Civil procedure


Addresses for service - claim forms - deemed service - irregular judgments - attempted service at wrong address - application to set aside judgment by stranger to proceedings - unfettered discretion - inexcusable delay - prejudice



(1) David Nelson (2) Shirene Veronica Hanley v Clearsprings (Management) Ltd: CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Brooke, Waller): 22 September 2006



The appellant (N) appealed against the setting aside of a judgment on the basis that the respondent (C) had not been served with the claim form and had no knowledge of the proceedings.



N had issued proceedings against C in the county court, seeking possession of furnished residential property and claiming arrears of rent and mesne profits. The claim form had been approved by the court for postal service and was deemed to have been served two days later.



By mistake, the address on the form was wrong. C did not respond to the form. N obtained a judgment and C applied to set it aside. It was common ground that judgment had been given not in default under part 12 of the Civil Procedure Rules (CPR), but after a hearing under part 55.



The district judge held that, to have the judgment set aside, a defendant in the position of C had to satisfy the provisions of rule 39.3(5) of the CPR. On appeal, the county court judge held that the judgment should be set aside if C had not been served with the form and had no knowledge of the proceedings, and that rule 39.3(5) did not confer jurisdiction on the court in those circumstances.



The district judge then held that C had not been served with and did not have knowledge of the form before judgment was given. N submitted that the court only had jurisdiction to set aside the judgment under rule 39.3(5).



Held, before the CPR, where the defendant had not been duly served with process and judgment was given against him without his having any knowledge of the proceedings, he was entitled to have it set aside as of right (White v Weston 1968 2 QB 647 considered). There was no case in which rule 39.3(5) had been held to apply where the defendant had not been served with proceedings in accordance with the CPR and was ignorant of them.



To conclude that rule 39.3(5) applied in such circumstances involved disregarding the complex provisions for service of process under the CPR and holding that the burden was on the defendant to satisfy the criteria of that rule, notwithstanding the fact that the defendant had not been served or deemed to have been served with the proceedings. The draftsman of the CPR could not have intended that result.



Rule 39.3 contemplated a trial in the absence of a party who had been served under the rules or in respect of whom service had been dispensed with, and did not apply to judgments irregularly obtained, in the sense of being obtained without service of the form in accordance with the rules (Akram v Adam 2004 EWCA Civ 1601, 2005 1 All ER 741 distinguished). The judge was correct to hold that rule 39.3(5) did not apply.



It did not follow that, under the CPR, the defendant was entitled to have the judgment set aside as of right or that the court's discretion could only be exercised one way. The attempted service at the wrong address was an error of procedure within rule 3.10 of the CPR that could be remedied, if necessary, under rule 3.10 or rule 3.1(2)(m). The wide and unfettered discretion given by those two rules did not have to be exercised only to set such a judgment aside. Ordinarily, the court could only refuse to set aside where there was no prejudice to the defendant. Inexcusable delay would justify the court in not setting aside.

Appeal dismissed.



Geraint Jones QC for the appellant; Robert Smith (instructed by Restons) for the respondent.