Service can be defined as "steps required by rules of court to bring documents used in court proceedings to a person's attention". The purpose of the rules on service, set out in the Civil Procedure Rules, is to ensure that, as far as possible, documents and, in particular the claim form, actually come to the attention of the party to be served.
Service may be effected at the individual’s usual or last known address. When it is known that the individual no longer resides or carries out business at the last known or usual address, the claimant must take reasonable steps to ascertain the address of the defendant's current residence or place of business ('current address'). If, after taking reasonable steps, it transpires that the defendant’s address cannot be established, the claimant must consider whether there is an alternative place or method by which service may be effected.
It all seems rather straightforward, right?
Wrong.
The issue of service was the basis of the appeal in the case of Mohammed Sajid v Deeka Nuur (unreported), July 2018 in Central London County Court. In that case, the Claimant, Mr Sajid issued a claim for rent arrears and sent it to an address which was no longer the address for Deeka Nuur, since she had moved; something Mr Sajid was fully aware of.
Mr Sajid subsequently obtained judgment in default and Deeka Nuur instructed Duncan Lewis to assist in setting aside the default judgment. The application to set aside the default judgment was heard in Brentford County Court where the Judge dismissed the application with costs. Mr Sajid contended that he had complied with the rules pertaining to service because he had sent a text to Deeka Nuur’s daughter’s phone in order to request the current address. The judge held that Mr Sajid was not in breach of the rules on services since he had made attempts to ascertain Deeka Nuur’s new residence and having failed to do so, was entitled to serve at the address she had moved from.
Duncan Lewis, on instruction from Deeka Nuur, appealed the decision. The appeal was heard in Central London County Court over a period of two days and judgment was handed down on 30th July 2018.
HHJ Roberts, sitting in Central London County Court, analysed in detail the relevant authorities and held that the lower court judge erred in law by finding that the claim form had been correctly served. He held that Mr Sajid failed to comply with the mandatory requirement to consider alternative service in CPR 6.9(4)(b). In particular, Mr Sajid ought to have sought alternative service on the solicitors who were on the record for Deeka Nuur in a related matter.
It was clear from the first decision that the judge had interpreted the rules on service incorrectly. Thanks to the tenacity of the litigation team, headed by Anthony Okumah at Duncan Lewis, the decision was over turned. The judgment has attracted a lot of attention and has been reported by Practical Law, Lexis Nexis, West Law and featured in the Civil Litigation blog run by Gordon Exall.
Anthony Okumah is a Director and Head of the Duncan Lewis Civil Litigation and Dispute Resolution Department. He specialises in dispute resolution (litigation, arbitration or mediation), professional negligence claims predominantly against solicitors, debt recovery; insolvency; contractual disputes, leasehold disputes and contentious probate cases. Anthony also has an in-depth experience of boundary and neighbourhood dispute cases and additionally he regularly conducts his own advocacy in both the County Court and the High Court which allows him to represent his clients throughout their retainer.
Contact Anthony on 020 3114 1227 or email him on anthonyo@duncanlewis.com.
Duncan Lewis Litigation Solicitors
Duncan Lewis is one of the leading solicitors in England and Wales offering expert litigation and alternative dispute resolution services. Duncan Lewis has acknowledged expertise in advising corporate clients on litigation matters – as well as advising private individuals in cases where litigation might be an option. If you require further assistance on this subject or any other property related litigation matter, please contact our litigation team on 0333 772 0409.