Alexander Jeffrey v Michael Teevan [2025] EWCC 24

[2025] EWCC 24Claim No G00UB349
IN THE COUNTY COURT AT CENTRAL LONDON
Thomas More Building
Venue Royal Courts of Justice StrandDate 9 May 2025
London WC2A 2LL
Before
HIS HONOUR JUDGE MONTY KC
Between
ALEXANDER JEFFREYClaimant/AppellantMICHAEL TEEVANDefendant/Respondent
Mr Toby Vanhegan (instructed by MTG Solicitors) for Claimant/AppellantMs Katie Gray (instructed by Armstrong & Co) for Defendant/RespondentHearing Hearing date: 24 April 2025 with further written submissions on 29 April and 1 May 2025
Approved Judgment

HHJ Monty KC:

[1]This appeal raises issues in relation to service and the operation of CPR 6.9. Like most service cases, it turns on its particular facts, but unlike most service cases, it has a twist in the tale.[2]On 2 October 2023, following a contested hearing at which both sides were represented, Deputy District Judge Lawrence set aside a judgment and a default costs certificate which the Appellant Mr Jeffrey, who is the Claimant, had obtained against the First Defendant, Mr Teevan, who is the Respondent to this appeal. The basis of that decision was that the claim form and other documents had not been served on the First Defendant. With permission to appeal granted by HHJ Gerald, Mr Jeffrey has appealed that decision.[3]At the hearing of this appeal, Mr Vanhegan appeared for Mr Jeffrey, and Ms Gray for Mr Teevan.[4]On or around 7 February 2020, Mr Jeffrey says he was granted an assured shorthold tenancy of a ground floor room at 26 Windmill Hill, Ruislip HA4 8QE. That property belongs to Mr Teevan.[5]Mr Jeffrey says that in June 2020 he was unlawfully evicted.[6]Mr Jeffrey issued proceedings on either 1 or 6 July 2020 (Mr Vanhegan suggested it was 1 July, but I rather think it was 6 July; there was no copy of the issued claim form before the court, but the first entry on the court’s case management system is 6 July, which accords with the date for commencement of proceedings referred to in the evidence of the Claimant’s solicitor Mr Gill, first witness statement, paragraph 7). The claim form named three defendants, the first of whom was Mr Teevan and the third of whom was Reel Estates Ltd, a property management company. On 7 July 2020, Mr Jeffrey obtained what seems to have been a without notice injunction against all three defendants requiring a key to the property to be given to his solicitors. The injunction order provided that Mr Jeffrey be permitted to serve the order on Mr Teevan by SMS or WhatsApp.[7]The matter was listed for a return hearing on 22 July 2020 and a Notice of Hearing was sent out.[8]At that hearing, Mr Jeffrey was represented by counsel, the Second Defendant Mr Hurst appeared in person, and Mr Clifford, the director of the Third Defendant, represented Reel Estates.[9]The order of 22 July 2020 recited that service had been effected on Mr Teevan by letter dated 7 July 2020, and went on to direct that Mr Teevan had until 12 August 2020 to file and serve a Defence and Counterclaim. The claim was allocated to the fast track and re-listed for a case management conference on the first open date after 9 September 2020. Finally, at paragraph 12 of the order, it was provided as follows:
“In relation to service on the 1st Defendant, the Court deems service at the Demised Premises as good service: it being the correspondence address recorded for the 1st Defendant with the Land Registry in respect of the Registered Title of the Property (Title Number MX71324). Further, should any other method of service become available to the Claimant in respect of the 1st Defendant, he has permission to serve all documents forthwith by that alternative means.”
[10]In the context of this claim and this appeal, the order of 22 July 2020 has considerable significance, as I shall go on to set out. For the moment, I note that the order of 22 July 2020 (which was made at a hearing attended by counsel for the Claimant) was not drawn to the attention of the Deputy District Judge at the hearing on 2 October 2023, nor was it drawn to my attention at the hearing of the appeal, and it was not in the appeal bundle. I discovered it, on the court’s case management system, when writing this judgment as I was putting together a chronology of the proceedings by references to the orders made (which are not in one place in the appeal bundle as they should have been, hence my resort to the case management system). When I found the order, I sent a copy of it to Mr Vanhegan and Ms Gray and invited their comments. I also sent them a copy of the decision of Bryan J in Agrofirma Oniks LLC v ABH Ukraine Limited and others [2025] EWHC 300 (Comm), a recent case on “usual residence” and service which had not been cited to me at the appeal but which I mentioned to the parties and asked for written submissions on that at the same time. I have received those submissions and have taken them into account.[11]The court sent out a Notice of Trial Date on 23 December 2020, for a trial on 18 February 2021, and on 31 December 2020 it also sent a Notice of Case Management Conference to take place on 22 January 2021.[12]On 22 January 2021, District Judge Jordan entered judgment against Mr Teevan for damages to be assessed. No copy of this order is in the appeal bundle, and the order on the court’s case management system simply refers to “Please find enclosed sealed order”. I have not had an explanation as to why this order is not in the appeal bundle.[13]On 24 February 2021 a second Notice of Trial date was sent out, this time for a trial on 10 June 2021.[14]District Judge Jordan made an order on 10 June 2021, but again there was no copy of this order on the court’s case management system, which simply refers to “Approved Court Order attached”. The order was in the appeal bundle (although incorrectly referred to as the order of 22 January 2021), and (amongst other things) it extended time for the Second Defendant to file a Defence and struck out the Third Defendant’s Counterclaim.[15]On 8 December 2021, District Judge Ahmed made a further order, striking out the claim against the Second and Third Defendants (the order recited that “the Claimant not wishing to proceed with his claim against the 2nd Defendant and the 3rd Defendant”), and assessing damages against Mr Teevan in the sum of £25,680 to be paid by 23 December 2021, together with costs to be assessed if not agreed. Mr Jeffrey has never been able to get back into the property.[16]On 21 February 2022, Mr Jeffrey’s solicitors issued a Notice of Commencement of assessment of their bill of costs against Mr Teevan. No points of dispute having been served, the court issued a Default Costs Certificate on 14 October 2022 against Mr Teevan in the sum of £45,428.92.[17]On 25 July 2023, Mr Teevan made an application to set aside the judgment and the default costs certificate on the basis that he had not been served. His witness statement in support of the application said that he had no prior knowledge of these proceedings until he was sent a letter by Mr Jeffrey’s solicitors on 29 June 2023, which he received the next day, enclosing copies of the orders of 8 December 2021 and the Default Costs Certificate of 14 October 2022. That letter was sent to him at his home address, which is 22 Park View Road, London W5. He said that since receiving that letter, he went to Reel Estates’ offices “but this now appears to be permanently closed. In all my dealings with them they never once mentioned these proceedings to me.” In his second witness statement in support of the application, he said that he lives at 22 Park View Road, and 26 Windmill Hill is one of several rental properties owned by him. He noted that all correspondence apart from the letter of 29 June 2023 appeared to have been sent to him at 26 Windmill Hill. He said he has lived at 22 Park View Road since purchasing it in April 2000 and has since then been registered for Council Tax there and it is his address on the Electoral Roll.[18]In his second statement, Mr Teevan responded to a witness statement served on behalf of Mr Jeffrey, that of Mr Peter Clifford. Mr Clifford is a director of Reel Estates, which had been the Third Defendant to the claim. In his statement Mr Clifford said that the contents of Mr Teevan’s first statement “was completely false”, that “both the First Defendant and his son Damien were fully aware of the court proceedings”, and that Mr Teevan “would attend [26 Windmill Hill] to collect utility bills. He would no doubt have collected court papers pertaining to this matter at the same time.” Mr Clifford also said, “the first Defendant chose not to attend Court hearings which he knew about. … I was very surprised that the first Defendant did not attend the Trial even after being made aware of the hearings. I had spoken on the phone to the first Defendant about this matter as well as the Trial. It is beyond belief that he would now concoct a story denying ever knowing about the litigation.” Mr Clifford said, “I can say without any doubt that [the] first Defendant is lying in his witness statement.”[19]In response to that, Mr Teevan said that he has had no dealings with Mr Clifford since 2014, and “I categorically deny the entirety of the witness statement of Mr Clifford. … Neither Mr Clifford nor any of his staff at Reel Estates made any efforts to advise me of these proceedings.” Mr Teevan also said that he did not collect post from 26 Windmill Hill. He said that he bought 26 Windmill Hill in 2014 to rent it out, and he has never lived there. Reel Estates managed the property, and he had no dealings with Reel Estates since then (I note that none of the correspondence from Reel Estates in the bundle is addressed to Mr Teevan; it is addressed to his son, Damien). Again, he denied having any conversations with Mr Clifford about the proceedings (“I have not spoken to him, nor have I ever met him.”). He said that he took the management of his properties away from Reel Estates in July 2021 and now uses new agents.[20]I now turn to what was said in the first witness statement of Mr Gill, Mr Jeffrey’s solicitor, dated 8 September 2023, produced in opposition to Mr Teevan’s application to set aside the judgment and default costs certificate. The starting point (although not referred to expressly in the statement) is that the address given for Mr Teevan in the claim form is that of the Property, 26 Windmill Hill.(1) The injunction order was served by the court (which would have been by post) at 26 Windmill Hill.(2) Mr Gill’s firm also served a copy of the injunction order, the claim form, the particulars of claim, the application for the injunction and notice of issue on Mr Teevan by post on 7 July 2020 to 26 Windmill Hill. I note that the injunction order permitted service on Mr Teevan by SMS or WhatsApp but neither method was deployed.(3) The order of 22 January 2021 was served by the court at 26 Windmill Hill.(4) On 24 May 2021, Mr Gill engaged John Law Investigations to find an alternative address for Mr Teevan, “however the report was inconclusive”. The report was not one of the many annexes to Mr Gill’s statement, nor were the instructions to the investigation agents.(5) The order of 8 December 2021 would have been sent by the court to 26 Windmill Hill.(6) The Notice of Commencement was sent to 26 Windmill Hill.(7) The court would have sent the Default Costs Certificate to 26 Windmill Hill. It was also sent by email to d.teevan@aol.com “which is the email address the 3rd Defendant used to correspond with the 1st Defendant.” That seems to be wrong. That is the email address for Mr Damien Teevan, Mr Teevan’s son.(8) On 13 April 2023 Mr Gill emailed Reel Estates seeking confirmation of Mr Teevan’s residential address. There was no response.(9) “On 21 June 2023, the Claimant’s solicitor, armed with new information which recently came to their attention, once again engaged the services of Bill Stevens at John Law Investigations. This time, the 1st Defendant was linked to the Park View Road property.” There is no indication of what that new information was, or why it was only obtained in June 2023, or what prompted it. The instructions to the agents, and their report, are not exhibited.[21]That was the evidence before District Judge Lawrence at the hearing on 2 October 2023. At the appeal hearing, I refused to read or take into account the second and third statements of Mr Gill which post-dated the hearing below. There was no reason put forward for the appeal court to accept new evidence which plainly could have been before the court below. I would however observe that in preparing this judgment I have read those statements and there is no mention in either of them of the 22 July 2020 order (although they do fill in some of the gaps in Mr Gill’s first statement in relation to the investigation agents).[22]I have been provided with the transcript of the hearing and of the judgment given on 2 October 2023. I have read the transcript carefully more than once. It is important to remember that no-one referred to the 22 July 2020 order at the hearing.[23]The judgment is short. I will set it out in full. “1. This is an application, whilst one can argue that it could have been made clearer than it was, the point on usual last known address, the fact of the matter is that both parties were represented by lawyers and the claimant’s solicitors should have realised that when the defendant was basing his application on the fact that he was not aware of the proceedings, then service of the proceedings was clearly an issue, and on that point the first thing the claimant would have to do was show that he served the proceedings properly, and if that were the case then the knowledge of the defendant may have been an issue, and that would have been a matter of discretion on the court’s part, whether or not (1) to decide that the defendant had no knowledge, and therefore that he ought to be given a chance to defend the matter. 2. It is clear to me that these proceedings were not served properly upon the first defendant at his usual last known residence. 3. The legal position is set out clearly in the skeleton argument and the cases relied upon there are clear about this. 4. The request for an adjournment at this last moment, this application has been known about for some weeks, there is no evidence before me as to why the solicitors, the claimant’s solicitors, could not have dealt with this matter when they at least received the second witness statement which made the position crystal clear about good service or not. I am told today that this is because the solicitor involved is ill, but nothing is said about the firm dealing with the matter, or why or what the illness is, and why the matter cannot be dealt with. The fact of the matter is they have produced no evidence that there was good service of these proceedings on the first defendant’s usual last known residence. Their own statements state that the first defendant was not residing at the property and they were aware of this, which suggests it could not have been their last known. But, anyway, there we are. 5. So on that basis the judgment is set aside.”[24]The reference to an adjournment request in paragraph 4 of the judgment is to an informal application to adjourn the hearing which Mr Jeffrey’s then counsel Mr Hassanally made in order to put in evidence in response to the second statement of Mr Teevan. The Deputy District Judge refused that application on the basis that it must have been clear that the issue was service. The refusal to adjourn was one of the grounds of appeal but it was abandoned at the hearing.[25]Mr Jeffrey appealed the decision. There are 5 grounds of appeal. First, that the judge as wrong in holding that 26 Windmill Hill was not Mr Teevan’s residence when it was untenanted. Secondly, that all Mr Jeffrey had to do for the purposes of CPR 6.9 was to search the proprietorship register for 26 Windmill Hill and that constituted “reasonable steps” under the Rule. Thirdly, the application to adjourn was wrongly refused (as I have just noted, this ground of appeal was not pursued before me). Fourthly, the decision whether or not to set aside the judgment and the default costs certificate involved the exercise of a discretion, which the judge failed to do. Fifthly, that the judge dealt with the evidence in a way that was procedurally unfair, in that he accepted Mr Teevan’s evidence and denied Mr Jeffrey the opportunity to challenge it by cross-examination.[26]I will now set out the procedural framework.[27]CPR 7.5 requires a claim form to be served within 4 months of its date of issue by a method set out in the table at CPR 7.5(1).[28]CPR 6.9 provides that the claim form must be served on the defendant in accordance with the table set out at CPR 6.9(2). As the First Defendant is an individual, the place of service is required to be his “Usual or last known residence”: entry 1 in the table.[29]CPR 6.9 goes on to provide as follows:
“(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.

(b) ”

[30]Mr Jeffrey did not have details of Mr Teevan’s usual or last known residence. The address given for him in the claim form – and to which all documents in relation to this claim have been sent by the court and by Mr Gill’s firm – is 26 Windmill Hill, the Property where Mr Jeffrey says he had a tenancy. At paragraph 3 of the Particulars of Claim it was said: “At all material times …. the 1st Defendant did not reside at the Property [26 Windmill Hill]”.[31]Thus, Mr Jeffrey was required to follow the steps set out at CPR 6.9(3)-(5).[32]The only step which Mr Jeffrey’s solicitors took at the time of issuing the proceedings to ascertain Mr Teevan’s current residence was to search the proprietorship register for 26 Windmill Hill, on which Mr Teevan was named as the proprietor with the 26 Windmill Hill address.[33]I cannot see how this can amount to taking reasonable steps as the solicitors knew Mr Teevan was not living there. The steps must be purposive and in my view one needs to look at the step taken and the result thereof. The intention is to “to ascertain the address of the defendant’s current residence” and as the solicitors knew he was not living at 26 Windmill Hill, which address was revealed by the search, I have no doubt that they were required to do something more than just that search, which on its own was not a reasonable step to ascertain his present address. In May 2021, some 10 months after proceedings were issued, the solicitors engaged a firm of investigators. It is not clear why they did that then, nor why they did not do it in July 2020. In Agrofirma, the claimant did far more, including considering instructing an investigation agent. In my judgment, searching the proprietorship register alone did not satisfy the requirement to take reasonable steps in CPR 6.9(3).[34]CPR 6.9(4) sets out what a claimant must do once he has taken the reasonable steps required by 6.9(3). Even if I am wrong, and the solicitors’ search of the proprietorship register for 26 Windmill Hill amounted to reasonable steps, the result of that search was that they were unable to ascertain Mr Teevan’s current address, and therefore CPR 6.9(4)(b) applied. The claimant had to consider whether there was an alternative place or method by which service might be effected.[35]Of critical importance to this appeal, and to the hearing below, is that the order of 22 July 2020 was not brought to the attention of the court. I have set out the relevant part of that order at paragraph 9 above, which provided for deemed service at 26 Windmill Hill. This appeal proceeded in ignorance of that order, and as appears from the transcript, so did the hearing below. The order made provision for deemed service on Mr Teevan at 26 Windmill Hill.[36]For the moment I will ignore the order of 22 July 2020, as this was the basis on which the appeal was argued before me.[37]I have no doubt that the solicitors failed to consider whether there was an alternative place or method by which service might be effected. There is no evidence that they did so. Had they done so, they would probably have concluded that service might be effected by email to Damien Teevan, or on Reel Estates, and that would have led to an application for service by an alternative method or at an alternative place under CPR 6.15, which is what CPR 6.9(5) mandates. As matters turned out, an application under CPR 6.15 was eventually made, but not until 20 October 2023, when Mr Jeffrey applied to serve the proceedings out of time under CPR 7.6 or alternatively to dispense with service under CPR 6.16 and/or that that there had been valid service under CPR 6.15. For reasons I cannot understand in the context of this case and the appeal, an order was made giving permission to serve out of time without a hearing by Deputy District Judge Emanuel on 25 October 2023 (there was no order on the other aspects of the application) and that order is currently the subject of an application dated 3 November 2023 to set it aside, which is presently awaiting a hearing date before a District Judge.[38]CPR 6.9(6) applies where the claimant both cannot ascertain the defendant’s current residence and also cannot ascertain an alternative place or method of service. In such circumstances, service on the usual or last known address is permitted. The problem in the present case is that the claimant’s solicitors did not comply with CPR 6.9(3) and even if they did then they did not comply with CPR 6.9(4)-(5).[39]It was contended before the judge below and on the appeal that a defendant can have more than one usual residence at any one time, which is plainly correct – see for example Relfo Ltd (In Liquidation) v Varsani [2010] EWCA Civ 560 as summarised in Maloobhoy v Kanani [2012] EWHC 1670 (Comm), by Stephen Males QC (as he then was) at [51] to [56]. That does not avail Mr Jeffrey in the present case, because of the actual steps taken, and the failures to comply with CPR 6.9 as set out above. It was clearly possible to instruct investigation agents much earlier than in fact happened.[40]Where there has not been good service under CPR 6.9, the court must consider whether in all the circumstances setting aside the judgment and the default costs certificate would be the right[41]As Mr Vanhegan submitted, the problem with the judgment below is that the Deputy District Judge seems to have got the point the wrong way round. At paragraph 1 of the judgment, he said:
“…the first thing the claimant would have to do was show that he served the proceedings properly, and if that were the case then the knowledge of the defendant may have been an issue, and that would have been a matter of discretion on the court’s part, whether or not (1) to decide that the defendant had no knowledge, and therefore that he ought to be given a chance to defend the matter.”
[42]With great respect to this very experienced Deputy District Judge, the discretion does not arise where the claim was properly served, but where it was not properly served, as set out in Nelson.[43]At the appeal hearing, Mr Vanhegan said that Mr Teevan was clearly not telling the truth, because of what Mr Clifford said in his statement, and that it should have been – and should now be – tested at a hearing with cross-examination. He said that the Deputy District Judge fell into error in not so ordering, and in apparently accepting Mr Teevan’s evidence that he had no knowledge of the proceedings. In fact, as is clear from the judgment below, what the Deputy District Judge did was to say that knowledge was irrelevant. He made no findings about knowledge at all. Mr Vanhegan also said that it would be quite wrong, and prejudicial to the claimant, to deprive Mr Jeffrey of a regularly obtained judgment where Mr Teevan was not being truthful.[44]I have given careful thought to how to deal with this factual dispute over whether Mr Teevan ever lived at 26 Windmill Hill, whether he has been accurate in his evidence about when he bought 22 Park View Road, or which of Mr Teevan or Mr Clifford is telling the truth. I am certain that these matters are not suitable for determination at some sort of mini-trial with cross-examination. The court should make an assessment of the evidence as it is. In Dr Marcus Boettcher v XIO (UK) LLP (In Liquidation) & Ors [2023] EWHC 801 (Comm) at [41] it was said (in relation to whether service within the jurisdiction was valid):
“(1) The claimant must supply a plausible evidential basis for his or her position. (2) If there is a dispute of fact about or some other reason for doubting the claimant’s position, the Court must take a view on the material available if it can reliably do so. (3) However, if the nature of the issue and limitations of an interlocutory application are such that no reliable assessment can be made, the good arguable case threshold is met by the plausible evidential basis even if it is contested. In this respect, where evidence is provided at an interlocutory hearing in the form of witness statements, such evidence generally should not be disbelieved unless it is incontrovertibly or manifestly wrong (Kireeva v Bedzhamov [2022] EWCA Civ 35; [2022] 3 WLR 1253, para. 34). Where, therefore, there is conflicting evidence provided by different witnesses, either that evidence is to be reconciled or, if it cannot be reconciled, the claimant’s evidence is to be accepted for the purposes of the determination to be made at the interlocutory hearing, assuming it is plausible.”
[45]Courts are perfectly used to doing this at interlocutory hearings without the need for a mini-trial. Summary judgment is a good example. In the context of a dispute over whether or not a defendant was aware of proceedings, it seems to me the position is the same.[46]Even if Mr Clifford is right – and Mr Teevan is wrong – in saying that he told Mr Teevan about these proceedings, mere knowledge of the proceedings is not enough where the issue is service. I do not see why a party should not say, “I know about the claim, and I know about the hearings, but I do not intend to participate because I have not been served.” It might well be a risky strategy to do that, but the principal issue here is service not knowledge. In a case where a claimant has failed to follow the procedure in CPR 6.9, and has obtained a judgment for damages and for costs, in my view the prejudice to the defendant if the judgment is not set aside outweighs that to the claimant if it is, as explained in Nelson at [50], in the passage I have set out above.[47]Further, I have to say that I am not persuaded that I should simply prefer Mr Clifford’s evidence over that of Mr Teevan where Reel Estates’ services were dispensed with by Mr Teevan over the “letting” to Mr Jeffrey. I also regard Mr Clifford’s comments about Mr Teevan collecting post from 26 Windmill Hill as conjecture. I have of course taken into account what was said in the Dr Marcus Boettcher case, but here I do not regard Mr Clifford’s evidence as plausible. In any event, his evidence is just part of the circumstances I take into account; in my view of far more importance is the Claimant’s failure to comply with CPR 6.9. As I have already said, such a litigant is not particularly deserving of an exercise of discretion in their favour. That is not of course a criticism of Mr Jeffrey personally.[48]Finally on this point, it seems to me that as the principal issue is service not knowledge, the evidence of Mr Teevan is persuasive. In summary, it is that he has lived at 22 Park View Road since 2000 and has never lived at 26 Windmill Hill.[49]I have therefore concluded that although the Deputy District Judge did not consider that he had a discretion to exercise, he nonetheless came to the right conclusion in acceding to Mr Teevan’s application. In my judgment, the Claimant did not provide any plausible basis for serving at 26 Windmill Hill, and did not follow the requirements of CPR 6.9. I could formally allow the appeal and exercise the discretion myself, but that would have the same result, as in my view the balance is firmly in favour of the Defendant. Thus far, and ignoring for the moment the order of 22 July 2020, it seems it would have been pointless for me to do anything other than dismiss the appeal.[50]Looking at each ground of appeal in turn: Ground one: the judge as wrong in holding that 26 Windmill Hill was not Mr Teevan’s residence when it was untenanted. I cannot see anything in this ground. How could 26 Windmill Hill be Mr Teevan’s residence when the claimant knew that it was not, and expressly pleaded that it was not, simply because it was no longer let to Mr Jeffrey? Further, this ground has no traction in circumstances where CPR 6.9 was not followed and where Mr Teevan’s evidence on this was persuasive. Ground two: all Mr Jeffrey had to do for the purposes of CPR 6.9 was to search the proprietorship register for 26 Windmill Hill and that constituted “reasonable steps” under the Rule. I have already explained why there is nothing in this ground of appeal. The solicitors did not take reasonable steps within CPR 6.9(3), but even if they did, they did not go on to follow the rest of CPR 6.9. Ground three: the application to adjourn was wrongly refused. Mr Vanhegan did not pursue this ground of appeal. Grounds 4 and 5: the decision whether or not to set aside the judgment and the default costs certificate involved the exercise of a discretion, which the judge failed to do; and that the judge dealt with the evidence in a way that was procedurally unfair. I can take these grounds together. I accept that the Deputy District Judge did not purport to exercise a discretion, but for the reasons I have set out above, these grounds go nowhere, as the decision to set aside the judgment and the default costs certificate was plainly the right one.[51]For these reasons, the appeal as it was argued before me would fall to be dismissed.[52]But unfortunately, that is not the end of it. And here comes the twist (although there have already been a number of “spoilers” earlier in this judgment).[53]As I have explained, I have proceeded on the basis – as was argued before me, and below – that there was nothing else which might have affected the decision or the appeal.[54]As we know now, however, the order of 22 July 2020 made provision for deemed service on Mr Teevan.[55]Mr Vanhegan now submits (in his written submissions following the hearing) that because of the 22 July 2020 order, the appeal should be allowed. First, because the order under appeal is inconsistent with the 22 July 2020 order and was made on the basis that the proceedings were not properly served, whereas in fact there was a deemed service order. Secondly, the order under appeal was made without taking into account the 22 July 2020 order. Thirdly, the 22 July 2020 order has not been appealed or challenged in any way, and this court has no jurisdiction to do anything about it; the only way to cure all of this is to set aside the order of 2 October 2023.[56]I strongly disagree with all of those submissions. Yes, the two orders are inconsistent, but the fact is that the 22 July 2020 order was not drawn to the attention of the court below, and it was not drawn to my attention either. Had that been drawn to the attention of the court below, the focus would have been on whether Mr Teevan could apply to set aside or vary that order. Arguing the appeal on the basis that it was – that there had been no order for deemed service, and that the only issue was CPR 6.9 – seems to me to have been a complete waste of court time and costs. To have failed to draw the 22 July 2020 order to the attention of the court below and to me, and then to use it as if it were a trump card mandating that the appeal should be allowed, is in my view unacceptable.[57]Further, the order was not known about by Mr Teevan; I am as certain as I can be that had his legal advisers known about it, things would have taken a different course.[58]Ms Gray says that had the 22 July 2020 order been before the court below and on appeal, Mr Teevan’s case would have been put differently, and I agree with that submission. Ms Gray says that the order of 22 July 2020 is not relevant to any of the grounds of appeal. Again, I agree with that in so far as it goes, but it seems to me that now the existence of the 22 July 2020 order is known about, I must do something about it or the parties will be in an ever circling loop of interlocutory hearings.[59]I do not accept that the only way forward is to allow the appeal nor that this court lacks jurisdiction to do anything. One possibility would be to permit Mr Teevan to apply to set aside or vary the 22 July 2020 order out of time (as he did not know about it). What should have happened is that when Mr Teevan made his application, the Claimant ought to have responded with a copy of the 22 July 2020 order, and had that happened I feel certain Mr Teevan would have applied to set it aside. But to do that now strikes me as a waste of time and money when the parties really ought to be concentrating on the issues raised by the claim rather than spending their energies on contesting further technicalities.[60]I can see no merit in the suggestion that I should now allow the appeal because of the 22 July 2020 order. That was not the basis of the application below, nor of this appeal. It would require a completely new hearing.[61]All of this seems to me to be the fault of the Claimant or rather his solicitors. I cannot conceive of why they did not draw the 22 July 2020 order to the attention of Mr Teevan or more importantly to the court below or to me at the appeal hearing and why they have not (even now) produced a note of the hearing which led to that order. There is not even a hint of acceptance of fault on the part of those instructing him in Mr Vanhegan’s further written submissions; I find that hard to fathom.[62]It seems to me that in the circumstances the only sensible and right course is to set aside that part of the 22 July 2020 order about deemed service, dismiss the appeal, and confirm the setting aside of the judgment and the default costs certificate. I will also consider – subject to further submissions – taking the following steps, namely(a) setting aside the order of Deputy District Judge Emanuel of 25 October 2023;(b) regularising matters by dispensing with service of all documents (save for the default costs certificate, which will remain set aside);(c) extending time for a Defence; and(d) either giving directions through to a trial or directing that there should be a further case management conference. I am certain that sending any of this back to a District Judge for reconsideration of service issues would be contrary to the overriding objective.[63]Following the circulation of this judgment in draft, I received written submissions from both sides as to the form of the order I should make, and in relation to costs.[64]Both sides agree that – save for costs – a line should now be drawn under all the service issues. It is agreed that the appeal should be dismissed, and that the order of 25 October 2023 should be set aside. Mr Vanhegan suggests that the application to set aside the order of 25 October 2023 should be dismissed, but I do not intend to make that part of my order, as I am setting aside that order. As to service of all documents (save for the default costs certificate), Mr Vanhegan suggests that they should be deemed served, whereas Ms Gray suggests dispensing with service; in my view, the latter is the better option. Ms Gray wants the case transferred to the County Court at Central London and Mr Vanhegan wants it assigned to the multi-track; I will do both of those things, but I will not transfer it to the Business & Property List (as Ms Gray suggests) as this case is not appropriate for that List. I am not going to give permission for an Amended Claim Form or Amended Particulars of Claim without seeing the amendments first; as the Claimant wants to amend, there will have to be an application. I will adopt the timetable which Ms Gray proposes regarding amendments and the service of a Defence. I will also make the directions sought by Mr Vanhegan which will take this matter towards a 2-day trial but I will not dispense with a pre-trial review, which I think will be required.[65]As to costs, it is accepted that the Appellant must pay the costs of the appeal. I see no reason why the assessment of the appeal costs should await the trial, although because the Appellant is publicly funded there will need to be the standard direction as to that costs order. The costs of the appeal are set out in the Respondent’s N260 and come to £11,942 inclusive of applicable VAT.[66]Mr Vanhegan resists the application for those to be assessed on the indemnity basis. The test as to whether costs should be on the standard or indemnity basis is that set out in Excelsior Commercial Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879. For the court to order costs on the indemnity basis, there must be some circumstances which take the case out of the norm.[67]I have no doubt that this is an appropriate case for costs to be assessed on the indemnity basis. As Ms Gray observes, the failure to disclose the order of 22 July 2020 was unacceptable and has been the cause of this appeal which as I have said was a complete waste of time. This was plainly conduct out of the norm.[68]I will therefore assess the Respondent’s costs in the sum claimed.[69]The costs of the hearing below were assessed at £4,695 and those should also be paid by the Appellant.[70]On 2 October 2023, the Deputy District Judge also directed that the Appellant’s solicitors should file and serve a statement as to why those costs should not be paid by them as wasted costs, and Mr Gill duly filed a statement.[71]Ms Gray says that I should also take a similar approach to the costs of the appeal, whereas Mr Vanhegan says that there needs to be a formal application for wasted costs which should be dealt with at trial.[72]In my view the better course would be to make a similar order to that made on 2 October 2023, and for the question of whether there should be a wasted costs order of both hearings (2 October 2023 and the appeal) should be dealt with separately. I am satisfied that there is material before the court which if unanswered would be likely to lead to a wasted costs order being made, namely the unexplained failure to disclose the order of 22 July 2020 at any point, and that wasted costs proceedings are justified notwithstanding the likely costs involved: CPR PD46 para 5.7(a). There will therefore be a “stage two” hearing at which the court will decide whether to make a wasted costs[73]Ms Gray suggests I should order that the Appellant should bear his own costs of the claim incurred at any time up to and including the disposal of this appeal in any event. It seems to me that the trial judge will be in the best position to deal with that matter as I am not convinced that all of the costs incurred by the Claimant should be irrecoverable if at the end of the day the Claimant gets a costs order in his favour (for example, the costs of the issue fee and the drafting of the claim). I do not intend to say anything about this in my order. (End of judgment)

order

see Nelson v Clearsprings (Management) Ltd [2006] EWCA Civ 1252. At [50], the Court of Appeal said: “That is not to say that on an application to set aside a judgment in a case of this kind the just order will not almost always be to set aside the judgment. In a case where the proceedings have not been served on the defendant and service has not been dispensed with before judgment, a court could only properly refuse to set aside a judgment where there is no prejudice to the defendant (or, possibly, to some innocent third party who has acted to his detriment in the belief that the judgment was regularly entered). As we see it, that will ordinarily involve the claimant persuading the court that there is no prejudice to the defendant in dispensing with service and that the defendant is not otherwise prejudiced. We do not at present see how that will be possible in a case where the judgment includes a money judgment of an aggregate sum inclusive of interest and costs because of liability to interest on the aggregate sum under the Judgments Act or the County Courts Act. Nor do we see how it will be possible where the judgment ordered the defendant to pay the costs. It was to set aside the order for costs that the defendant fought White v Weston. However, each case depends upon its own facts and there may be circumstances in which it will not be appropriate to set aside the judgment, or at any rate, the whole judgment, as for instance when the defendant has delayed inexcusably in making his application to the court after learning that the judgment had been entered against him.” order: CPR PD46 para 5.7(b). I can see no point in requiring a formal application. It is clear what is alleged the solicitors failed to do. I will adopt Ms Gray’s suggested timetable.