The man who wasn't there

District Judge Stephen Gerlis reports on some problems over service of proceedings

In 1899, the American writer Hughes Mearns (1875-1965) wrote a poem, Antigonish:

'As I was going up the stairI met a man who wasn't there!He wasn't there again today!I wish, I wish he'd stay away!'

The question is - how do you serve such a man with proceedings? The answer is, on the face of it, contained in rule 6.5(6) of the Civil Procedure Rules 1998 (CPR): 'Where (a) no solicitor is acting for the party to be served; and (b) the party has not given an address for service, the document must be sent or transmitted to, or left at, [in the case of an individual] the usual or last known residence.'

The problem is those words 'last known residence'.

In Chellaram v Chellaram & Others [2002] EWHC 632 (Ch) the court confirmed that it is a 'fundamental principle of English procedure and jurisdiction, notwithstanding the advent of the CPR, that a defendant might be served with originating process within the jurisdiction only if he was present in the jurisdiction at the time of actual or deemed service'.

In fact, in that case the particular defendant was held to be domiciled and resident outside England and that therefore service at an alleged 'last known residence' within the jurisdiction was bad.

But what if the defendant is almost certainly within the jurisdiction but no one knows where? This was one of the issues recently raised in a string of five cases heard together under the main heading of Cranfield & Anor v Bridgegrove Ltd (2003) LTL, 14 May.

These cases all concerned service of proceedings.

Two of them, Murphy v Staples Limited, concerning service on a company, and the intriguing Smith v Hughes, are particularly relevant.

Smith followed a road traffic accident.

The defendant, Hughes, had disappeared and the Motor Insurers Bureau had, in 1999, informed the claimant's solicitors that the defendant had left the last known address that the claimant's solicitors had for him.

Nevertheless, those solicitors had, in 2001, issued and served proceedings at the defunct address and the question was whether that was good service.

'Look at the rule,' said the Court of Appeal.

Its terms are very clear.

It talks about the 'last known residence'.

It is not qualified in any way.

It doesn't say, for example, 'the last known residence where the defendant is believed to be living' or 'unless the claimant knows that the defendant is not living there'.

It is the last known residence, pure and simple, even if the defendant left there years ago and there have been several successive occupiers.

Although it was not specifically mentioned by the Court of Appeal, occupiers do sometimes leave forwarding addresses or ask for post to be redirected.

So, service may not be a complete waste of time.

However, the Court of Appeal made it clear that, by the same token, the rule also said nothing about the defendant having to receive the proceedings.

Thus service on the last known residence of Mr Hughes was held to be good even though the great likelihood was that it might never come to his attention.

Now, suppose the wandering Mr Hughes finds out some time later that judgment in default has been obtained against him.

Can he run to the court and say 'I did not receive the proceedings, so service is bad and the court must set aside the judgment'? The short answer is, no.

As a result of Smith, service is apparently good.

The court might be tempted by such issues as human rights, the overriding objective and the interests of justice to say, 'Well, it might be good but it is clear that he didn't know about the proceedings so we ought to set them aside'.

Prior to the advent of the CPR, where there was a technical non-service, the defendant could, as of right, ask for a judgment in default of a response to be set aside.

Not any more.

CPR rule 13.2 makes it clear that the compulsory setting aside of judgment in default is limited to those cases where the claimant had no right to apply for judgment in the first place because, for example, the time for filing a response had not yet expired.

In all other cases the defendant has another hurdle to jump - he must prove that he has a real prospect of successfully defending the claim (rule 13.3(1)(a)) or that there is some other good reason why either the judgment should be set aside or he should be allowed to defend the claim (rule 13.3(1)(b)).

The first condition is clear - it mirrors the requirement in rule 24.2(b) for summary judgment - but the second, 'some other reason, is not further defined nor is there any helpful case law to tie down what it means.

One presumes that each case will depend on its own facts and that the triumvirate of human rights, overriding objective and the interests of justice will all be relevant.

Murphy was a different kettle of fish altogether.

It was a personal injury case in which the defendant was a limited company.

It would appear that there had been contact between the respective solicitors prior to the issue of proceedings - in accordance with the pre-action protocol for such matters - because the defendant company solicitors offered to accept service of any proceedings issued.

For reasons best known to themselves, the claimant's solicitors chose instead to serve proceedings at the defendant company's registered office.

'Bad service' said the defendants.

'Once an arrangement for service (in this case on the solicitors) has been agreed, any other service is ineffective'.

Not so, said the Court of Appeal.

Companies are in a unique position because there are two entirely separate provisions for service upon them - the general rules for service under CPR rule 6.2(1) and, as an alternative, under section 725 Companies Act 1985 for a UK company (rule 6.2(2)).

It doesn't matter what has been agreed about service, provided it is properly effected by one of the permitted methods it is good.

Section 725 of the Companies Act provides for service at a UK Company's registered office.

Although service there is good it is worth considering whether it is the best way of going about things.

Many registered offices are not actually at the trading address of the companies in questions.

Firms of accountants and solicitors have been known to have boards in their entrance areas containing long lists of companies which are registered at their address.

There is a real risk that proceedings delivered there may float around for a long while before finding a home on somebody's desk.

This may, in turn, mean an increase in the likelihood of applications to set default judgment aside (as to which see above) taking up the precious time of the courts.

The answer is, if you are serious about litigation, make sure you serve proceedings where it will come to the proper person's notice as soon as possible.

Unless, that is, they are no longer there, when you can serve it on the space left behind.

District Judge Stephen Gerlis sits at Barnet County Court