Nakiesha Aston v Ryan Tew & Anor [2025] EWCC 20

[2025] EWCC 20Case No 003DC837IN THE COUNTY COURT AT STOKE ON TRENTBethesda StreetHanley, Stoke-on-Trent, ST1 3BPDate Date: 23 January 2025
Before
HHJ Truman(sitting at the County Court in Birmingham)
Between
MISS NAKIESHA ASTONClaimantMR RYAN TEWFirst DefendantALWYN INSURANCE COMPANY LIMITEDSecond Defendant
Mr Reddiford of Counsel (instructed by Lyons Davidson Ltd) for ClaimantMr Rudd of Counsel (instructed by DAC Beachcroft Claims Limited) for Second DefendantNo appearance by or for First DefendantHearing Hearing Date: 1 August 2024
APPROVED JUDGMENTI direct that pursuant to CPR 39APD6 paragraph 6.1 no tape recording shall be made of this judgment and that copies of this version shall stand as authentic and be treated as the official transcript
[1]This matter arises out of a road traffic accident that occurred on 23 May 2018. At the time of the accident, Nakiesha Aston (the Claimant), who was then aged 17, was a pillion passenger on the motorcycle of her friend, Ryan Tew, who was then 16. The Claimant apparently sustained quite serious injuries. In view of the Claimant’s age, the limitation period did not expire until 3 years from her 18th birthday i.e. 21 April 2022. A Claim Form seeking substantial damages was issued on 5 April 2022, naming Ryan Tew as First Defendant and his insurance company as Second Defendant. The Claim Form had to be served within its four-month validity period i.e. by 5 August 2022. On 27 July 2022, a week before the Claim Form’s validity expired, the Claimant’s solicitors posted proceedings to the First Defendant and, separately, to the Second Defendant’s nominated solicitors. The Claimant’s solicitors had previously been notified that the insurers were not indemnifying the First Defendant (although they obviously had liabilities as the relevant Road Traffic Act insurer) and thus the Claimant’s solicitors were aware that separate service on the First Defendant was required. The envelope containing the proceedings sent to the First Defendant was sent back to the Claimant’s solicitors marked “Return to Sender” and “no longer lives here”. The standard form of notification from the Post Office said:
“We were unable to deliver this item as the addressee has gone away”
. The address used (“the Robin Close address”) was the one that the Claimant had known the First Defendant had lived at the time of the accident, which was also the address given by him to the Police when they were investigating the accident circumstances.[2]Following the return of the Court papers, on 15 August 2022, the Claimant’s solicitors emailed the insurers asking if they had a current address for the First Defendant. 15 minutes later, the solicitors sent a second email with a notice of application seeking to extend the time for service of the Claim Form by 3 months, to enable the solicitors to take further steps to ascertain the First Defendant’s address. On 30 August 2022, the application was withdrawn because, on reflection, the solicitors believed good service on the First Defendant had taken place. The insurers’ solicitors then issued an application dated 23 September 2022 seeking that the Claim be dismissed pursuant to CPR 3.1, or struck out pursuant to CPR 3.4 (2) (c), or that the Second Defendant be granted summary judgment under CPR 24. That application came before District Judge E Harrison on 20 February 2024 (there had, apparently, been listing issues). She reserved judgment, handing it down on 17 April 2024. She concluded that the Claim Form had not been validly served on the First Defendant and she struck the Claim out under CPR 3.4 (2) (c), and awarded summary judgment to the Second Defendant under CPR 24. The Second Defendant was awarded costs against the Claimant, not to be enforced without the permission of the Court. The Claimant sought leave to appeal the order made, which was granted. The substantive hearing came before me on 1 August 2024. Like the District Judge, I considered it appropriate to reserve judgment.[3]Counsel for the Claimant/Appellant submitted that the District Judge had correctly identified the issue to be determined, when she said at Paragraph 18 of her judgment (page [A31] of the Appeal Bundle):
“The question to be answered is a simple one, albeit that the route to its resolution is not straightforward. What, if any, steps does a claimant need to take to identify if an address that they hold for a defendant as his “last known residence” remains a valid address before relying upon it for the purposes of service of a claim form? The claimant’s position is that she is entitled to rely on the address known to her. The 2nd defendant’s position is that the claimant in this case should not be entitled to rely on an address provided almost 4 years prior to the issue of proceedings without first exercising “reasonable diligence” in ascertaining if that address remained current or taking “reasonable steps” to ascertain a current address having reason to believe that the address was not the last known residence.”
Counsel for the Claimant submitted that the District Judge was wrong in law to have reached the conclusion that the Claimant had to exercise “reasonable diligence” to ensure, prior to serving, that the address remained the Defendant’s “usual residence”. He submitted that the obligation to make checks only came about once the Claimant had “reason to believe” that the Defendant no longer lived at that address.[4]Under CPR 6.9 (2), where a Defendant (who is an individual rather than a business) has not nominated solicitors to accept service or has not given an address for service (as was the case here in respect of the First Defendant), and the Claimant does not intend to serve the Defendant personally, the Claim Form must be served at the Defendant’s “usual or last known residence”. CPR 6.9 continues: (3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (“current address”). (4) Where, having taken the reasonable steps required by paragraph (3), the claimant –(a) ascertains the defendant’s current address, the claim form must be served at that address; or(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. (5) If, under paragraph (4) (b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15. (6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant – (a) cannot ascertain the defendant’s current residence or place of business; and (b) cannot ascertain an alternative place or an alternative method under paragraph (4) (b).[5]Whilst the Claimant’s solicitors had initially made an application to extend the validity of the claim form, apparently thinking that they were required to take “reasonable steps” to ascertain the First Defendant’s current address, they had withdrawn that application on the basis that the document had been sent to what they believed at the time was the First Defendant’s current address, the claimant having no “reason to believe” that the First Defendant “no longer resided” there, and therefore the First Defendant had been appropriately served. After the Second Defendant issued its application for strike out etc, the Claimant’s solicitors did make further enquiries and, with very little difficulty, identified a different address (“the Essington Way address”) as being the current address of the First Defendant.[6]There are no cases directly on point. There are cases from a Deputy High Court Judge and from the Court of Appeal where there were some obiter discussions. Counsel for the Claimant carefully took me through the previous version of the CPR and the case law regarding service. In his Skeleton Argument, he had said: The central issue in this case is whether there is a duty implied into CPR Part 6.9 (2) to the effect that a Claimant wishing to serve a Defendant by post at his usual residence must first exercise reasonable diligence to discover whether the Defendant (still) resides at that address. It is not in issue that:(a) there is no express duty in the rules to that effect;(b) since 2008 there has been an express provision in the rules that if the Claimant has reason to believe that the defendant no longer resides at the address, the claimant must take reasonable steps to ascertain the Defendant’s current address (Part 6.9 (3), as amended). As to whether there is an implied duty, in summary the Claimant’s arguments that there is not are as follows: (a) such an implied duty would wholly or substantially overlap with the express provision in 6.9 (3), which is a strong argument against implication; (b) such an implied duty involves a substantial re-writing of the rules, which the Court of Appeal expressly deprecated in Marshall v Maggs [2006] EWCA Civ 20;(c) if the rules committee had wanted to impose a duty to use reasonable diligence, it could easily have amended the rules to do so when they were amended to incorporate 6.9 (3) in 2008. It did not do so;(d) it would render the service at a last known residence (expressly permitted by 6.9 (2)) substantially otiose because if reasonable diligence is required, it will be possible to ascertain if the defendant still lives at the address;(e) it over complicates the steps necessary for a claimant to effect service.[7]Counsel submitted that, with regard to “usual or last known residence”, it was the Defendant’s position that “last known” had an implicit duty for the Claimant to ascertain whether it was still a current address. He referred to Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441. That case actually concerned five cases where there had been various service problems. The relevant one in terms of the index case was Smith v Hughes, where a Defendant had not provided an address for service and did not have solicitors acting for him. The Claimant’s solicitors, relying on the then rule 6.5 (6) sent the Claim Form within the time limit to the Defendant at the address of his last known residence more than two years after he was known to have vacated it. The District Judge had concluded that the Defendant would not get to know of the proceedings and, in the absence of any application by the Claimant’s solicitor for service by an alternative method, as contemplated by rule 6.8 (1), the Defendant had not been served. The Claimant appealed and the appeal was allowed. From the head note, it was said that the two conditions precedent for the operation of the provisions in rule 6.5 (6)’s “usual or last known residence” were that no solicitor was acting for the party to be served and that that party had not given an address for service; that if those conditions were satisfied then the rule plainly stated that the document to be served had to be sent or transmitted to or left at the individual’s last known residence; that the Claimant’s knowledge or belief that the Defendant was no longer living at his last known residence therefore did not prevent service being effected by sending or leaving the claim form at that address; and that, accordingly, the Claimant had effected good service of the claim form.[8]Part of the basis for the District Judge’s decision in that case was:
“to purport to serve at the last known address two years and some after the defendant has vacated it without making further enquiry cannot be doing justice between the parties. It cannot be expected that the first defendant will get to know of those proceedings and that is the purpose of service.”
The Court of Appeal, at paragraph 102, held that the relevant rule was “plain and unqualified. We see no basis for holding that, if the two conditions are satisfied, and the document is sent to that address, that does not amount to good service. The rule does not say that it is not good service if the defendant does not in fact receive the document. If that had been intended to be the position, the rule would have said so in terms. Nor can we see any basis for holding that, if the claimant knows or believes that the defendant is no longer living at his or her last known residence, service may not be effected by sending the claim form, or leaving it, at that address. That would be to fly in the face of the clear words of the rule. The rule is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied. As we have said, there is no suggestion in this case that 45 Whitworth Close was not Mr Hughes’s last known residence. If the MIB had disputed the claimant’s claim that this was Mr Hughes’s last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant’s actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal.”[9]The points that Counsel for the Claimant derived from this was that the Court of Appeal said that if a person followed the rules, and served at the last known address, that was good service. Whilst paragraphs 102 and 103 of the Judgment raised the potential issue of actual and constructive knowledge, the Court of Appeal said specifically that that question did not arise in that particular case. Counsel submitted that it was understandable for a District Judge to have thought that if a Claimant knew that the Defendant was not there, the Claimant should take other steps as it would be known that the Defendant would not receive the proceedings. Counsel submitted that that was not the issue in the index case. The Claimant here did not know at that stage that the Defendant was no longer at the address to which the proceedings were posted. Counsel submitted that the original suggestion of “reasonable diligence” in Smith v Hughes arose against a clear factual background of a Claimant knowing that the defendant was not there.[10]Counsel went on to consider Collier v Williams (Marshall v Maggs) [2006] 1 WLR 1945. Two of the three Court of Appeal Judges (Waller and Dyson LJJ) in this case had also sat in Smith v Hughes. In Marshall v Maggs, the Defendant had solicitors but they had not confirmed that they had instructions to accept service. The Claimant’s solicitors therefore served the Claim Form on the Defendant himself by sending it by first class post to an address to which they had previously corresponded with the Defendant. That correspondence had undoubtedly been received by him as he instructed solicitors to deal with it. It was later held that that the Defendant had never lived at the correspondence address. The case discussed the meaning of “last known residence” and, in particular, whether the honest and reasonable belief that a Defendant resided at an address was sufficient if the Defendant had in fact never resided at that address. At paragraph 68 onwards of the Judgment, it was said: No authority has been cited to us in which the court has had to decide whether an address can be a person’s last known residence if it was never his residence at all. As Mr Butler points out, the rule could have been expressed in terms of “the address reasonably believed to be the usual or last residence of the individual”. The use of the concept of knowledge was deliberate. There is no other area of the law where the concept of knowledge is equated with that of belief. No authority has been cited to us in support of the proposition that a piece of information which is false can nevertheless be known. As a matter of the ordinary meanings of words, to say “I know X” entails the proposition that “X is true”. We do not see how the phrase “last known residence” can be extended to an address at which the individual to be served has never resided. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words “or reasonably believed” in the phrase “the address known to be the last residence of the individual” adds to certainty or reduces the risk of satellite litigation. It follows in our judgement that the judge was right to hold that service was not effected on the defendant’s last known residence for the simple reason that he had never resided at 47 Hays Mews. What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of “last known residence” we think it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. [Mr Zuckerman had suggested that the test should merely require Claimants to show that they believed the address in question to be the Defendant’s last known residence, and that such belief was not patently unreasonable, in the sense that the Claimant did not turn a blind eye to facts that suggested otherwise.] What state of mind in the server is connoted by the words “last known”? In our judgment, Mr Zuckerman’s interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word “known”. In our view, knowledge in this context refers to the serving party’s actual knowledge or what might be called his constructive knowledge, we arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgement. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgements.[11]Counsel for the Claimant in the index case reminded me that Marshall v Maggs was a case where the Defendant had never resided at the address at which the Claimant purported to serve. That was not an issue in the index case, where the Defendant had previously resided at the address to which the Court papers were sent. Counsel referred back to Smith v Hughes where that Claimant had known that the Defendant did not live at the address, hence the question of reasonable diligence understandably arising. He submitted that the District Judge in the index case had not drawn a distinction between a position where a Claimant knew a Defendant was no longer there and a position where the Claimant did not know that the Defendant was no longer there. Marshall v Maggs had not drawn that distinction either, in the context of its general discussion, but Counsel submitted that it would be wrong to treat that section of the Judgment as applying to both types of position (perhaps especially so when both cases were heard before the change in wording of CPR Part 6). He submitted that the discussion regarding an implied obligation of reasonable diligence was only for cases where the Claimant knew the Defendant was not there, and not for cases where the Claimant did not know. It should only be taken to apply to the circumstances of the actual case where it was being discussed.[12]The previous version of CPR Part 6 on service was changed in 2008 to include what is now CPR 6.9 (3) – (6) i.e. those provisions which deal with what a Claimant should do where he has reason to believe that the Defendant is no longer at an address. Counsel asked why did the Rules Committee insert that? He submitted that it was clearly meant to deal with the situations discussed hypothetically in Smith v Hughes and Marshall v Maggs. The Rules Committee wanted to make it plain that if the Claimant knew the Defendant was no longer at an address, the Claimant could not just serve at that address but had to do more. He submitted that the Committee was seeking to remedy the mischief identified in Smith v Hughes and that no other explanation for (3) worked. He submitted that the amendment was to make express the implied duty in Smith v Hughes, taken up in Marshall v Maggs, that a Claimant has to make enquiries if he knows that the Defendant is no longer at the address. He submitted that both Smith v Hughes and Marshall v Maggs had to be seen as referring to the type of case where the Claimant knew the Defendant was no longer there. The cases were not authority for extending that principle to cases where the Claimant did not know the Defendant was no longer there.[13]Counsel then moved on to Boettcher v XIO (UK) LLP [2023] EWHC 801 (Comm) a decision of a Deputy High Court Judge. The case was decided after the insertion of (3) – (6) in Rule 6.9. In that case, a Letter of Claim had been sent to a Mr Geyer at Flat 10, Savile Row, London W1S 3PZ in June 2021. It will be seen that the address lacked any building number. That correspondence was subsequently returned marked “address incomplete”. There was also email correspondence sent to Mr Geyer. In September 2021, a Letter of Claim was sent to Mr Geyer in Germany and Switzerland, as well as to Flat 10, 33 Savile Row, London W1S 3PZ. Proceedings were then issued against, inter alia, Mr Geyer, with the Claim Form being sent to Mr Geyer at Flat 10, 33 Savile Row, London W1S 3PZ in October 2021. The Claimant later applied for permission to serve the proceedings outside the jurisdiction upon Mr Geyer. Permission was so granted. Mr Geyer applied to set aside the service of the proceedings at the Savile Row address. The first issue was whether the service of the proceedings on Mr Geyer at the Savile Row address was valid.[14]The evidence on behalf of Mr Geyer (which included evidence from his solicitor) was that he had ceased to reside at the Savile Row address some years prior to the purported service of the Letter of Claim and the issue of proceedings, as he had left the property in January 2018 and surrendered the lease at the end of March 2018. Whilst the Claimant did not admit that evidence, there was no evidence to contradict it. There was evidence to show that Mr Geyer was residing in Switzerland some six months before the alleged service of the proceedings within the jurisdiction. The Savile Row address was therefore said not to be his “usual residence”. The Claimant put his case for valid service on the basis that the Savile Row address was Mr Geyer’s last known residence.[15]The Deputy High Court Judge considered, at paragraph 49 of his Judgment, that: Based on these authorities, the following observations may be made about the concept of the defendant’s last known residence in order to test the validity of service at that address:(1) the claimant must establish that there is a good arguable case that the address at which the 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 relevant 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.[16]The Claimant’s position was that he had no reason to believe that Mr Geyer no longer lived at the Savile Row address. There was quite a lot of evidence to show why he had believed that Mr Geyer had lived at the Savile Row address (which he had) and why it was said that the Claimant had no reason to believe that matters had changed. Counsel for Mr Geyer submitted that even on the Claimant’s own evidence, he had known that the Savile Row address was not Mr Geyer’s last known address because he had sought information in July 2021 and obtained details of an address in Germany. Also, in August 2021, he had identified a further address for Mr Geyer in Switzerland. By August 2021, the Claimant had therefore known that Mr Geyer no longer resided at the Savile Row address, and that he was now residing in Switzerland, having previously resided in Germany. (There were other matters for and against what might be known regarding Mr Geyer’s place of residence.) The Deputy High Court Judge held that the evidence established that there was a good arguable case that the Savile Row address was Mr Geyer’s last known residence, as far as the Claimant was aware or ought to have been aware by the exercise of reasonable diligence, within the meaning of CPR 6.9 (2). The Judge was satisfied that the Claimant had made a number of enquiries regarding Mr Geyer’s residence. He noted that the fact that Mr Geyer had a number of residences was not a reason why the Savile Row address could not be a last known, or even a usual, residence. The Judge noted that CPR 6.9 (5) only applied if the Claimant had reason to believe that Mr Geyer no longer resided at the Savile Row address, but concluded that the Claimant’s enquiries had not given him a reason to believe that Mr Geyer no longer resided there. The Judge therefore held that the service upon Mr Geyer at the Savile Row address was valid.[17]Counsel for the Claimant in the index case submitted that the Judge in Boettcher had been referred to a number of authorities (which had been set out) but the Judge had not apparently been referred to Smith v Hughes. Counsel submitted that when the Judge had set out a number of tests to check the validity of service at an address, those tests were actually obiter and did not draw a distinction between those cases where the Claimant did, or did not, know that the Defendant was no longer there. Counsel submitted that the exercise in Boettcher was very different from the index case. In Boettcher, the question was whether the address was known, and reasonably known, by the Claimant to be the Defendant’s last known residence. The issue in Boettcher was said to be only whether a Claimant, by making enquiries, had acquired knowledge that an address was the Defendant’s last known address. As the Claimant had made enquiries, the Court held that he did reasonably know it was the Defendant’s last known residence. Counsel submitted that Boettcher had not been looking at whether and in what circumstances a Claimant should be fixed with knowledge that an address was not the Defendant’s usual address for service. Thus, the question of whether a Claimant who had not made enquiries should have done so did not arise.[18]Counsel submitted that Boettcher was only looking at ways in which the Claimant might consider that a place was someone’s last known address ie by making enquiries. Other ways of finding that out might have been by a Defendant telling the Claimant that that was his address, or having someone else, such as the Police, say that was the person’s address. Counsel submitted that that was different from imputing to a Claimant knowledge which they did not have, but which it was said they should have had if they had made reasonable enquiries. Counsel said these were two different things. One was how you obtained knowledge, the other was the imputation of knowledge which someone did not possess. Counsel submitted that Boettcher was only dealing with the adequacy of the information that the Claimant did possess in support of his “knowledge” that that was where the Defendant did reside.[19]Counsel submitted that the observations in paragraph 49 of Boettcher were general ones. As the Judge was not referred to Smith v Hughes, and the distinction between knowing or not knowing that someone was at an address, his observations had to be taken with care. He submitted that the general observations were not a substitute for clear analysis of what the cases did actually decide and what the CPR says. This was illustrated because, in paragraph 49, the Judge made no reference to some of the cases decided under the old version of CPR 6. There had been no consideration of (3)– (6) as since inserted. He submitted that to elevate the obiter comments at paragraph 49 to a higher status was wrong in this case.[20]Counsel requested that we should go back to the current wording in the CPR. From that, he submitted, it was clear that taking the steps in Part 6.9 (2) and (3) (requiring service at the usual/last known residence, and requiring the taking of reasonable steps where a Claimant believes a Defendant is no longer there) was all that the Rules required, and that was all that Smith v Hughes and Marshall v Maggs had required, the trigger being when the Claimant knew that the Defendant was no longer there.[21]Counsel submitted that, when looking at the District Judge’s decision in the index case, she had taken what looked like blanket observations in Smith v Hughes and Marshall v Maggs to be blanket observations for all last known residence cases, when in reality they only applied to cases where the Claimant knew the Defendant was not there. The accuracy of that submission was said to be supported by the rule change only applying to cases where the Claimant did know that the Defendant was not there.[22]Counsel asked, “What about the more general proposition that there should be an implied obligation on a Claimant to make enquiries before trying to serve a Defendant?”. He submitted that if that were what (3) now meant, it was more onerous than it was before. In Smith v Hughes, the Claimant had been entitled to serve at an address where the Defendant was known not to be (because it was the last known address). The Second Defendant in the index case was essentially saying that the Claimant did not know that the Defendant was no longer at that address, but that the Claimant could not serve at that last known address as there was an implied duty to take reasonable steps now (whereas under Smith v Hughes the Claimant could still have served without those steps).[23]Counsel asked whether the decision of the District Judge could still stand now that any support from the authorities had been removed. He relied on the submissions that he had made to the District Judge as set out in paragraph 28 of her Judgment, namely:(a) 6.9 (3) identifies when there is an obligation to make enquiries where the claimant has reason to believe that the defendant no longer lives at a last known address which would be otiose if there was an implied obligation to do this under r6.9 (2).(b) A requirement to make enquiries under 6.9 (2) would render the obligation to serve at the “last known” address redundant – in which case further enquiries would be necessary(c) the rules as to service are intended to provide clear and straightforward mechanisms for effecting service (per Dyson LJ in Cranfield v Bridgegrove [2003] 1WLR 2441) and should be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation (Dyson LJ in Collier/Marshall above); an implied obligation to make enquiries before service is contrary to these objectives(d) enquiries would significantly and needlessly escalate the overall costs burden.[24]Counsel submitted that where the Rules set out when a Claimant should make enquiries, there should not be any implied duty for other occasions. If the Rules Committee had wanted the Claimant to make enquiries in other cases, they could have said so but did not. If there were an implied obligation, to take effect even where the Claimant did not know that the Defendant was no longer there, that would render (3) basically otiose. Why would you need to say that the Claimant should make enquiries in certain cases, but not others, if enquiries had to be made regardless? He submitted that an implied test would make the ability to serve at a last known address, without doing more, basically inapplicable. A Claimant would always have to do more. It would rob “last known residence” of almost any meaning. A Claimant would just not be able to rely on it. The Court of Appeal had said that the CPR was trying to provide a clear mechanism for service. If one had to imply obligations, that was not a clear structured mechanism for service. It would almost inevitably create traps for the unwary. What would be required would vary from case to case. The length of time since a Claimant had obtained the relevant information could affect matters. How long ago would count as still remaining good information? Would three months be all right? One year? What about the quality of the knowledge? He submitted that that all counted against a clear structured mechanism.[25]He submitted that there was no authority supporting an implied obligation to exercise reasonable diligence in cases where the Claimant did not know that the Defendant was no longer there. Also, he said there were good reasons why such an obligation should not be implied. He submitted that the authors of the White Book were correct when they said in the commentary to the Rules at 6.9.4 that: Before the provisions in paras (3) to (6) of r6.9 came into effect, there was some authority for the provision that (at least in certain circumstances) a claimant was required to make reasonable enquiries as to the defendant’s “current” place of residence or business, before purporting to effect service at the defendant’s “last known” residence or place of business (see Cranfield v Bridgegrove [2003] EWCA Civ 656… Collier v Williams [2006] EWCA Civ 20…, and cases referred to therein). The new provisions make it clear that that duty arises only where the claimant has “reason to believe” the matters referred to in para (3). Counsel summarised this as showing that there was no implied obligation to make further enquiries in circumstances like the case with which we are concerned, where the Claimant had no reason to believe that the Defendant no longer resided at the address.[26]In the hearing before the District Judge in the index case, the Defendant had put their position in two ways: the first was that there was an (implied) obligation to check the address (the reasonable diligence argument), the second was that the Claimant did have “reason to believe” that the Defendant no longer lived at the address, and as she had not carried out any checks, she failed to take the “reasonable steps” required by CPR 6.9 (3). The grounds for the second argument were that, due to the passage of time, the Claimant should have been aware that the Defendant’s address “might” have changed given his age and circumstances. In essence, that related to the fact that four years had elapsed, and families might well change addresses in that period of time. Also, the First Defendant had only been 16 at the time of the accident, and in the intervening four years, might well have ceased to reside with his parents and have taken up occupation elsewhere. The District Judge held that CPR 6.9 (3) required something more than mere suspicion that a Defendant might have moved, otherwise there would arguably be a need to check an address right up to the date of service, which would support the Claimant’s submission that the Second Defendant’s argument would mean that there was no real difference between “reasonable diligence” and “reasonable steps” (paragraph 37 of her Judgment). She noted that the rule was drafted in positive terms – that the Claimant “has reason to believe that the address… is an address at which the defendant no longer resides”. She considered that was a reactive obligation, rather than a proactive obligation. She considered that the passage of time and the First Defendant’s age were enough to provide suspicion, but not, without more, a reason to believe that, given the facts of the case, the “knowledge” was so old that reasonable diligence was required under CPR 6.9 (2) in any event. That part of the District Judge’s decision was not the subject of a cross appeal by the Second Defendant, and therefore still stands and does not form part of the submissions before me. The question is therefore purely whether the Claimant had an implied obligation of reasonable diligence.[27]The Second Defendant understandably relied heavily on the comments made by the Court of Appeal in Smith v Hughes and Marshall v Maggs, together with the more recent decision of Boettcher. Counsel submitted that the Court of Appeal had given guidance on the meaning of “usual or last known residence” and that it had been held (albeit obiter) that knowledge in this context must include actual or constructive knowledge ie that which a party could have acquired exercising reasonable diligence. In Boettcher, the Court had considered a number of authorities (although Counsel had accepted in his original skeleton argument that those authorities - Invanchev v Velli [2020] EWHC 1917 (QB) and Relfo Ltd (In Liquidation) v Varsani [2009] EWHC 2297 (Ch) - did not assist the Court). Counsel relied on the fact that the wording of “usual or last known residence” within CPR Part 6 had not changed when the Rule was amended (so, by extension, the meaning of the phrase had not changed, and thus, what had to be done to demonstrate that it was the usual or last known residence). He submitted that, in Boettcher, it had been accepted as a correct proposition of law (at paragraph 49.5) that reasonable diligence was required. Counsel observed that, indeed, it was clear from the Judgment that neither party had sought to persuade the Judge otherwise. Counsel therefore submitted that the District Judge had correctly applied the law when reaching her decision. Counsel also submitted that the District Judge had properly recognised that there were a number of difficulties and obscurities in the wording of CPR 6.9 (following her consideration of Relfo), but he submitted that there were a litany of reasons as to why, from a practical standpoint, reasonable diligence was necessary and should be required, and Marshall v Maggs and Boettcher should be followed.[28]In Relfo, the Defendant (a British citizen) spent much of the year working abroad. He and his wife owned a property in Edgware, Middlesex. His wife and their three children (aged 9, 19 and 20) lived at the Edgware property, together with the Defendant’s father, mother and disabled sister. The Defendant was not estranged from his wife and he would visit and stay at the property to the extent that his work permitted. Proceedings were left with the Defendant’s father at the Edgware property. The Defendant learned of them two days later. In related proceedings in Singapore, the Defendant had described the Edgware property as his residence, or at least one of them, and had called it his “home”. In the English proceedings, he appeared to have tried to give a very different picture of where he was residing, namely that he resided in Nairobi and that he had no residence in the United Kingdom. There were clearly opposing submissions on whether the Edgware property was the Defendant’s “usual or last known residence”.[29]The issue before the Court of Appeal was whether or not the Edgware property was a “usual residence”, rather than the Defendant seeking to persuade the Court that he did not reside at the Edgware property at all at the date of service. The Court below had had to balance the competing arguments on the question of “usual residence” and had held that it was the Defendant’s usual residence. The Court of Appeal upheld that decision and noted that a person might have more than one “usual residence”. In view of the decision on “usual residence”, the Court did not need to consider whether the address was a “last known residence”. The Court noted various issues with the wording of CPR 6.9 (3) to (6) but none of those issues appear to affect the situation in the index case. In respect of those issues, Etherton LJ at paragraph 35 said, ”In short, where the defendant continues to reside at premises which are not the defendant’s usual residence, there is doubt as to when, and, if so, how the provisions of CPR r6.9 (3) to (6) are engaged and operate. I do not consider it is appropriate to try to resolve those doubts on this appeal where it is not necessary for the resolution of the appeal to do so. They are, however, matters which it would be desirable for the Civil Procedure Rule Committee to consider.”[30]The facts of Invanchev do not assist with the index case, as the Claimant had been trying to serve at a property at which, it transpired, the Defendant had not lived. A subsequent attempt at service at a different address was not sufficient because the Claimant had no evidence to show which apartment within a block had been served. The process server had spoken with a security guard at the block who had said the Defendant lived in the block but had declined to supply the number. The security guard had said he would deliver the documents to the Defendant but there was no evidence from the guard as to which apartment was served. The Claimant could not therefore establish service at the “usual residence”.[31]From the Second Defendant’s original Skeleton Argument in the index case, the question was whether the First Defendant had been properly served at his “usual or last known residence”. The Second Defendant naturally relied heavily on Boettcher and the need for the Claimant to establish a “good arguable case” that she believed the address was the First Defendant’s last known residence. As discussed above, the Claimant in Boettcher had undertaken a number of enquiries and was held to have established a “good arguable case” that the address was the Defendant’s last known residence so far as the Claimant was aware or ought to have been aware by the exercise of reasonable diligence. The Second Defendant’s fundamental point was that the Claimant in the index case could not satisfy that requirement as she had made no checks at all prior to service, and had left service to the 11th hour. There had been warnings, such as in the Supreme Court decision in Barton v Wright Hassall LLP [2018] 1 WLR 1119 about people who leave service to the last moment courting disaster. The Second Defendant was understandably concerned that, if reasonable diligence were not required, there was no incentive to take any actions to check whether an address was an appropriate address for service and a Claimant could effectively close his eyes and ears, and, if later challenged, say that he had no reason to believe the address was one at which the Defendant no longer resided. A Defendant might move multiple times and could be forced to rely on the happenstance of a piece of information reaching the serving party as to his whereabouts prior to service to trigger r6.9 (3), with no action required whatsoever to ensure proceedings were correctly served. He submitted that this could not be correct or what the Civil Procedure Rules intended.[32]Counsel for the Second Defendant did not specifically challenge the commentary in the White Book (set out above), and accepted that if the Claimant did not have a reason to believe that the First Defendant’s address had changed, then Marshall v Maggs had to be approached with some caution. However, he submitted that whilst the duty to take reasonable steps to ascertain an address only arose where a Claimant had reason to believe that the Defendant no longer resided at the old address, it was still incumbent upon the Claimant to demonstrate that she had exercised reasonable diligence in ascertaining what she believed to be the usual or last known address of the First Defendant. I had some difficulty in appreciating the difference between reasonable diligence and reasonable steps. Counsel submitted that you should make reasonable enquiries to see if the Defendant (still) lived at the address, and if those enquiries showed that the Defendant did not live there, the Claimant should then take reasonable steps to ascertain his new address.[33]It seems to me that the starting point must be the terms of Rule 6.9. Under the Rule, a Claimant must serve a Defendant at his usual or last known residence. There is no mention within the Rule of any requirement to exercise reasonable diligence in checking whether an address remains the usual or last known address. It is purely when a Claimant “has reason to believe” that a Defendant no longer resides at the intended address for service that specific requirements come into play as to what the Claimant must do. It seems to me that it would be rather strange to have some unmentioned, but implied, obligation to take steps to check whether someone was still at an address, when, within the same Rule, an amendment had been made giving specific, express steps to follow to try to ascertain a new address when, but only when, a Claimant had “reason to believe” that the Defendant had left the old address. It would have been very straightforward when making that amendment to add in that before serving at the usual or last known address, a Claimant was required to exercise reasonable diligence to first check whether the address was still current, but that was not done.[34]The interpretation of the Rule so as to include the implied obligation does, in my view, require some rewriting of the Rule when the Rule does not require any such rewriting to make it workable. The Court of Appeal in Marshall v Maggs did frown on rewriting the Rules. I accept Counsel for the Claimant’s submission that, if there were that implied obligation, the express permission within Rule 6.9 (2) to serve at the last known address would be rendered substantially otiose because the reasonable diligence steps would be required regardless and thus a Claimant would have to make enquiries and would know whether the Defendant was still at the address, and, if they were not, the requirements of (3) would activate. The implication of reasonable diligence might well lead to arguments about how recent any such checks might need to be in order to count as “reasonable diligence”, or whether they were sufficiently extensive. That would make the service procedure more costly and less certain, when the Court of Appeal in Smith v Hughes considered that the Rule requiring service at the usual or last known residence was intended to provide a clear and straightforward mechanism for service where the two conditions precedent (a Defendant having no solicitors to accept service and not having given an address for service) were satisfied.[35]It is notable that in Smith v Hughes, service at the last known address was held to be valid by the Court of Appeal, even though the Claimant had known the Defendant had not been at that address for around 2 years and had not apparently made any enquiries as to any more recent address. In the index case, the Claimant did not know the Defendant was not there. If the Court of Appeal thought that service was good where a Claimant knew the Defendant was not there but made no enquiries, it is not immediately clear why it would be thought service was not good where the Claimant did not know the Defendant was not there and made no enquiries. The level of criticism that might be made of the Claimant’s actions (or inactions) appears higher in Smith v Hughes than in the index case, yet service was still good in Smith v Hughes. The amendment to the Rule showed that it was considered that more steps should be required when a Claimant did know a Defendant was not there. Although the Court had flagged up some obiter points about reasonable diligence, the Rules Committee did not see fit to alter the wording of the Rule about usual or last known residence, and did not require a Claimant to exercise reasonable diligence before serving at the usual or last known residence, or to take any steps regarding the address, unless the Claimant had “reason to believe” the Defendant was not at the address.[36]Like the District Judge, I have carefully considered the obiter views of the Court of Appeal in Smith v Hughes and Marshall v Maggs, together with the obiter comments in Boettcher, but I have come to a different conclusion from the District Judge on what is required for service to be effective. It seems to me that the change in Rule 6.9 after the two Court of Appeal cases is a matter of considerable importance (both as to what the amendment did and did not do) and its impact on the applicability of the obiter comments in Smith v Hughes and Marshall v Maggs cannot then be overlooked. In Boettcher, the comments were again obiter and there was no discussion of the effect of the Rule change, or the potential distinction between a knowing and an unknowing Claimant. I prefer Counsel for the Claimant’s submissions to those of Counsel for the Second Defendant and I place reliance on the commentary in the White Book. It therefore follows that I consider that the District Judge, despite her careful thought, was wrong in law. I accept that this view of the law could mean that, as the Second Defendant worried, a Claimant would have no incentive to check whether someone was still at an address, and they might prefer to close their eyes and ears and say later, if challenged, that they had no reason to believe that the Defendant was no longer there. However, it seems to me, on the wording of the Rule, that if a Claimant can properly say they had no reason to believe the Defendant was no longer there, then the Claimant is perfectly entitled to rely on that stance, as that is what the Rule permits. If something more is indeed required for good service, then it seems to me that the Rule would need further amendment. In summary, I grant the appeal and hold that the service on the First Defendant at the Robin Close address was good service.