Avoiding the procedural pitfalls of defective service on individuals: Ivanchev v Velli
This article with our associateoriginally first appeared in Practical Law's dispute resolution blog.
It is a familiar tale: a dispute arises; claimant issues claim; claimant serves claim. But what do you do if the identity and address of an individual defendant is unknown? In the recent judgment of Ivanchev v Velli, the High Court revisited this all too common chink in a claimant’s armour: effecting proper service of both a claim form, and an application notice, where no address is given for the defendant in accordance with the Civil Procedure Rules (CPR).
The judgment reminds us of how to avoid the procedural pitfalls of defective service of a claim form and other documents on individuals.
The golden rules
The issue and service of a claim are arguably the most important procedural steps a claimant can take in proceedings. It is vital that claimants get this right each time, particularly where limitation could be an issue. So what should you do to avoid incurring significant costs in disputing valid service, or worse still, not effecting valid service in time, resulting in a claim being statute-barred?
The golden rules for service of the claim form are relatively straightforward (but commonly overlooked), and are summarised as follows.
1. Follow CPR 7.5 as a starting point
For service of a claim form, you must complete the relevant step required for valid service under CPR 7.5. For next business day first class post or document exchange (DX), this will be “posting, leaving with, delivering to or collection by the relevant service provider”. For other documents, the rules are almost identical. But what does this mean in practice, especially when the party to be served provides no address (see point 4), or more specifically, resides in an apartment block (see point 7)?
2. Effect personal service where possible
If serving on an individual, where possible, serve the claim form personally under CPR 6.5 (note there are exceptions: claims against the Crown or a solicitor). If the defendant’s address is unknown, this will likely not be possible. Always exercise common sense. COVID-19 restrictions may further prohibit your ability to serve in person, and therefore, current local and national government guidelines must be carefully considered.
3. Include an address for service
Where personal service is not possible, CPR 6.6(2) states that the claim form must include an address (including a postcode or equivalent in an EEA state) for the defendant(s) in order to serve the claim form, unless the court orders otherwise. Without leave from the court, you cannot depart from this rule.
4. Exercise caution when no address is given
Where a defendant’s address is not given, CPR 6.9(2) states that service on an individual (if not served personally) must be at their “usual or last known address”. The claimant must have a reasonable belief in this address. In addition, the defendant must have lived at that address at some stage. Tracing agents can provide some assistance, but as Ivanchev demonstrates, they do not always get this right! When they are wrong (and where a defendant has never even resided at the address in question), service at that address will ultimately be defective, regardless of the claimant’s reasonable belief (Marshall Rankine and another v Maggs). When in doubt, exercise caution when it comes to service of the claim form (see the options below).
5. Take reasonable steps to ascertain the defendant’s current address
If the claimant reasonably believes that the defendant no longer resides at that address, they must take reasonable steps to ascertain the defendant’s current address. If a current address is determined, they must serve the claim form at that address in accordance with CPR 6.9(4)(a).
6. Consider alternative methods
If all else fails and the claimant cannot determine a current address having taken reasonable steps, the claimant must consider alternative places or methods for service under CPR 6.9(4)(b), such as the defendant’s place of employment, or by email address. If the claimant goes down this route, and departs from CPR 6.6(2) and 6.9(2), they must make an application for permission to do so from the court. Failure to do so could prove costly at best, and negligent at worst, particularly in claims where limitation is approaching. In such circumstances, claimants should consider issuing the claim and making their application concurrently.
7. Be specific
For service of the claim form and other documents on individuals, you must be clear on precisely where those documents are left, especially for parties who reside in apartments. It is not enough to say that the documents were simply posted to a generic post box. You must retain evidence that demonstrates that the documents were posted to a specific post box for that party (at their usual or last known address).
In a COVID-19 world, it will be even more difficult for claimants to find an alternative address for service, particularly when many businesses are closed. It is sensible to be cautious, and make a prospective application for permission to serve the claim form by an alternative method, or at an alternative address, to avoid future issues.