE CASE

The claimant was injured in a motorcycle accident in May 2018.  She was under the age of 18 when injured and the limitation period did not expire until April 2022. Proceedings were issued naming the defendant and his insurer.  Proceedings were served a week before the validity of the claim form expired.  The first defendant (the driver) was served at the address that the claimant was given around the time of the accident.

THE FIRST DEFENDANT HAD MOVED

The claim form sent to the first defendant was returned. The envelope stated that the first defendant no longer lived at that address.

THE CLAIMANT’S APPLICATION

The claimant initially applied for an extension of time to serve the claim form.   That application was then withdrawn on the basis that service had taken place on the last known address and was thus good service.

THE DECISION OF THE DISTRICT JUDGE

The District Judge found that the claim form had not been properly served and struck out the action.

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE CIRCUIT JUDGE

On appeal HHJ Truman identified the relevant rule.

“4. Under CPR 6.9 (2), where a Defendant (who is an individual rather than a business) has not nominated solicitors to accept service or has not given an address for service (as was the case here in respect of the First Defendant), and the Claimant does not intend to serve the Defendant personally, the Claim Form must be served at the Defendant’s “usual or last known residence”. CPR 6.9 continues:

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) 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”).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) 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.

(5) If, under paragraph (4) (b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph
(4) (b).

THE CENTRAL ISSUE ON APPEAL

There is no express duty in the rules that requires a claimant to take reasonable, or any, steps to determine whether a defendant still lives at an address.  The question on appeal was whether there was an “implicit duty”.

“6. There are no cases directly on point. There are cases from a Deputy High Court Judge and from the Court of Appeal where there were some obiter discussions. Counsel for the Claimant carefully took me through the previous version of the CPR and the case law regarding service. In his Skeleton Argument, he had said:

The central issue in this case is whether there is a duty implied into CPR Part 6.9 (2) to the effect that a Claimant wishing to serve a Defendant by post at his usual residence must first exercise reasonable diligence to discover whether the Defendant (still) resides at that address.

It is not in issue that:
(a) there is no express duty in the rules to that effect;
(b) since 2008 there has been an express provision in the rules that if the Claimant has reason to believe that the defendant no longer resides at the address, the claimant must take reasonable steps to ascertain the Defendant’s current address (Part 6.9 (3), as amended).

As to whether there is an implied duty, in summary the Claimant’s arguments that there is not are as follows:
(a) such an implied duty would wholly or substantially overlap with the express provision in 6.9 (3), which is a strong argument against implication;
(b) such an implied duty involves a substantial re-writing of the rules, which the Court of Appeal expressly deprecated in Marshall v Maggs [2006] EWCA Civ 20;
(c) if the rules committee had wanted to impose a duty to use reasonable diligence, it could easily have amended the rules to do so when they were amended to incorporate 6.9 (3) in 2008. It did not do so;
(d) it would render the service at a last known residence (expressly permitted by 6.9 (2)) substantially otiose because if reasonable diligence is required, it will be possible to ascertain if the defendant still lives at the address;
(e) it over complicates the steps necessary for a claimant to effect service.

THE JUDGE’S DECISION

33. It seems to me that the starting point must be the terms of Rule 6.9. Under the Rule, a Claimant must serve a Defendant at his usual or last known residence. There is no mention within the Rule of any requirement to exercise reasonable diligence in checking whether an address remains the usual or last known address. It is purely when a Claimant “has reason to believe” that a Defendant no longer resides at the intended address for service that specific requirements come into play as to what the Claimant must do. It seems to me that it would be rather strange to have some unmentioned, but implied, obligation to take steps to check whether someone was still at an address, when, within the same Rule, an amendment had been made giving specific, express steps to follow to try to ascertain a new address when, but only when, a Claimant had “reason to believe” that the Defendant had left the old address. It would have been very straightforward when making that amendment to add in that before serving at the usual or last known address, a Claimant was required to exercise reasonable diligence to first check whether the address was still current, but that was not done.

34. The interpretation of the Rule so as to include the implied obligation does, in my view, require some rewriting of the Rule when the Rule does not require any such rewriting to make it workable. The Court of Appeal in Marshall v Maggs did frown on rewriting the Rules. I accept Counsel for the Claimant’s submission that, if there were that implied obligation, the express permission within Rule 6.9 (2) to serve at the last known address would be rendered substantially otiose because the reasonable diligence steps would be required regardless and thus a Claimant would have to make enquiries and would know whether the Defendant was still at the address, and, if they were not, the requirements of (3) would activate. The implication of reasonable diligence might well lead to arguments about how recent any such checks might need to be in order to count as “reasonable diligence”, or whether they were sufficiently extensive. That would make the service procedure more costly and less certain, when the Court of Appeal in Smith v Hughes considered that the Rule requiring service at the usual or last known residence was intended to provide a clear and straightforward mechanism for service where the two conditions precedent (a Defendant having no solicitors to accept service and not having given an address for service) were satisfied.

35. It is notable that in Smith v Hughes, service at the last known address was held to be valid by the Court of Appeal, even though the Claimant had known the Defendant had not been at that address for around 2 years and had not apparently made any enquiries as to any more recent address. In the index case, the Claimant did not know the Defendant was not there. If the Court of Appeal thought that service was good where a Claimant knew the Defendant was not there but made no enquiries, it is not immediately clear why it would be thought service was not good where the Claimant did not know the Defendant was not there and made no enquiries. The level of criticism that might be made of the Claimant’s actions (or inactions) appears higher in Smith v Hughes than in the index case, yet service was still good in Smith v Hughes. The amendment to the Rule showed that it was considered that more steps should be required when a Claimant did know a Defendant was not there. Although the Court had flagged up some obiter points about reasonable diligence, the Rules Committee did not see fit to alter the wording of the Rule about usual or last known residence, and did not require a Claimant to exercise reasonable diligence before serving at the usual or last known residence, or to take any steps regarding the address, unless the Claimant had “reason to believe” the Defendant was not at the address.

THE RESULT – GOOD SERVICE HAD TAKEN PLACE

HHJ Truman found that there was no duty on a claimant to make enquiries and that valid service had taken place on the first defendant.

36. Like the District Judge, I have carefully considered the obiter views of the Court of Appeal in Smith v Hughes and Marshall v Maggs, together with the obiter comments in Boettcher, but I have come to a different conclusion from the District Judge on what is required for service to be effective. It seems to me that the change in Rule 6.9 after the two Court of Appeal cases is a matter of considerable importance (both as to what the amendment did and did not do) and its impact on the applicability of the obiter comments in Smith v Hughes and Marshall v Maggs cannot then be overlooked. In Boettcher, the comments were again obiter and there was no discussion of the effect of the Rule change, or the potential distinction between a knowing and an unknowing Claimant. I prefer Counsel for the Claimant’s submissions to those of Counsel for the Second Defendant and I place reliance on the commentary in the White Book. It therefore follows that I consider that the District Judge, despite her careful thought, was wrong in law. I accept that this view of the law could mean that, as the Second Defendant worried, a Claimant would have no incentive to check whether someone was still at an address, and they might prefer to close their eyes and ears and say later, if challenged, that they had no reason to believe that the Defendant was no longer there. However, it seems to me, on the wording of the Rule, that if a Claimant can properly say they had no reason to believe the Defendant was no longer there, then the Claimant is perfectly entitled to rely on that stance, as that is what the Rule permits. If something more is indeed required for good service, then it seems to me that the Rule would need further amendment. In summary, I grant the appeal and hold that the service on the First Defendant at the Robin Close address was good service.