There is a requirement in the Civil Procedure Rules (CPR) that a claimant take "reasonable steps" to ascertain a defendant's address for the purpose of serving the claim form under CPR 6.9(3), when seeking permission to serve by an alternative method under CPR 6.15. The court has commented on what's required.

COMMENTARY

Service of the claim form is a crucial element of all civil legal claims; parties must get this right to validly bring a claim, and it must be done within the period of validity of the claim form. In Aslani v Taberna [2021], the court examined to what extent steps taken to ascertain a defendant's address under CPR 6.9(3) factor into a decision by the court to grant permission to serve the claim form by an alternative method under CPR 6.15.

FACTUAL BACKGROUND

The claimant (C) made a successful application under CPR 6.15 to serve proceedings on the defendant (D) by an alternative method, in this case by email, having received no response to a letter before action sent to D's postal address and having been unable to serve the claim form on D at that address. C had then served the claim by email, which wasn't acknowledged by D. Judgment in default had been entered against D.

D subsequently argued that C hadn't properly served D as C hadn't taken reasonable steps to contact D and that D was contactable by other means. D successfully applied to have the order for alternative method of service set aside. The Master found C could have done more to ascertain D's current address. 

C appealed, arguing that CPR 6.15 doesn't refer explicitly to 6.9 and the Master went beyond considering whether there was a good reason to permit service by an alternative method by analysing whether C's actions to determine D's postal address were reasonable. 

Cotter J allowed C's appeal. The Master hadn't properly considered whether service was successful when the email was sent to D and could not, from the evidence, have reached a decision that D had not simply ignored the email. 

KEY LEGAL POINTS

Cotter J made helpful comments about the relationship between CPR 6.9(3) and 6.15.

Although CPR 6.9 and 6.15 are separate provisions, whether reasonable steps have been taken to ascertain D's current postal address may factor into a Judge's decision as to whether permission under CPR 6.15 should be granted (or set aside). This should be borne in mind by parties wishing to serve by an alternative method; they should consider what can reasonably be done to obtain a current address for the party they wish to serve.

'Good reason' to permit service by an alternative method under CPR 6.15 is potentially a wider test than 'reasonable steps' under CPR 6.9(3). However, a Judge would be likely to consider the extent to which a party had complied with CPR 6.9(3) when making decisions regarding CPR 6.15, Cotter J said.

The decision also confirms that whether 'reasonable steps' have been taken by a claimant to serve the claim form, and whether there is a 'good reason' to grant permission for alternative method of service will both depend on the circumstances of the case and are fact-specific.

Key Contact

Kimberley Yu