SERVICE OF THE CLAIM FORM: THE MEANING OF “LAST KNOWN RESIDENCE” AND “REASONABLE STEPS” TO ASCERTAIN A CURRENT RESIDENCE

The question of service of the claim form and  “last known residence”  has  featured already  on this blog this year.  There is another case on the issue in the judgment of Mr Justice Bryan in  Agrofirma Oniks LLC & Anor v ABH Ukraine Ltd & Ors [2025] EWHC 300 (Comm).  The judge found that service had taken place at the “last known residence”. Further the claimant’s solicitors had taken reasonable steps to ascertain whether there was an alternative address for service.

“I am satisfied that the Claimants did not know about Mr Fridman’s current address or place of residence, despite having taken what amounted to very much more than reasonable steps in that regard, not least in the context of the fact that there was no address of Mr Fridman in Russia or Israel available from publicly available sources. Accordingly, I am also satisfied that, to the extent that, contrary to my previous finding, Athlone House was no longer Mr Fridman’s “usual residence”, it was his “last known residence” at the time of service and reasonable steps had been taken to ascertain his address.”

THE CASE

The claimant brought an action against four defendants. There were several issues in relation to service of the claim form. One of those issues was whether service on the third defendant at an address in London was valid service on him.  The issues were:

• Whether service was at the “usual at last known residence”.
• Whether the claimant had taken reasonable steps to ascertain his residence at the time of service.

The third defendant was outside the UK at the time of service and as a “sanctioned” individual not allowed to return.

THE QUESTION OF USUAL RESIDENCE: THE JUDGE’S CONSIDERATION OF THE RULES

1. 1. The Claimants must satisfy the Court that purported service at a valid place was in fact effected in accordance with at least one of the steps permitted under CPR 7.5(1) within the period of validity of the Claim Form (i.e., here, by 9 June 2024).

‘Usual Residence’

1. 1. The Claimants must establish the property where service was effected was a valid place at which to effect service under CPR 6.9. The relevant rules under the CPR provide:

(1) A Claim Form served on a defendant who is an individual must be served at his/her “usual or last known residence” (CPR 6.9(2));

(2) “Where a claimant has reason to believe that the address of the defendant referred to in [CPR rule 6.9(2)] is an address at which the defendant no longer resides … the claimant must take reasonable steps to ascertain the address of the defendant’s current residence …” (CPR 6.9(3))

(3) “Where, having taken the reasonable steps required by paragraph (3), the claimant … (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is (i) an alternative place where; or (ii) an alternative method by which, service may be effected.” (CPR 6.9(4))

1. 1. The CPR provides no guidance as to the meaning of “usual or last known residence” owing to the fact-specific nature of the enquiry (see the White Book at notes paragraph 6.9.3.1). However, certain authorities shed light on the issue of “usual residence”.

1. 1. The meaning of “usual residence” was considered by the Court of Appeal in Relfo Ltd (In Liquidation) v Varsani [2010] EWCA Civ 560. In Maloobhoy v Kanani [2012] EWHC 1670 (Comm), Stephen Males QC (sitting as a Deputy High Court Judge) derived at [51] to [56] the following propositions from Relfo as regards the meaning of “usual” and “residence”:

(1) It is for the claimant to satisfy the Court that there is a good arguable case that the particular property is the defendant’s “usual residence”, and this means that the claimant must establish it has much the better argument on the available material than the defendant (see at [52]);

(2) A person can have more than one “usual residence” at any given time (see at [53]);

(3) In determining whether a place constitutes a defendant’s residence what matters is the “quality of the defendant’s use and occupation of the property as a home, which is a question of fact and degree” (see at [54]);

(4) In the event the place is the defendant’s residence, it must also qualify as his usual residence; and a critical consideration for this purpose is the defendant’s settled pattern of life, and this means, in particular, whether the defendant’s use of the property has a degree of continuity and permanence (see at [55]);

(5) In considering the question of residence and usual residence, it is not relevant to compare the durations of periods of occupation (see at [56]).

1. 1. In determining whether a residence is “usual residence” for the purposes of CPR 6.9, in Varsani v Relfo Ltd (In Liquidation) [2010] EWCA Civ 560 Etherton LJ stated that the “critical test is the defendant’s pattern of life (at [29]); see also Dicey, Morris & Collins on the Conflict of Laws, 16th Ed., para 8-011). To similar effect, Lord Warrington in Levene v Commissioners of Inland Revenue [1928] AC 217 held that:

“A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man’s life is usually ordered”.

THE MEANING OF “LAST KNOWN RESIDENCE”

Meaning of “last known residence”

1. 1. In Dr Marcus Boettcher v XIO (UK) LLP (In Liquidation) & Ors [2023] EWHC 801 (Comm), Peter MacDonald Eggers KC (sitting as a Deputy Judge of the High Court) summarised the concept of a defendant’s “last known” residence at [49]:

 

“(1) The claimant must establish that there is a good arguable case that the address at which service was effected was the defendant’s last known residence. This means that, on the evidence available, the claimant has the better of the argument on this issue than the defendant,

“(2) The defendant’s last known residence need not be the defendant’s usual residence,

“(3) The defendant may have more than one last known residence,

“(4) The defendant’s last known residence may be a residence at which the defendant is residing or no longer resides (having once resided there) at the time of the purported service of process. It cannot be an address at which the defendant never resided,

“(5) Knowledge of the defendant’s residence in this context refers to the claimant’s actual knowledge or constructive knowledge, i.e. knowledge which the claimant could have acquired exercising reasonable diligence. An honest or even reasonable belief is not sufficient if the defendant never resided at the address,

“(6) The claimant’s state of knowledge is to be assessed as at the date on which the proceedings were served at the address in question.“

1. 1. As to the nature of the test to discern a person’s last known address, O’Hare & Browne, Civil Litigation 21^st Edition at paragraph 8-011 provide that,

 

“Rule 6.9 adopts a test which is not solely subjective (what the claimant actually knew) nor solely objective (knowledge available to the general public regardless of what the claimant actually knew) but something in between: the actual knowledge of the claimant or their agents but also imputing to them knowledge they could or should have acquired by taking reasonable steps to ascertain or check the address.”

THE ARGUMENTS AS TO HOW THESE PRINCIPLES TO THE FACTS OF THIS CASE

1. 1. Turning to the question of “last known residence”, the Claimants submitted that even if the Court were to find that Mr Fridman no longer maintains Athlone House as one of his usual residences, service on Mr Fridman at Athlone House would still be valid by reason of Athlone House being Mr Fridman’s “last known address” for the purposes of CPR 6.9. The Claimants provided the following reasons in support its submissions:

 

(1) There appears to be no dispute that Athlone House was Mr Fridman’s last known residence as at the date of service. Gherson 1 disclosed no later known residence or contains any evidence rebutting the proposition (or reasonable assumption) that Athlone House was Mr Fridman’s last known address.

(2) Even now there is no evidence before the court of any open source information as to Mr Fridman’s residence anywhere other than Athlone House.

(3) Long after service at Athlone House, on 1 November 2024, Mr Fridman’s solicitors revealed to the Claimants’ solicitors for the first time an address of an apartment in Israel for Mr Fridman. But that was not open-source information, nor was it information available to or reasonably discoverable by the Claimants’ solicitors (or known to them) at the time of service in March or June 2024. The Claimants’ solicitors had no means of finding out from Mr Fridman his current address because Mr Fridman had failed to respond in any way to the 16 August 2023 Letter Before Action delivered to Athlone House before he left the UK. Such information as was available to the Claimants’ solicitors, whilst indicating clear continuing ties to Athlone House, was unclear as to whether Mr Fridman was in fact in Russia or Israel, let alone what his residence might be in either country. In this regard, and as to whether or not they could have asked Mr Gherson and the firm for which he acts, it is pointed out by Mr McLaren KC that the letter from the solicitors acting for Mr Fridman on the Default Judgment Application made clear that they were not instructed in relation to the proceedings generally and had no authority to accept proceedings within the jurisdiction. Mr McLaren submits (with some force) that, in those circumstances, even if they had asked Mr Gherson’s firm what Mr Fridman’s address was, such address would not be forthcoming in circumstances where the approach in that letter was not a cooperative one. In that regard, Mr Craig KC himself candidly made the submission during the course of his oral submissions that a defendant is under no obligation to identify what his address was. It was submitted therefore that it is inherently unlikely that solicitors would volunteer such information, not least in circumstances where Mr Fridman himself had not even responded to the Letter Before Action and there was no incentive for him to identify where he was residing, still less provide an address for service.

(4) It is said that Berg 1 and Berg 4 provided compelling reasons as to why the plaintiffs reasonably and justifiably believed Athlone House to be Mr Fridman’s last known residence as at the dates of service.

1. 1. In contrast, Mr Fridman submitted the court should decline jurisdiction over the claim. He refers firstly to SSL International v TTK LIG Limited and the principles identified by Stanley Burnton LJ in that case in relation to the common law and the CPR. In relation to both such matters, in essence, he submits that, applying the principles in Shulman at [28], Mr Fridman ceased to be resident in the UK on 27 September 2023. After his departure from the UK, and as a result of the temporary Travel Ban, he ceased to be within the jurisdiction and there was a distinct break in the pattern of his life. His residence in the UK, it is said, ceased. In such circumstances, it was submitted that the Claimants cannot establish that Mr Fridman was present in the jurisdiction at the time of service, or that Athlone House was either his “usual residence” or his “last known residence”.

 

1. In particular, in relation to “usual residence”, Mr Fridman submitted that whatever might have been the position prior to 27 September 2023, Athlone House was no longer his home from this date: he ceased entirely to use and occupy it as such. It was not, therefore, his residence (let alone “usual residence”) when the Claimants purported to serve the Claim Form. Further, the Claimants cannot establish a good arguable case that Athlone House is (or was at the time when the Claim Form was purportedly served) Mr Fridman’s “usual residence”.

WAS THIS THE “USUAL RESIDENCE” AT THE TIME OF SERVICE

Was Athlone House Mr Fridman’s “usual residence” at the time of service?

1. 1. Turning then to the issue which was at the very heart of today’s application and in relation to which the vast majority of the time was spent, namely whether Athlone House was Mr Fridman’s “usual residence” at the time of service. Mr Fridman is a sanctioned individual which makes it impossible (at this moment in time) to return to the UK (following his medical treatment). Whilst the Claimants realistically accepted that that this represents a distinct break in Mr Fridman’s life in the UK, on the authorities (and as already addressed) a distinct break is not determinative of the “usual residence” issue. The inquiry required in order to determine the issue at the heart of this application is a multi-factorial and fact-dependent evaluation in which all relevant circumstances are considered in order to see what light they throw on the quality of the individual’s absence (if such it be) from the UK (see Shulman v Kolomoisky supra at [28]).

1. 1. I do not consider that Shulman v Kolomoisky assists Mr Fridman on the facts of the present case. In Shulman, the court found that, on the material before it, there was a good arguable case that the second defendant had effected a distinct break in his life in the UK. By the end of the year, he “had succeeded in substantially loosening (if not cutting) his social and family ties with this jurisdiction and had moved his residence to Geneva” (at [78]).

1. 1. While Mr Fridman has not been in a position to use Athlone House since leaving the UK on medical grounds in September 2023, it remains the family residence, and I consider that there is (very much than) a good arguable case his residence has not ceased (albeit that is all that is required). There are a number of (cumulative) reasons why this is so, applying the multifactorial and fact-dependent evaluation that must be undertaken:

(1) First, it is not disputed that Mr Fridman was, and remains, the owner of Athlone House.

(2) Second, and linked to the above, Mr Fridman has asserted that Athlone House is his family residence, and it his intention to return to the UK (his statement of such intent being expressly recorded in the Sanctions Judgment) and Mr Fridman has not disputed that that is the case (still less asserted the contrary).

(3) Third, it is clear that Mr Fridman sees his absence in the UK as temporary and not permanent, as I have already foreshadowed and addressed. In this regard, Saini J recorded in the Sanctions Judgment at [1] that Mr Fridman had “informed the Court through his Solicitors, that he intends to return to this country”. I have already referred to the even more recent decision of the Grand Chamber, in the Grand Chamber Judgment, in the context of Mr Fridman’s latest challenge of his designation which states that, as recently as 11 September 2024, Mr Fridman was (per Mr Fridman’s own characterisation) “residing in London (United Kingdom)”.

(4) Fourth, against the background of the ongoing challenge to his designation, Mr Fridman’s intention to return to the UK (and thus Athlone House), if and when his designation has been lifted, is, I consider, clear evidence that Mr Fridman at the time of service (and indeed at all times thereafter) continued (and continues) to consider, and treat, Athlone House as his usual residence within the jurisdiction, and that his intention is to continue his life at Athlone House as soon as he is able to do so it remaining his usual residence. At the time of his departure it could not, of course, be known that the events in Ukraine, which led to the designation, would continue to apply, or for a significant period of time, or indeed that his designation would continue for a significant period of time. Certainly his conduct shows an active intention throughout, and from the moment of designation, to have such designation lifted, and to return to what has, throughout, been his usual residence.

(5) Fifth, Athlone House remains actively managed, and managed for Mr Fridman and his family. As the Sanctions Judgment reveals, the thrust of Mr Fridman’s application was that Athlone House was a “family residence” being actively maintained by AHL for Mr Fridman and for the continuing use by him and is family. This included Mr Fridman making an application and seeking permission to release funds and make payments as part of the maintenance of the house.

(6) Sixth, Mr Fridman has chosen to receive correspondence at Athlone House, which he beneficially owns, and which is the family home, and he has consciously chosen that such correspondence should await his return. In this regard paragraph 10 of Gherson 1 makes clear that: “Post that is addressed to Mr Fridman is stored and not forwarded to him” (my emphasis). I consider that this is a point of some considerable significance that sheds further light as to what was (and is) Mr Fridman’s usual residence. Mr Fridman clearly regards it as his usual residence to which he will return, and so temporary is the absence (in his eyes) that the post should await his return, just as it would whenever he was away from home for whatever reason. It is an obvious point, but if Mr Fridman considered his absence to be anything other than temporary, then he would have arranged for such correspondence to be forwarded on.

1. 1. Accordingly, and on the evidence before me, I am satisfied that the Claimants have at least a good arguable case, which is all that is required, that Mr Fridman’s “usual residence” has not ceased to be at Athlone House in the period between September 2023 and March 2024 and/or June 2024.

WAS THIS THE “LAST KNOWN RESIDENCE” AT THE TIME OF SERVICE AND WERE “REASONABLE STEPS” TAKEN?

Was Athlone House Mr Fridman’s “last known residence” at the time of service?

1. 1. This consideration arises if, contrary to the conclusion I have reached, the Claimants have not established a good arguable case that Mr Fridman’s usual residence had not ceased to be Athlone House at the time of service, and the Claimants had reason to believe that Athlone House was an address at which Mr Fridman no longer resides, in which case the Claimants would then be obliged to take reasonable steps to ascertain the address of Mr Fridman’s current residence (see CPR 6.9(3)).

1. 1. I consider that the Claimants had in fact taken very much more than reasonable steps to ascertain the address of Mr Fridman’s current residence. These included:

(1) Undertaking open-source searches of press articles, Land Registry searches and Companies House records, all of which indicated that Mr Fridman owned Athlone House and was likely to be ordinarily resident at Athlone House.

(2) Reviewing the contents of Saini J’s Sanctions Judgment.

(3) Considering hiring an investigation agent to find out such information (but, in the event, the Claimants’ solicitors were able to obtain the same themselves). It was submitted in the course of oral submissions by Mr Craig KC that the Claimants should actually have instructed an investigation agent, either in Russia or in Israel. However, the only information that would (legally) be available to an investigation agent is open-source information. There was no evidence before me that if an investigation agent had been hired, any information would have been forthcoming from open sources. As is well-known, and well-established (and as any solicitor would be very conscious of), it is only open sources that an investigation agent can legally use and that a solicitor of the Supreme Court can legally instruct an agent to use. There is no evidence before me that there is any publicly available information in Israel which would have identified the address of Mr Fridman at the flat at which it is said he now is (per Mr Fridman’s solicitors long after the event). Indeed, there is no evidence before me that he was, in fact, resident at that flat as at the date of purported service in the period in question.

1. 1. The Claimants’ enquiries yielded no results for alternative addresses for service permissible under CPR 6.9 (see Berg 1 at [19]). The Claimants’ investigations did, however, identify alternative addresses within the UK at which they tried to serve the Claim Form. As Mr Gherson conceded, at least one of those alternative addresses was effective in bringing the Claim Form to the attention of Mr Fridman and his advisors (see Mr Gherson’s Witness Statements).

1. 1. Mr Berg’s evidence is that from open-source searches that he made, these indicated that Mr Fridman might be somewhere in Russia or possibly Israel, but it was unclear where he in fact was. I accept such evidence of Mr Berg.

1. 1. Mr Fridman’s skeleton argument attempted to paint the picture that the post in question by Bloomberg News dated 9 October 2023 found by Mr Berg stated that “Mr Fridman had ‘moved to Israel'”, which made it incumbent, it was submitted, on the Claimants to take reasonable steps to ascertain the address of Mr Fridman’s current residence in Israel. In fact, the article read, “A week ago, I moved to Israel … Now I’ve flown to Moscow because of the current situation” (i.e. the current situation in Israel following the Hamas incursion). It is difficult to see why, in such circumstances, enquiries in Israel would have been relevant (or revealed useful information if Mr Fridman was no longer in Israel and in fact in Moscow).

1. 1. It was suggested that the Claimants could have asked Mr Gherson what Mr Fridman’s address was, but as already addressed above, I see no reason to believe that this would have borne any fruit in circumstances in which Mr Gherson’s firm were not instructed in the proceedings. They were positively making a point about that and the fact that they were not instructed to accept proceedings and, of course, a defendant is not obliged to give details as to where he resides and, in the present case, there had been a complete lack of any response from Mr Fridman to the Letter Before Action. The evidence strongly leads to the conclusion that Mr Fridman had no desire to take part in any proceedings. In such circumstances, I consider that it is an unrealistic suggestion that the Claimants either ought to have asked such a question or that, if asked, such a question would have borne any fruit.

1. 1. I am satisfied that the Claimants did not know about Mr Fridman’s current address or place of residence, despite having taken what amounted to very much more than reasonable steps in that regard, not least in the context of the fact that there was no address of Mr Fridman in Russia or Israel available from publicly available sources. Accordingly, I am also satisfied that, to the extent that, contrary to my previous finding, Athlone House was no longer Mr Fridman’s “usual residence”, it was his “last known residence” at the time of service and reasonable steps had been taken to ascertain his address.

Was service at Athlone House validly effected by a step prescribed under CPR 7.5?

1. 1. Mr Fridman relied on the assertion that he is not resident at Athlone House in support of his Jurisdiction Challenge Application , but made no submissions on whether service was validly effected. I am satisfied that service was effected at Athlone House on no less than four occasions:

(1) by post on 20 March 2024 (without a response pack – although nothing ultimately turned on this);

(2) by being hand delivered there on 28 March 2024;

(3) by post on 6 June 2024; and

(4) by being hand delivered there on 7 June 2024.

1. I am satisfied that service was accordingly validly effected by a step prescribed under CPR 7.5 and I declare that Mr Fridman was validly served by each of the aforesaid methods, the first of which was on 20 March 2024.