Protected tenancy — Possession proceedings — Claim served at tenant’s address — Tenant unaware of claim — Possession order made in his absence — Evidence of difficulties with post — Whether claim to be regarded as validly served — Whether tenant entitled to set aside judgment as of right for lack of notification — Whether necessary to show real prospect of successful defence — Appeal dismissed
The appellant was a protected tenant of a room in a house, the remainder of which was occupied by the respondent owner. The respondent brought possession proceedings on the ground that he would provide suitable alternative accommodation for the appellant in the form of a self-contained flat. The claim form and particulars of claim, together with a notification of the hearing date, were sent by first-class post to the appellant at the house, as permitted under CPR 6.2(1)(b). However, the appellant did not receive them and a possession order was made in his absence.
When the appellant became aware of the proceedings, he applied to set aside the order. The district judge found as facts that: (i) it had been well known that the appellant had experienced difficulties with the postal service; (ii) he had, at the time of service, been at his sister’s address; and (iii) the respondent knew of his absence. She held that service could not be regarded as having been effected and she set aside the possession order, directing that the claim be re-served at the address of the appellant’s sister.
The respondent’s appeal against that decision was allowed on two grounds. The appeal judge held that service by first-class post constituted good service, and that the possession order should not have been set aside because the appellant had no defence to the proceedings. The appellant appealed. He contended that: (i) the right to notification of a claim was a fundamental principle of law; (ii) service and notification were no longer to be regarded as the same thing, so that, even where a claimant had effected service in accordance with the rules, a defendant should still be entitled to have a judgment set aside as of right if in fact he or she knew nothing of the proceedings; and (iii) any other approach would be incompatible with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
Held: The appeal was dismissed.
On the facts found by the district judge, the judgment against the appellant had been regularly entered because the claim had been posted to him at his regular address and it had not been returned undelivered. It followed that, on the ordinary interpretation of the CPR, the judgment could be set aside only as a matter of discretion pursuant to CPR 13.3: Smith v Hughes (one of five appeals reported as Cranfield v Bridgegrove Ltd) [2003] EWCA Civ 656; [2003] 1 WLR 2441 applied. The appeal judge had not erred in exercising that discretion. The appellant’s suggested defence had no merit, and, in the present case, it would have been pointless to set aside the judgment against him: Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1 WLR 997 considered.
Article 6 of the ECHR had not been breached. The CPR code, which permitted service by post to an individual at his or her usual or last-known residence, and which allowed such service to stand as good service, unless it were known, before a default judgment had been entered, that that method of service was ineffective, provided for an accessible, fair and efficient way of administering justice. The court was empowered to set aside a judgment if a defendant could show that it had a real prospect of successfully defending the claim. The fair trial guarantees in Article 6 entitled a defendant to be heard, but, if it could not show that its defence had a real prospect of success, or that some other compelling reason existed as to why a trial should be conducted, it did not require the parties and the court to indulge in an expensive and time-consuming charade. Here, the court was satisfied that the defendant did not have an arguable defence and Article 6 did not therefore entitle that defendant to a trial: James v United Kingdom A/98 (1986) 8 EHRR 123 considered.
The appellant appeared in person; David Carter (instructed by the Bar Pro Bono Unit) appeared for the respondent.
Sally Dobson, barrister
