SERVICE OF THE CLAIM FORM: THE CORRECT ADDRESS ON THE ENVELOPE AND THE “LAST KNOWN RESIDENCE” CONSIDERED BY THE HIGH COURT

In Xenfin Fund 1 Trading Ltd v GFG Ltd & Ors [2025] EWHC 172 (Ch) Joanna Wicks KC (sitting as a Deputy High Court Judge) considered two issues relating to service of the claim form. Firstly whether a slightly wrong address on the package sending the claim form meant the claim form was not properly served.  Secondly whether the claimant had properly served the claim form at the defendant’s “usual or last known residence”. The latter involved a detailed consideration of the steps that the claimant’s solicitors had taken.  The claimant was successful on both issues. However the case shows the potential dangers of waiting until the last minute to serve and highlights the dangers of assuming that an historical address is the “last known residence”.

“In my judgment, the package containing the claim form was “properly addressed” for the purpose of section 7 of the Interpretation Act 1978 or any such implication in CPR 7.5(1). A letter or package may be “properly addressed”, even though it contains an error, if the error would not have been likely to affect the place to which Royal Mail would deliver it. In this case, the flat number, the house number and street and the postcode were all correct. Royal Mail will have ignored the reference to a street which was not in that postcode. Indeed, the Claimant’s evidence is that the Post Office generates a delivery sticker using only the flat number and the postcode”

AVOIDING THE PITFALLS IN SERVICE OF THE CLAIM FORM: WEBINAR 4th FEBRUARY 2025

The question of the last address for service is considered in this webinar tomorrow. Every year this blog covers numerous  cases where claimants (and occasionally defendants)  come to grief in relation to service of the claim form. The frustrating issue in relation to service issues is that most (if not all) of the problems are avoidable with a little care and with the appropriate knowledge of the rules and case law. This webinar looks very closely at the rules relating to service of the claim form and particulars of claim with the primary aim of making sure that you do not fall foul of the rules and serve properly and in time.  It looks at many examples of where things have gone wrong and provides clear guidance as to how to avoid problems.  

Booking details are available here. 

THE CASE

The claimant issued proceedings against two defendants.  The first defendant was resident in the UK and served at an address in London.  The address on the package serving the email was incorrect, however the post code was correct.  The first defendant applied for an order that the claim form had not been properly served and the court had no jurisdiction to hear the claim.

THE BACKGROUND IN RELATION TO SERVICE ON THE FIRST DEFENDANT

11. The claim form in these proceedings was issued on 5 May 2023, shortly before the expiry of the limitation periods referred to above. Under CPR 7.5, it was valid for service until 5 September 2023. The claim form was amended on 29 August 2023.

1. 1. Under CPR 6.9(2), the claim form was required to be served on Mr Hofgren at his “usual or last known residence”. “Last known” refers to the serving party’s actual knowledge, or knowledge that he could have acquired exercising reasonable diligence: Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945 at [71]. By CPR 6.9(3), if the Claimant had reason to believe that the address was one at which Mr Hofgren no longer resided, it was obliged to take reasonable steps to ascertain the address of his current residence. By CPR 6.9(6), a claimant may serve the claim form on a defendant’s usual or last known residence where it cannot ascertain the defendant’s current residence and cannot ascertain an alternative place or alternative method by which service may be effected.

1. 1. The Claimant contends that service was effected upon Mr Hofgren, in accordance with CPR 6.9, by sending the amended claim form by first class post on 30 August 2023 to Flat 4, 28 Cleveland Square, London W2 6DD, that being Mr Hofgren’s “last known residence”. Mr Hofgren disputes that as good service, on the basis that (a) the letter sending the Claim Form was not “properly addressed” within the meaning of section 7 of the Interpretation Act 1978, because the address contained a mistake: the package was addressed to “Flat 4, 28 Cleveland Square, Thomas More Street, London W2 6DD”. Thomas More Street is a road in East London, rather than Paddington, which is where 28 Cleveland Square is; and (b) 28 Cleveland Square was not Mr Hofgren’s “last known residence” because the Claimant could, with reasonable diligence, have found a more recent residence, namely 42 Kyrle Road, London SW11 8BA. It is not suggested that there was any alternative method by which Mr Hofgren could have been served, he having chosen (in response to the Claimant’s request) not to instruct his solicitors to accept service on his behalf.

1. 1. Mr Hofgren’s evidence as to where he in fact lived from time to time is set out at paragraphs 7-10 of his witness statement dated 27 September 2023. He had lived with his ex-wife at 28 Cleveland Square until February 2020, following which it had been rented out. The Kyrle Road address was the house of a friend for whom Mr Hofgren had been house-sitting between 15 November 2022 and 27 July 2023. At the time of his witness statement (and when the claim form was served), Mr Hofgren says he had no permanent residence.

1. 1. The Claimant’s evidence as to what steps it took to ascertain Mr Hofgren’s address for service is set out in paragraphs 12-18 of the second witness statement of Thomas Edward Clark dated 1 May 2024 (“Clark 2“).

1. 1. Mr Phillips, for Mr Hofgren, took me to authorities warning claimants of the dangers of waiting until the last moment to serve proceedings: Anderton v Clwyd Council Council (No 2) [2002] EWCA Civ 933, [2002] 1 WLR 3174 at [2], [3]; Barton v Wright Hassall LLP [2020] UKSC 12, [2020] 1 WLR 1119 at [22], [23]; R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, [2022] 1 WLR 2339 at [41], [83]. He also relied on White v Weston [1968] 2 QB 647 at 661-662 for the proposition that a prospective defendant is under no obligation to inform the prospective claimant of any change in his address.

1. 1. Mr Phillips also submitted that it would have been open to the Claimant to have effected service on Mr Hofgren in other ways, including by reliance on section 1140 of the Companies Act 2006. However, I agree with Mr Brown for the Claimant that the existence of alternative methods of service does not take the matter much further. What I have to decide is whether service was properly effected via the method the Claimant chose to use.

WAS THE CLAIM FORM “PROPERLY ADDRESSED” ?

1. 1. I deal first with the issue as to whether the package containing the claim form was “properly addressed”. Mr Phillips contends that, by sections 21 and 23(1) of the Interpretation Act 1978, section 7 of that Act applies to service under the CPR. This provides:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

I am myself doubtful whether section 7 applies to service under the CPR. The CPR have their own regime for service: CPR 7.5(1) sets out the steps which must be completed by midnight on the calendar day four months after the date of issue of the claim form. Where the method of service is first class post, document exchange or other service which provides for delivery on the next business day, the relevant step is “posting, leaving with, delivering to or collection by the relevant service provider”. CPR 6.14 deems service of a claim form served within the United Kingdom in accordance with CPR Part 6 to take place on the second business day after completion of the relevant step in CPR 7.5(1). These provisions may be said to sufficiently cover the field to constitute a “contrary intention” for the purpose of section 7. However, Mr Brown was content to accept that the requirement in section 7 that the letter be “properly addressed, pre-paid and posted” applies to the service of claim forms. Moreover, it seems to me that even absent any application of section 7, there must be some implication, in the reference to “posting” in CPR 7.5(1), that what is posted bears the appropriate address.

1. 1. In my judgment, the package containing the claim form was “properly addressed” for the purpose of section 7 of the Interpretation Act 1978 or any such implication in CPR 7.5(1). A letter or package may be “properly addressed”, even though it contains an error, if the error would not have been likely to affect the place to which Royal Mail would deliver it. In this case, the flat number, the house number and street and the postcode were all correct. Royal Mail will have ignored the reference to a street which was not in that postcode. Indeed, the Claimant’s evidence is that the Post Office generates a delivery sticker using only the flat number and the postcode. That the addition of the reference to Thomas More Street made no difference is evidenced by the fact that Royal Mail twice attempted delivery to the correct address in Cleveland Square: it was unable to deliver the package because it was “not called for” (i.e. not collected following attempted delivery), rather than because there was no such address.

WAS THIS THE DEFENDANT’S LAST KNOWN RESIDENCE

1. 1. I turn then to the question whether Cleveland Square was Mr Hofgren’s “last known residence” or whether, as he contends, the Claimant could with reasonable diligence have discovered that he had lived more recently at the Kyrle Road address. Having considered the evidence on both sides, I am satisfied that the Claimant’s solicitors took all reasonable steps to identify Mr Hofgren’s residence. Their enquiries indicated that Mr Hofgren lived at 28 Cleveland Square with his wife and her son; the Claimant did not know that Mr Hofgren had been divorced until he served his evidence for these applications and there is nothing to suggest that they could have found out about the divorce any earlier. Property records indicated that 28 Cleveland Square was owned by Mr Hofgren’s wife. The Claimant’s solicitors reviewed emails, diary entries, Uber receipts and KYC documents which repeatedly referred to 28 Cleveland Square as Mr Hofgren’s residence. Moreover, proceedings commenced against Mr Hofgren by Vordere in December 2021 gave Cleveland Square as his address on the claim form. The Claimant found that there was an association between Mr Hofgren and his wife with a residence in Wiltshire, which the Claimant reasonably understood to be a second home, but in any event Mr Hofgren does not argue that service should have been effected at the Wiltshire address.

1. 1. Mr Hofgren contends that the Claimant should have realised that the Kyrle Road address was more recent than the Cleveland Square address because a search at Companies House would have revealed it as a correspondence address for RW Capital Limited, of which Mr Hofgren was appointed director in July 2023 and a Google Maps search would have shown that to be a residential property. Mr Brown submits that Kyrle Road was not even a “residence”, since Mr Hofgren’s evidence is that he was only house-sitting for a friend there. I do not accept this latter submission, since Mr Hofgren was living at Kyrle Road in a settled way for a number of months, sufficient to constitute that property his “residence” for the purposes of service. However, I agree with Mr Brown’s submission that a Companies House search is intended to show corporate correspondence addresses, not a residential address for Mr Hofgren. Given that a search would have revealed that Mr Hofgren had eight different appointments, each giving a different correspondence address, there was no reason for the Claimant to conclude that he was living at Kyrle Road rather than Cleveland Square. Since he was occupying only as licensee, a search at HM Land Registry would not have shown any connection between Mr Hofgren and the property.

1. 1. Mr Phillips also submits that the Claimant could have asked Mr Hofgren for his address, as it did Mr Cheek. I do not consider that there is any force in this argument. The Claimant had sent letters before action to Mr Cheek and Mr Hofgren in April 2023 both by post and email. The letter to Mr Hofgren used the Cleveland Square address. Mr Hofgren had responded acknowledging receipt of the email, but did not say that he no longer lived at the Cleveland Square address. In contrast Mr Cheek had said that there had been a delay in him receiving the letter before action because the Claimant had used an old physical address and a defunct email address. Mr Cheek’s solicitors were therefore asked in August 2023 to provide an up-to-date address for him, but the same request was not made of Mr Hofgren. This was because the correspondence with Mr Hofgren gave the Claimant no reason to think that he was not still living at Cleveland Square. In any event, I cannot see how it can be said that enquiries of Mr Hofgren would be likely to have revealed the Kyrle Road address, since by August 2023, Mr Hofgren was no longer living at Kyrle Road and, indeed, his position appears to be that he did not have any residence at which service could be made at that time.

1. I therefore conclude that service of the claim form was properly effected on Mr Hofgren in accordance with the CPR.