Now that it is possible to be served with a summons without being aware of it, Adam Taylor argues for a proactive approach

According to the Concise Oxford Dictionary, 'service' means the formal delivery of a summons or writ to the person to whom it is addressed. The man on the Clapham omnibus might be excused for thinking that, unless he receives notice of a hearing, he has not been served. The well-informed lawyer knows better.


Rule 6.5 of the Civil Procedure Rules 1998 (CPR) provides that a defendant who has not given an address and does not have solicitors willing to accept service can be served at his last known residential address. The proprietor of a business can additionally be served at his last known business address. A company can be served at its principal office or at a place of business connected with the claim.


Plainly, a defendant served in accordance with the rules will not always receive the claim form; he might have moved, or the post might miscarry. Before the CPR, district judges would listen stoically to explanations for an alleged failure of service that would have raised Baron Munchausen's eyebrows, before ruling that the judgment was irregular and must be set aside as of right. Under the CPR, the position is different.


The Court of Appeal, in a line of authority beginning with Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656, [2003] All ER 129, has decided that service in accordance with rule 6.5 will be 'deemed' to have taken place on the second day after the claim form was sent, whether or not the defendant receives it. Thus, service will be effective even if the claimant knows that the defendant has moved, provided the claimant has taken reasonable steps to find out the defendant's new address (see Mersey Docks Property Holdings v Kilgour [2004] EWHC 1638 (TCC), [2004] All ER (D) 303 (Jun)), and he at some time resided at the old address (see Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945) and the claim form has not been returned undelivered before judgment (see Akram v Adam [2004] EWCA Civ 1601, [2002] All ER (D) 68 (Nov), paragraphs 34 and 41). There is one exception to this principle: if the defendant happens to be out of the jurisdiction when service would otherwise have taken place, it will be ineffective (see Fairmays v Palmer [2006] EWHC 96 Ch, [2006] All ER (D) 248 (Jan)).


But what if the claimant puts the wrong address on the claim form? This question arose in Nelson & Anor v Clearsprings (Management) Ltd [2006] EWCA Civ 1252. The claimant sought possession of premises at 26 Brook Road and sums due under a tenancy. Unfortunately, the claimant wrote 28 Brook Road on the claim form. The court posted the claim form. The defendant did not receive it. Claims for possession are listed for hearing as soon as the claim form is issued; Nelson was duly listed and judgment given in the defendant's absence. When the defendant discovered what had happened, its solicitor applied to the district judge to set the judgment aside and asked him to decide as a preliminary issue the question of whether the judgment should be set aside as of right.


Under the old rules, the district judge would have followed White v Weston [1968] 2 QB 647, treated the judgment as irregular and set it aside. But the CPR declares itself to be a 'new procedural code' (CPR 1.1); earlier decisions are of limited relevance. District Judge Giles decided that the application (made incorrectly pursuant to CPR 13.2, which applies to default judgments) should be treated as made pursuant to CPR 39.9(5). That rule allows the court to set aside a judgment given or order made in a party's absence only if the absent party proves that he acted promptly when he found out about the judgment, had a good reason for being absent and has a reasonable prospect for success. District Judge Giles decided the preliminary issue in favour of the claimant, but gave the defendant permission to appeal.


The defendant succeeded before Judge Bush, who ruled that CPR 39.9 did not apply and that White v Weston held good. The defendant was entitled to have the judgment set aside. It was the claimant's turn to appeal.


Giving the judgment of the Court of Appeal, the Master of the Rolls, Sir Anthony Clarke, pointed out that, under the CPR, the distinction between an irregular and a regular judgment no longer obtains. The court may set aside a judgment, but is not bound to do so (paragraphs 43 and 50). CPR 39.3 applies only if the defendant has had notice of the trial (paragraph 39); if he has not, the court's discretion to set aside judgment arises under CPR 3.10(b) and 3.1(2)(m).


Sir Anthony went on to say that the court should exercise its discretion in favour of a defendant who has not been served unless the claimant can show that the defendant would suffer no prejudice if the judgment were allowed to stand. If the judgment includes interest, or an order for costs has been made, the defendant will be prejudiced (paragraph 50). But this raises the question: if there is no real prospect of a successful defence, why should judgment for the claim (as opposed to interest and costs) not stand? The Court of Appeal does not answer, but it follows from its reasoning that judgment for the claim should stand.


Nelson represents a further erosion of defendants' rights. In future, most applications to set aside judgment will be decided on the merits of the case. The well-advised defendant will exhibit to his application a draft defence and, if he is impecunious, provide evidence of his means, in case the judge considers making permission to defend conditional on a payment into court.


For his part, a claimant who believes that the defendant is only playing for time will follow the Court of Appeal's suggestion and issue an application to dispense with service and (subject to CPR 24.3) for summary judgment, returnable at the same time as the application to set judgment aside.


District Judge Adam Taylor sits at Horsham County Court