Landlord and tenant — Address for service of county court summons seeking forfeiture — Whether service at demised premises at which defendant tenant had never lived good service
By a lease
dated August 30 1978 the defendant and his mother were demised a 99-year term
of a flat at an initial yearly ground rent of £25. The lease contained
provisions for the payment of a service charge and for forfeiture of the lease
for breach of covenant. Although the flat was acquired for the defendant’s
mother, neither the defendant nor his mother ever lived at the premises. The
defendant’s mother died in 1979 and the defendant allowed his stepfather to
live at the flat. The last payment of rent and service charges was made in 1987
since when the stepfather disappeared. On July 9 1990 the plaintiff landlord
sent a notice under section 146 of the Law of Property Act 1925 concerning
arrears of service charges addressed to the defendant at the flat. On September
24 1990, pursuant to Ord 3, r3(1) of the County Court Rules 1981, the plaintiff
requested the county court to issue a summons seeking possession of the flat.
In accordance with Ord 7, r10(1)(b) the summons was sent by first-class post to
the defendant at the flat. It never came to his notice. On December 6 1990
judgment for the plaintiff was entered for recovery of possession and arrears
of rent, service charges and mesne profits. A warrant for possession was
executed on February 5 1991. Although there has been dealings with the flat
thereafter, the defendant remained the registered proprietor of it. The
defendant appealed the decision of Judge Quentin Edwards QC, who decided that
the summons had been properly served and dismissed the defendant’s application
to set aside the judgment.
Rules 1981 requires the plaintiff to state the defendant’s address for the
purpose of service. A person’s address is a place where he can receive
communications. A place where a person is
could be construed according to its ordinary meaning. Thus it does not include
a place at which the defendant is never present and at which the process does
not come to his notice. The summons was therefore not properly served. The
judgment of December 6 1990 must therefore be set aside.
The following
cases are referred to in this report.
Cooper v Scott-Farnell [1969] 1 WLR 120; [1969] 1 All ER 178, CA
R v London County Quarter Sessions Appeals Committee, ex parte
Rossi [1956] 1 QB 682; [1956] 2 WLR 800; [1956] 1 All ER 670, CA
Rolph v Zolan [1993] 1 WLR 1305, CA
White v Weston [1968] 2 QB 647; [1968] 2 WLR 1459; [1968] 2 All ER
842, CA
This was an
appeal by the defendant, Douglas Smithers, from the decision of Judge Quentin
Edwards QC, who on April 14 1993 refused to set aside a judgment of Judge
Martin QC, who on December 6 1990 had, inter alia, made an order for
possession of premises on the application of the respondent, Willowgreen Ltd.
Beverley Lang
and Javan Herberg (instructed by Parfitt Cresswell Carnt & Mudie) appeared
for the appellant; Anthony Radevsky (instructed by Finers) represented the
respondent.
Giving the
first judgment, NOURSE LJ said: Ord 3, r3(1) of the County Court Rules
1981 provides that a plaintiff desiring to commence a default or fixed date
action shall file a request for the issue of a summons. Ord 7, r10(1), provides
that service of the summons shall usually be effected (a) by the plaintiff
delivering the summons to the defendant personally; or (b):
by an officer
of the court sending it by first-class post to the defendant at the address
stated in the request for the summons.
Here, in a
landlord’s action for forfeiture and possession of a flat, the address stated
in the request for the summons was that of the flat, where the tenant had never
lived or worked. The question, which may be one of some general importance, is
whether, on its delivery there pursuant to Ord 7, r10(1)(b), the summons was
properly served on the tenant.
By a lease
dated August 30 1978 and made between the then landlord of the first part, a
management company of the second part and the defendant Douglas Smithers and
his mother of the third part, a flat known as 135 Peters Court, Porchester
Road, London W2, was demised to the defendant and his mother for a term of 99
years from 25 December 1971 at a premium of £17,500 and an initial yearly
ground rent of £25. The lease contained provisions for payment of service
charge and a provision for re-entry in standard form. By clause 8(f) it was
agreed and declared that:
Any demand
for payment notice or other document required or authorised to be given to the
Tenant shall be well and sufficiently given if sent by the Lessor or the
Company or its agent for the time being through the post addressed to the
Tenant by name or by the general description of ‘the Tenant’ or it may be left
for the Tenant at the Demised Premises . . .
The flat was
owned by the defendant and his mother as joint tenants at law and in equity.
They bought it as a home for the defendant’s mother and stepfather, but she
never lived there. She died on September 14 1979, while still living at 85
Princess Court, Queensway, London W2, the address stated in the lease to have
been that of the defendant as well as of herself. However, since 1971 the
defendant has lived at an address in another part of London: 4 Brunel House,
105 Cheyne Walk, SW10.
On his
mother’s death, the defendant became the sole legal and beneficial owner of the
flat. He offered it to his stepfather and allowed him to live there rent free
on the understanding that he would pay all the bills, including the demands for
ground rent and service charge. This arrangement was not notified to the
landlord or the management company. Nor did the defendant notify them or their
successors of any other address to which communications should be sent.
The last time
that the defendant saw his stepfather was in 1986. He did not visit the flat
between then and December 1991, when he called there and found someone else in
occupation. The porter told him that his stepfather had died. The defendant’s
solicitors have been unable to find any recorded death between 1986 and 1990 for
someone of the stepfather’s name and age. But whether he be dead or alive, it
is certain that there has been no trace of him since.
It appears
that the last payment of rent and service charge was made in 1987, presumably
by the stepfather. By that time the plaintiff, Willowgreen Ltd, had acquired
the reversion immediately expectant on the determination of the lease. A letter
addressed to the defendant at the flat dated September 15 1987 and written by
the plaintiff’s managing agents shows that arrears of service charge and ground
rent amounting to £567.08 and £12.50 respectively were then claimed. On July 9
1990 a notice under section 146 of the Law of Property Act 1925 addressed to
the defendant at the flat was served under cover of a letter from the plaintiff’s
solicitors similarly addressed.
On September
24 1990, pursuant to Ord 3, r3(1), the plaintiff filed a request for the issue
of a summons against the defendant in Bloomsbury County Court. The request was
made on form N204, which is headed, ‘Request for Issue of Summons for
Possession of Land’. It is not a form prescribed by the County Court Rules, but
a practice form approved by the Lord Chancellor. At the top on the left are
four boxes: the first for ‘the plaintiff’s full name and address’; the second
for ‘the name and address for service and payment (if different from the
above)’; the third for the ‘Defendant’s name and address’; beside the fourth
appeared the words ‘The claim is for possession of — give the full address of
the land claimed’.
In both the
third and fourth boxes the address stated was that of the flat. Curiously, the
defendant’s name was omitted from the third, although nothing turns on that.
The plaintiff also filed particulars of claim claiming possession of the flat,
together with arrears of rent and service charge, interest payable pursuant to
the terms of the lease and mesne profits at the daily rate of seven pence.
In purported
pursuance of Ord 7, r10(1)(b), an officer of the court sent the summons by
first-class post to the defendant at the flat. It never came to his notice.
There having been no reply or response on the part of the defendant, on
December 6 1990 Judge Martin QC, in the absence of the defendant, entered
judgment for the plaintiff for recovery of possession of the flat on January 3
1991, and for the sum of £4,464.89, together with mesne profits at the rate
claimed and costs on scale 3. A warrant for possession was duly issued. It was
executed on February 5 1991. Meanwhile, on July 30 1991, the plaintiff had sold
the freehold of Peters Court to Etablissement Croy (‘Croy’) and on the same day
Croy granted the plaintiff a 125-year leaseback of the flat. However, on May 9
1991 the plaintiff surrendered that lease to Croy, since when the plaintiff has
had no interest in the flat. It appears that there have since been other
dealings with it, although the defendant remains the registered proprietor of
the lease at the Land Registry.
Soon after he
discovered the position in December 1991, the defendant instructed solicitors
to act on his behalf. In due course he applied to set the judgment of December
6 1990 aside. The application came before Judge Quentin Edwards QC on April 14
1993, when he held, first, that the summons had been properly served on the
defendant and, second, that in the circumstances, especially since rights of
innocent third parties had arisen, he ought not in his discretion to set the
judgment aside. The defendant now appeals to this court.
On the
question of service the judge thought that the only obligation of the plaintiff
under the rules was to state in the request an address which had ‘a direct and
immediate connection’ with the defendant. If that was correct, I would be
inclined to think that the plaintiff did what it had to do in this case. In
view of the terms of clause 8(f) of the lease, the fact that demands and
notices under it were always sent to or left for the defendant at the flat and
the further fact that he never notified the landlord or the managing agents of
any other address to which communications should be sent, I would be inclined
to think that the address of the flat did have a direct and immediate
connection with him. However, as Mr Anthony Radevsky, for the plaintiff, has
recognised, that interpretation of the rules might, in certain circumstances,
include a number of addresses, perhaps up to four or five residential addresses
alone. For my part, I do not think that the judge’s interpretation can be
correct.
Since form
N204 is not a prescribed form, neither its front nor the notes on its back can
be resorted to in order to construe the rules. Thus we are left with Ord 7,
r10(1)(b), in which it is implicit that the plaintiff is obliged to state the
defendant’s address in the request for the summons. So far I am in agreement
with the judge. But what is the defendant’s ‘address’ for this purpose?
It is
remarkable that a question seemingly so fundamental should seemingly be so free
from authority. We have been referred to only four decided cases. Beverley
Lang, for the defendant, has referred us to R v London County Quarter
Sessions Appeal Committee, ex parte Rossi [1956] 1 QB 682, White v Weston
[1968] 2 QB 647 and Cooper v Scott-Farnell [1969] 1 WLR 120. Mr
Radevsky has also referred us to Rolph v Zolan [1993] 1 WLR 1305.
I will say at once that I am unable to see in what way that last decision
assists either side in the present dispute.
I start by
considering the question apart from authority. In ordinary parlance a person’s
address is a place at which written communications can be delivered to him. In
order that they can be delivered to him, he must, to a greater or lesser
extent, be present to receive them. The extent to which his presence is
necessary to make it his address may vary, and vary significantly, with the
circumstances. But if he is never there at all, it cannot properly be called
his address. It can, if communications will be sent on to him from there, be
called a forwarding address. But that is not the same thing as an address.
In construing
the word ‘address’ in a rule which permits service of proceedings to be made by
post, it is important to remember that that mode of service involves a
significant departure from the rule, which prevailed until well into this
century, that an originating process should, in the absence of agreement,
authority or special order, be served on the defendant or the respondent
personally. As Denning LJ (as he then was) put it in ex parte Rossi, at
p691:
When
construing this section, it is to be remembered that it is a fundamental
principle of our law that no one is to be found guilty or made liable by an
order of any tribunal unless he has been given fair notice of the proceedings
so as to enable him to appear and defend them. The common law has always been
very careful to see that the defendant is fully apprised of the proceedings
before it makes any order against him.
Having
referred to the common law writ of capias, which required the sheriff to
bring the defendant to court, Denning LJ continued:
That has all
been done away with, but the law still insists in most cases that the defendant
shall be served personally so as to be sure that he knows of the proceedings
against him. In modern times there have been a few statutes and rules which
allow service by registered post, and this is one of them. The merit of
registered post in this regard is that the postman will only deliver the letter
to the person to whom it is addressed or to someone who will take
responsibility for seeing that he gets it. Otherwise he will return it to the
sender, who will thus get to know, sooner or later, if the letter is not
received.
What we have
here is a rule which does not even require service to be made by registered
post. The postman who delivers the first-class post is expected to do no more
than put it through the letter-box or leave it on the premises, a process
fraught with the risk that the addressee will not receive it. The rule-making
authority could hardly have intended that the risk should be increased still
further by permitting first-class postal service at a place where the addressee
is never present and where it does not come to his notice.
Further
support for this view can be derived from White v Weston, where
it was held by this court that a summons had not, for the purposes of Ord 8,
r8(3) of the County Court Rules 1936, been sent to the defendant by ordinary
post because the letter containing it had been sent to a place at which the
defendant had ceased to reside more than five months earlier; with the result
that it was not ‘properly addressed’, as required by section 26 of the
Interpretation Act 1889. At p658A, Russell LJ said:
But a summons
addressed to an address with which the defendant has had no connection for five
months or more cannot be said to be properly addressed.
At p658C, he
said:
The function
of service is primarily to bring to the attention of the person to be served
the fact that he is being sued, and particular language is in my judgment
required if something short of that is to constitute service.
Sachs LJ said,
at p661D:
I can find no
warrant in any of the County Court Rules or in section 26 of the Interpretation
Act 1889, for holding that service in purported pursuance of Ord 8, r3, at an
address which at the relevant time was not the abode, residence, or place of
business of a defendant is good service should the relevant document not in
fact reach him.
Mr Radevsky
submits that the first of those observations of Russell LJ supports the judge’s
‘direct and immediate connection’ view of the question. I reject that
submission. I think that Russell LJ, like Sachs LJ, regarded it as essential
that the defendant should have had some continuing presence there before the
residence in question could properly have been called his address. It seems
that that was the view of Russell LJ’s observation taken by Willmer LJ in Cooper
v Scott-Farnell at p127B-C.
The position,
therefore, is that the three relevant authorities to which we have been
referred support the view that the word ‘address’ in Ord 7, r10(1)(b), should
be construed in accordance with its ordinary meaning. Thus, it does not include
a place at which the defendant is never present and at which the process does
not come to his notice, albeit that it is a place which, in the circumstances
of this case, may well have had a direct and immediate connection with him. It
follows that the summons here was not properly served on the defendant.
What then
should be the fate of the judgment entered by Judge Martin QC on December 6
1990? The judgment having been obtained
in proceedings initiated by a summons which was not properly served on the
defendant, it seems plain that it must be set aside ex debito justitiae.
Mr Radevsky has submitted that there is some sort of discretion in the matter,
but it is clear both on principle and from White v Weston that that
is not the case.
I would
therefore allow the appeal, discharge the order of Judge Quentin Edwards and
set aside the judgment of Judge Martin QC entered on December 6 1990.
Agreeing, THORPE
J said: The facts and circumstances which give rise to this appeal are no
doubt highly unusual. However, it is agreed between counsel that the county
court rule that governed the service of the respondent’s default summons on the
appellant was Ord 7, r10(1)(b). That subrule provides that service shall be
effected:
by an officer
of the court sending it by first-class post to the defendant at the address
stated in the request for the summons.
The request
for issue of summons for possession of land is a practice form N204. On its
face are seven numbered boxes for completion. Box 3 requires the insertion of
‘Defendant’s name and address’. Beside box 4 appears ‘the claim is for
possession of — give the full address of the land claimed’. In this case box 4
was accurately completed ‘Flat 135 Peters Court, Porchester Road, London W2’.
Precisely the same words were inappropriately typed into box 3. The defendant’s
name was not stated and the premises in dispute had never been his address. Had
due care been given to the completion of box 3 it might have read ‘Douglas
Smithers whose present address is unknown to the plaintiff’, for the request
for summons was dated September 24 1990, by which date the premises had been
empty for three years.
However, the
question of law in the appeal is whether the judge was right to construe the
words ‘the address’ in Ord 7, r10(1)(b), as ‘an address which has direct and
immediate connection with the defendant’. In my judgment, the judge was plainly
wrong in that
submissions of Mr Radevsky it is contrary to the principles stated in the
judgments in White v Weston [1968] 2 QB 647. The principle is
stated by Sachs LJ in these terms:
It follows
that only an explicit and clear provision in a statute, or in rules having
statutory force, can operate to deprive a citizen of his right to receive
notice of the commencement of process against him; and to permit service other
than personal at an address which is not in fact his abode (to use the word
employed, for instance, in rule 19(b) of the Magistrates’ Courts Rules,
1952) nor his residence, nor his business address would be a provision clearly
calculated to deprive him of that right.
Russell LJ in
his judgment had said:
But a summons
addressed to an address with which the defendant has had no connection for five
months or more cannot be said to be properly addressed.
That sentence
seems to me to support the appellant’s argument. Mr Radevsky claims it for his
case by advancing it by corollary as the foundation for the judge’s test,
namely did the address have a direct and immediate connection with the
defendant? It is plain to me that far
from formulating a test so wide and potentially productive of injustice,
Russell LJ was upholding the principle that the function of service is to bring
to the attention of the person to be served the fact he is being sued and
particular language is required if anything short of that is to constitute
service. I do not, myself, see any useful distinction between the proposed
defendant’s abode and the proposed defendant’s residence. In most cases ‘the
address’ in Ord 7, r10(1)(b), will be the address at which the defendant
ordinarily resides or works.
I therefore
conclude that the summons was not served in accordance with the rules, and the
judgment should be set aside as of right ex debito justitiae. Mr
Radevsky’s argument, that even if the appellant was not served in accordance
with the rules he is not entitled to have the order set aside ex debito
justitiae, is also precluded by the judgment of Russell LJ in White v Weston.
I, too, would
allow this appeal.
Appeal
allowed.
