Possession–Summary procedure under order 113–Named defendants entitled to individual service despite the presence of large numbers of unnamed defendants entitled only to service by deposit of summonses–Error not fatal, matter adjourned to enable the defect to be cured
These were
three originating summonses under order 113 of the Rules of the Supreme Court
by which the Greater London Council sought possession of Goldie House, Ritchie
House and Welby House, Hazellville Road, London N19, from 190 named defendants
and others unknown.
B Levy
(instructed by the council solicitor) appeared for the plaintiffs, and Lord
Gifford (instructed by Islington Community Law Centre) appeared for some of the
named defendants in each summons.
Giving
judgment, Fox J said that the case concerned three blocks of flats on the
Hornsey Rise Estate, Upper Holloway, London. Squatters began moving in when the
legal tenants were moved out so that the premises could be modernised. It was
contended on behalf of those defendants who were represented by counsel that
the summonses had not been properly served on the named defendants. The
summonses were issued under order 113 of the Rules of the Supreme Court, and
service was dealt with by rule 4. Subrule (1) (a) required service on
identified defendants to be in accordance with order 10, rule 5, which required
a copy of the summons and affidavit to be left at the premises of which
recovery of possession was sought or to be sent to every such defendant at such
premises. He (his Lordship) would take as typical the case of Goldie House,
where the plaintiffs identified 71 of the persons in occupation and summonses
were issued against them and against persons unknown. A bundle of copies of the
summonses and affidavits was left affixed, open, to the front door of each flat
in the premises, except for three which were barricaded. In addition, a bundle
was affixed to the front door of the building, and other bundles were fixed on
the first-floor landings. In all 89 bundles were distributed about the
premises. It was accepted that so far as those unknown were concerned this was
good service, but it was contended that this was not valid service on the named
defendants, because summonses were not addressed to them individually.
The plaintiffs
contended that the requirements of order 113, rule 4 (1) (b) were satisfied by
leaving copies of the summonses and affidavits at the premises. But rule 4 (1)
(b) was governed by the opening words, ‘Where identified the originating
summons together with affidavit shall be served on him.’ It seemed to him (his Lordship) to follow
from this that where more than one occupier was identified there must be proper
service in respect of each occupier who was identified, and the specified
documents must be served ‘on him’; that indicated some form of individual,
though not necessarily personal service. Merely to leave bundles in the way the
plaintiffs did, without direction to individuals, would seem a wholly
unsuitable mode of individual service. Accordingly the named defendants in the
case of Goldie House were not effectively served, and it was accepted that the
same result must follow in the case of the named defendants in Ritchie House
and Welby House. However, the irregularity was not one which rendered the
proceedings invalid. The three summonses would be adjourned for three weeks to
enable the irregularity to be cured by service of copies of the summonses and
affidavit evidence in support on each of the named defendants by leaving a copy
of the summons and evidence in an envelope addressed to each named defendant at
each house.
The defendants
who had appeared by counsel were awarded half their costs.
