Service of proceedings and abuse of process in civil proceedings (Sajid v Nuur)

24 Oct 2018

Two practical areas of interest to civil practitioners were examined in this case— the rules on service of proceedings in Civil Procedure Rule (CPR) Part 6 and whether it is an abuse of process when a party submits a duplicate second claim to an earlier counterclaim. Charles Bagot KC acted for the successful appellant.

What are the practical implications of this case?

This appeal judgment provides a useful analysis and summary of the law in relation to two topical issues for civil practitioners across the range of practice areas:

  • the rules on service of proceedings in CPR Part 6, particularly when it is permissible to serve a party at the ‘last known address’ and providing guidance on what steps must be taken to consider and apply for service by an alternative method or at an alternative place first
  • abuse of process—where a party has had a counterclaim, seeking the same relief in earlier proceedings struck out for a failure to pay the appropriate court fee, is it an abuse of process to issue a duplicate second claim?

Practitioners will want to note that the court emphasised the stringent nature of the duty on a party to consider alternative ways of serving proceedings, more likely to reach the defendant, before resorting to service at a last known address. This was especially so here, where the party serving knew that the defendant had left that address two years before (and would not receive the proceedings) because he had evicted her from that property.

Practitioners will also wish to bear in mind the court’s guidance that, in its view, where an action is struck out for a single procedural default, a failure to apply for relief from sanctions does not bar the commencement of a second action or make it an abuse.

What was the background?

The respondent landlord let his property to the appellant tenant in 2010. In May 2014, a bedroom ceiling at the property collapsed. The appellant brought a disrepair claim against the respondent. The respondent filed a defence and counterclaim alleging arrears of rent, but did not pay the correct court fee for the counterclaim, despite two reminders from the court. The court subsequently made an order striking out the counterclaim for failure to pay the fee
or establish entitlement to fee exemption. The respondent’s defence was also struck out for failing to file a directions questionnaire.

Meanwhile, the respondent had issued a separate claim for possession which was granted in April 2015 and the appellant left the properly in July 2015. In July 2016, a judgment was entered on the appellant’s disrepair claim for £8,000 plus costs. In May 2017, a default costs certificate was ordered in the additional sum of £23,000, against the respondent and the appellant sought to enforce those amounts. Meanwhile, the respondent had issued a claim form in May 2017, seeking rent arrears (as he had in the original counterclaim) and served those proceedings at the property from which the appellant had been evicted, two years before. The respondent subsequently obtained default judgment for £41,000 in the arrears claim.

The appellant applied to set the judgment aside, but at first instance, a Deputy District Judge (DDJ) refused the application. The appellant appealed, and the matter came before HHJ Roberts on appeal.

What did the court decide?

HHJ Roberts allowed the appellant tenant’s appeal against the DDJ’s decision and set aside judgment in default against her, allowing her to defend the respondent landlord’s claim for arrears of rent. The court also ordered the respondent landlord to pay £10,000 in costs of the appeal to the appellant tenant. The court decided not to strike out the respondent landlord’s claim for abuse of process.

The appeal was allowed on the first two grounds, but not on the third—invalid service. The court accepted the appellant’s argument that the respondent was not entitled to serve the proceedings at the ‘last known address’, from which he was well aware that the appellant had been evicted two years before. This is because he had failed to discharge the duty in CPR 6.9, to consider applying for service at an alternative place or by an alternative method under CPR 6.15.

While the respondent had been in touch with the appellant’s solicitors to request an address for service, this was nine months before proceedings were actually issued and, although the parties were in contact about the enforcement of the disrepair judgment, in May 2017, the respondent made no mention of the claim for rent arrears until default judgment had been entered. The steps taken by the respondent to consider service by an alternative means were
inadequate, he should have applied to the court and service at the last known address was not valid. In the circumstances, HHJ Roberts held that the appeal should be allowed, and default judgment set aside, ‘as of right’, under CPR 13.2.

This legal analysis was first published on LexisNexis. Charles Bagot QC was interviewed by Diana Bently.


Charles Bagot KC

Call: 1997 | Silk: 2018


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