Adam Taylor reconsiders the rules surrounding the proper service of claim forms


Cases sometimes show the gregarious tendency of London buses. The Court of Appeal considered the issue of service in 2003 in Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656, [2003] 3 All ER 129; in 2004 in Akram v Adam [2004] EWCA Civ 1601, [2005] 1 All ER 741; and last year in Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945, [2006] All ER (D) 177 (Jan) and Nelson & anor v Clearsprings (Management) Ltd [2006] EWCA Civ 1252.



Meanwhile, the High Court heard Mersey Docks Property Holdings v Kilgour [2004] EWHC 1638 in 2004, and Fairmays v Palmer [2006] EWHC 96 (Ch), [2006] All ER (D) 248 (Jan) last year. And, just when you thought there could not be another case on service, Kamali v City & Country Properties Ltd [2006] EWCA Civ 1879 lumbers into view.



The fundamental question raised in all these cases is whether a claim form sent by post, but not received, is duly served. The search for an answer begins with part 6 of the Civil Procedure Rules (CPR). Rules 1 and 2 of that part allow service of any document by first-class post, unless statute, a rule or a practice direction provides, or the court directs, otherwise. Rule 5 requires a document for service within the jurisdiction to be 'sent, transmitted to or left at' the place shown in the table to the rule, unless the party to be served has instructed a solicitor or given an address for service. The place of service shown in the table is, for an individual, his 'usual or last known residence'.



The proprietor of a business can additionally be served at his last known business address. Rule 7 provides that a document served in accordance with the rules is 'deemed' to have been served, if sent first class, on the second day after posting.



The word 'deem' is not much used outside the law. It derives from an Anglo-Saxon word meaning judgment and has the same root as 'doom' - 'Doomsday' being the day of the Last Judgment. 'Deemed' means more than 'presumed'; it means 'adjudged'. The interpretation of CPR 6.5 by the courts is consistent with this etymology. A document which is deemed to be served will be treated as served, whether received or not. Service will even be effective if the claimant knows that the defendant has moved, provided the claimant has taken reasonable steps to find out the defendant's new address (Mersey Docks), the defendant at some time resided at the old address (Collier v Williams) and the claim form has not been returned undelivered before judgment (Akram v Adam at paragraphs 34 and 41).



Postal service has, hitherto, involved one major risk: if the defendant is out of the jurisdiction when service would otherwise have taken place, it will be ineffective.



According to Mr Justice Collins (as this ex-solicitor then was) in Chellaram v Chellaram (No2) [2002] EWHC 632, [2002] 3 All ER 17, 'it has always been and remains a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service'. The issue in Kamali was whether this was a correct statement of the law.



Mr Kamali was a tenant of commercial premises in Greenford, Middlesex. His rent fell into arrears by some £6,600. His landlord issued proceedings in January 2004. The claim form was served by post at Mr Kamali's place of business. Mr Kamali was abroad at the time, returning to the jurisdiction on 11 February. He had no defence. His best hope of having the judgment set aside was to argue that it was a nullity for want of valid service.



Mr Kamali's counsel martialled arguments which Lord Justice Wilson described as ingenious and erudite - the kind of compliments generally reserved for the losing advocate.



All three judges concluded that, under the CPR, it was no longer a precondition of effective service that a defendant be within the jurisdiction. It would be absurd, to take an example borrowed by Lord Justice Neuberger, if service on a resident of Cumbria were rendered invalid because, at the moment of service, he was lunching north of the Scottish border.



Lord Justice May saw 'no force whatever' in counsel's second argument that an interpretation of CPR 6.5 which allowed service while a defendant was abroad would constitute unlawful racial discrimination against Mr Kamali, who was of Asian origin and often travelled abroad. Frequency of foreign travel is not dependent on race; furthermore, the rule affects all those away from their home or place of business, whether within the jurisdiction or abroad. Lord Justice May dismissed in two sentences what he described as counsel's 'fallback position': that Mr Kamali's absence abroad constituted 'some other good reason' under CPR 13.3(1)(b) for setting aside judgment.



Anyone engaged in a dispute who intends to travel should in future add to his packing list a reminder to instruct a solicitor to accept service. Failure to take this precaution may result in a default judgment, swiftly followed by enforcement. Of course, a defendant who has a good defence and acts promptly will be able to set aside a default judgment on the merits, but he may have to pay the claimant's costs.



For a defendant without a good defence who wishes to set aside a default judgment, and thus avoid the consequences of registration, two arguments remain: first, that the claim form was served at an address where he no longer resided or carried on business and the claimant did not taken reasonable steps to find out his new address; second, that the claim form was returned undelivered either before or, perhaps, (since the dictum in Akram v Adams is not part of its ratio) after judgment. These arguments may yet provide the Court of Appeal with another opportunity to consider service.



District Judge Taylor sits at Horsham County Court