District Judge Neil Hickman discusses best practice for serving notice, even where the address is unknown


Under rule 6.5 of the Civil Procedure Rules 1998 (CPR), an individual may be served with a claim form at his usual or last known residence, and the proprietor of a business may be served at his last known place of business. These words are not as simple as they look.



Pre-CPR, it was necessary to show that proceedings had actually come to the defendant's notice. Delivery to his last known address merely raised a rebuttable presumption that he would receive them (Forward v West Sussex County Council [1995] 4 All E R 207, CA). If he had moved from that address, he was entitled to have any default judgment set aside as of right (White v Weston [1968] 2 QB 647).



But in a decision that dramatically emphasised the extent to which the CPR are 'a new procedural code', the Court of Appeal in Smith v Hughes, Cranfield v Bridgegrove [2003] 3 All ER 129, decided that rule 6.5 is plain and unqualified. Even if the claimant knows, or believes, that the defendant is no longer living at his last known residence, valid service could still be effected by sending the claim form to that address.



Address unknown: claimant must exercise reasonable diligence
One question that remained after Smith was whether the claimant had to show that he had tried to find out what was the defendant's current address. Lord Justice Dyson suggested, without deciding, that the rule was 'directed at the knowledge which, exercising reasonable diligence, the claimant could acquire'. The point arose before Judge Toulmin QC sitting in Technology & Construction Court in Mersey Docks v Kilgour [2004] All ER (D) 303 (Jun). The claimant sought to serve an architect at his last known place of business, but he had left those premises. The judge held that searches could, and should, have been made through the Royal Institute of British Architects directories and the yellow pages. The purported service was bad.



While a claimant will undoubtedly find it much easier to show valid service under the CPR than formerly, careful consideration must always be given to whether there are any reasonable enquiries that should be made to check the defendant's actual whereabouts.



As CPR rule 13.5 - claimant to apply for judgment to be set aside if he has good reason to believe that the particulars of claim did not reach the defendant before he entered judgment - has been revoked, the protection offered to the defendant by that rule, to which Lord Justice Dyson referred in Smith, is no longer there, and the court will want to avoid injustice to the defendant.



Many of these cases involve belated attempts to serve proceedings arising out of road accidents. Although the option of proceeding directly against the relevant insurer (see [2003] Gazette, 30 January, 34) will often avoid difficulties, the oft-repeated advice to issue in good time and serve promptly remains sensible.



Note also that sending the proceedings to an address where the defendant has never lived or carried on business, even though the address is connected with him, will not suffice. In this respect, Willowgreen Ltd v Smithers [1994] 1 WLR 832 remains good law.



District Judge Neil Hickman sits at Milton Keynes County Court