Practice — Notice of proceedings — Service — Place of business — Civil procedure rules — Whether rented property being landlord’s place of business for service of documents — Appeal dismissed
The appellants commenced a legal action against the respondent who rented out a property for profit. The respondent did not reside at the property and his brother, as his agent, visited to the property each week to collect the rent. When the proceedings were issued in November 2002, the respondent was named personally as the defendant and his address for service was given as that of the property in question, although the appellants were aware that the respondent did not live there.
Judgment was entered in default of acknowledgement of service and the appellants were awarded £36,282.68. Enforcement proceedings followed; the appellants applying for a charging order followed by an order for sale. In January 2004 the respondent became aware of the proceedings when a notice for sale arrived at his home address and he applied to have the judgment set aside.
Rule 6.5(3)(b) of the Civil Procedure Rules (CPR) provides that a party to proceedings can give his residence or place of business as his address for service. The proprietor of a business can be served at his place of business or last known place of business rather than at his home address. Under CPR 6.5(6), for a claimant to be able to serve on a “place of business” it has to proceed against a defendant as the “proprietor of a business”.
The district judge found that the respondent had been properly served, because the property was a place of business for the respondent within CPR 6.5 because it was rented out for profit. On appeal it was held that the respondent had not been sued as the proprietor of a business so that the service was invalid and, in any event, a property owned by the respondent and rented out to tenants was not a “place of business” as envisaged by the rules. The appellants appealed.
Held: The appeal was dismissed.
The appellants had accepted that the mere letting of a property did not render it a place of business and the fact that the respondent or his agent visited the property on a weekly basis to collect the rent could not render it so. A landlord of residential property, in particular, usually had limited rights of entry and it would be surprising if service of proceedings could be effected on a party at premises that he had no right to enter.
The appellants argued that the carrying out of some business activities at an address was sufficient to render that address a place of business, even if the main activities were undertaken elsewhere. However, the rules of service had to be applied in such a way as to achieve clarity, certainty and practicality. If the appellants’ submissions were correct, it would give raise issues regarding the frequency, duration and purpose of a landlord’s visits to property owned by the landlord in order to determine whether it was a place of business. That would be a departure from the requirement of practicality: South India Shipping Corporation v Export-Import Bank of Korea [1985] 1 WLR 585 distinguished.
John Gruffydd (instructed by E Rex Makin, of Liverpool) for the appellants; Gordon Exall (instructed by DLA Piper Rudnick Gray Cary UK LLP, of Birmingham) for the respondent: Timothy Comyn (instructed by Edwards Gildard, of Derby) appeared for the interested party.
Eileen O’Grady, barrister
