“Pursuant toCPR 6.9 , where the defendant is a partnership, the place of service is the principal or last place of business of the partnership. The last known place of the business of WBA is as set out in the Claim Form being 20 Hartford Road, Huntington, Cambridgeshire, PE29 3QH. However, the Claimant is aware that in or around November 2018, WBA was acquired by Roythornes. Following the acquisition, it is understood that the WBA team moved to Roythornes’ offices in Alconbury at Incubator 2, The Boulevard, Enterprise Campus, Alconbury Weald, Huntingdon, PE28 4XA. Therefore, pursuant toCPR 6.9 (3), the Claimant believes that the last known place of the business of the partnership is no longer in existence and if proceedings are served on the address on the Claim Form, these will not be brought to WBA’s attention” (d) Quoting directly from Paragraph 7 within the N244 Box 10 narrative: “Pursuant toCPR 6.9 (4)(a), the Claimant has therefore served proceedings on WBA at the address for Roythornes provided at paragraph 6 above”. 9.3 However, during oral presentation at the hearing the Claimant placed little if any reliance upon the assumption and justification featured in the Claimant’s Box 10 narrative and instead relied upon the documentation as annexed instead to the Defendant’s Application. In particular, the 2021 Standstill Agreement and Protocol correspondence. 9.4 In support of the Defendant's Application, Ms Sheona Wood of DWF provides a Witness Statement dated21 December 2023 . She confirms the instructions of Mr Archer that WBA ceased trading whilst at the Huntingdon address and had never traded from any office of Roythornes. She confirms that the Claimant’s solicitors first contact with DWF to explore matters of service was on27 November 2023 and submits that, as a claim against a former partnership, pursuant to r.6.5 and 6.9, the Claimant was only entitled to serve WBA either (i) by way of personal service upon Mr Archer as one of the two original partners or (ii) at Mr Archer’s “usual or last known residence”. 9.5 Ms Wood points out that the Claimant, through his solicitors, had had by then ample opportunity to consider how and when to serve. Further, he could have ascertained Mr Archer’s current or last known address by way of a few simple steps. Mr Archer’s e-mail address, for example, was on the 2021 Standstill Agreement to which the Claimant was a party. By way of an alternative approach and for the relatively nominal cost of£115 plus VAT, to demonstrate the ease with which the Claimant or his solicitors could have traced Mr Archer at his current residential address her firm had instructed a firm of tracing agents. The tracing agents had found and provided Mr Archer’s residential address within 24 hours of instruction. Even more simply still, Ms Wood annexes an extract from the BT phonebook for Peterborough and Huntingdon 2019-20 showing Mr Archer’s residential address. She adds it also could have been obtained from 192.com at a maximum cost of£15.00 plus VAT. DWF replicated an online search on 192.com and the said information “was generated in minutes”. 9.6 In a Witness Statement directly from Mr Archer, dated22 May 2024 , Mr Archer confirms Ms Wood’s description of how he ceased sole trading as WBA on31 October 2018 and how, between October 2018 and31 May 2019 , he had worked for Roythornes as an employed consultant; initially for three days a week reducing to two and finally one during May 2019. On his understanding, Roythornes did not even purchase The Incubator address until “the later end of 2020”. 9.7 Therefore, he (i) never practised as WBA following it ceasing trading in October 2018 and (ii) had ceased to work for Roythornes approximately 18 months before The Incubator had been purchased and so he simply could never have worked there. He adds, for the avoidance of doubt, that his former WBA partner Mr Hemens had never worked at The Incubator, neither was The Incubator ever a place of business for WBA. Neither, again for the avoidance of doubt, has he or Mr Hemens ever resided at The Incubator. 9.8 The 2021 Standstill Agreement defines the parties as respectively the Claimant, Roythornes Limited “whose Head Office is Enterprise Way, Pinchebeck, Spalding, Lincolnshire, PE11 3YR” and Mr Archer “trading as Warrens Boyes & Archer”
“We understand that Warrens, Boyes and Archer Solicitors were the firm of solicitors instructed by Mr and Mrs Goodfellow in respect of the purchase of a property……We understand that Warrens, Boyes and Archer were incorporated into Roythornes and that Mr Gregory Archer is in the employ of Roythornes as a Consultant. Please provide the date and the basis upon which your firm acquired Warrens, Boyes and Archer solicitors. Until such time that we receive confirmation of the date and basis which your firm acquired WBA Solicitors, we will be pursing both your firm and WBA Solicitors in respect of the above matter”. 9.10 In a January 2022 response to pre-action correspondence from the Claimant’s solicitors, DWF wrote to confirm that they acted for Roythornes “as Successor Practice to Warrens, Boyes and Archer (“WBA”)….you should be aware that WBA has the benefit of Run-Off cover and, as such, we also act for these insurers. The details of our client’s acquisition of WBA and/or of the Run-Off cover need not concern your client”
“(3) Where a claimant has reason to believe that the address of the defendant referred to [above] 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). 10.5 The following were available methods of service to the Claimant underCPR r.6 : a. Personal service on the individuals being sued in the name of the business (CPR r.6.5 (3)). b. Where the Defendant has not given an address for service, service at the usual or last known residence of one of the individuals being sued in the name of the business (CPR 6.9 (2)). c. Where the Defendant has not given an address for service, service on the principal or last known place of business of the partnership (CPR 6.9 (2)). 10.6CPR r.6.15 , which r.6.27 extends to other documents (for example, the Particulars of Claim) provides as follows: “6.15 - (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the Claim Form to the attention of the defendant by an alternative method or at an alternative place is good service.” 10.7 The Claimant observes that the Supreme Court has had the opportunity to consider r.6.15(2) twice in recent years. (1) Abela v. Baadarani[2013] UKSC 44 , Lord Clarke, paras 35 to 38: “35 As stated above, in a case of this kind the court should simply ask itself whether, in all the circumstances of the particular case, there is a good reason to make the order sought. ... 36 The mere fact that the defendant learned of the existence and content of the Claim Form cannot, without more, constitute a good reason to make an order under rule 6.15(2). On the other hand, the wording of the rule shows that it is a critical factor. … [R]ule 6.15(2) was designed to remedy what were thought to be defects as matters stood before1 October 2008 . … [I]t may enable a claimant to escape the serious consequences that would normally ensue where there has been mis-service and, not only has the period for service of the Claim Form fixed byCPR r 7.5 run, but also the relevant limitation period has expired. 37 Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the Claim Form, is communicated to the defendant. In Olafsson v. Gissurarson (No 2)[2008] 1 WLR 2016 , para 55 I said, in a not dissimilar context, that “the whole purpose of service is to inform the defendant of the contents of the Claim Form and the nature of the claimant’s case: see eg Barclays Bank of Swaziland Ltd v. Hahn[1989] 1 WLR 506 , 509, per Lord Brightman, and the definition of ‘service’ in the glossary to the CPR, which describes it as ‘steps required to bring documents used in court proceedings to a person’s attention’ …”
“The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations.”
“9 … (3) The question is whether there is good reason for the court to validate the mode of service used, not whether the claimant had good reason to choose that mode. … 10 … In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the Claim Form at the time when it expired, and, I would add, (iii) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the Claim Form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances. … 16 … Although the purpose of service is to bring the contents of the Claim Form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.” 10.8 In the context of the correspondence and in particular DWF’s January 2022 letter, the Claimant refers to Phoenix Healthcare Distribution Ltd v. Woodward[2018] EWHC 2152 (Ch) where HHJ Hodge QC considered the extent to which a defendant can properly take advantage of an error made by the claimant. See para 173: “The overriding objective does require parties to take reasonable steps to ensure, so far as is reasonably possible, that there is a clear, common understanding between them as to the identity of the issues in the litigation, and also as to related matters, including procedural arrangements. But that requires there to have been a genuine misunderstanding that has arisen between the parties regarding a significant matter.” 10.9 The Defendant relies upon a more recent summary of the fundamental principles ofCPR 6.15 by Carr LJ (as she then was) in R (Good Law Project) v Secretary of State for Health and Social Care[2022] EWCA Civ 355 at [55]: “i) The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service; ii) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order underCPR 6.15 (2); iii) The manner in which service is effected is also important. A ‘bright line’ is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period; iv) In the generality of cases, the main relevant factors are likely to be: (a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired; (c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form. None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances”. 10.10 Further, the following paragraphs with the Defendant’s emphasis underlined: “[58] The result of the application of these principles can be harsh, as the first instance decisions to which the Judge referred demonstrate. In Barton itself a litigant in person purported to serve a claim form for professional negligence within time by email on the defendant’s solicitors (who were authorised to accept service, but not by email). The claim form expired unserved and the claim had become statute-barred. Both the District Judge and the Court of Appeal declined to authorise such service underCPR 6.15 . The (majority in the) Supreme Court agreed. Piepenbrock (again involving a litigant in person) and Ideal (at first instance) (involving solicitors’ failures) are further examples of retrospective validation being refused in circumstances where the defendant had full knowledge of the contents of the claim form within time and the only prejudice was the loss of an accrued limitation defence. […] [62] Nothing could have been simpler than email service on the new proceedings address. The power inCPR 6.15 can be (and is) often used to assist claimants where there are difficulties in service, for example, because a defendant is being evasive or abroad and difficult to locate, or because service through diplomatic channels proves impossible to achieve in time. The courts are often invited (prospectively) and agree to authorise alternative methods or places in such circumstances. Here there were simply no obstacles in the way of valid service. [63] Further, the absence of any proper explanation as to how the mistaken view that service of an unsealed claim form could amount to valid service came about (as set out above), or who (and how many) formed it, does not advance Good Law's cause. There was no attempt to serve the sealed claim form on the correct address within time. The level of care required cannot be divorced from the significance of the procedural step in question. Thus, service of a claim form requires the utmost diligence and care to ensure that the relevant procedural rules are properly complied with. In the event, this was serious carelessness. The Judge was entitled to lay heavy weight on this consideration. As she said, the SSHSC had made the authorised address for service "very clear". [….] [83] …Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim. [84] The consequences of the error in service may seem harsh in circumstances where the sealed claim form was sent to the SSHSC's lawyers within time. But as the authorities demonstrate,CPR 6.15 is not a generous provision for claimants where there are no obstacles to valid service of a claim form within time. The power to validate will not necessarily be exercised even when the defendant, either itself or through its solicitors, is fully on notice within time and the only prejudice to the defendant would be the loss of an accrued limitation defence”. 10.11 In Barton v Wright Hassall, a case in which the Defendant ironically observes directly concerned the Claimant’s firm of solicitors, the Defendant took me to (again with the Defendant’s emphasis underlined) Lord Sumption at [23]: “Naturally, none of this would have mattered if Mr Barton had allowed himself time to rectify any mishap. But having issued the claim form at the very end of the limitation period and opted not to have it served by the Court, he then made no attempt to serve it himself until the very end of its period of validity. A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application underCPR rule 6.15 (2). By comparison, the prejudice to Wright Hassall is palpable. They will retrospectively be deprived of an accrued limitation defence if service is validated”. 11 The Claimant’s submissions The Claimant relies upon two fundamental points. 11.1 First, a clear objective interpretation of the contemporaneous documentation establishes that WBA could be served at an office of Roythornes. Whilst falling short of reliance upon there having been any express assertion to this effect on behalf of WBA, the Claimant can be taken as having acted reasonably in reaching this conclusion and accordingly should be treated as having taken “reasonable steps” to serve the Claim Form. To adopt the more subjective wording in the Claimant counsel’s skeleton argument, the Claimant had “ascertained to his satisfaction” that Roythornes’ address was also Mr Archer’s for the purpose of service. 11.2 Secondly, that Mr Archer, WBA’s insurer and their jointly instructed solicitors DWF, all were fully aware of the proposed claim and then the issue of a Claim Form with Particulars of Claim in support. Following the exchange of protocol correspondence and the Standstill Agreement, it was therefore entirely clear in November 2023 that the Claimant was seeking to cross the “bright line” described in Barton at [16] and to commence proceedings. If there therefore was an error of understanding as to the correct address for service, WBA (through DWF) had “contributed” to the Claimant’s misunderstanding by not correcting the Claimant despite having had the opportunity to do so. The Claimant submits that this, combined with the “unexplained” refusal to accept service, constitutes technical game-playing per Abela [38]. 11.3 The Claimant’s first point requires some careful attention. It requires the court to accept that the materials on an objective reading support the Claimant’s understanding of how service should be effected. Mr Dillon submits that because such an interpretation is clear and obvious, this explains why Claimant has chosen not to explain or amplify matters by direct witness evidence; either from him or, as one would anticipate to be more likely, his solicitors. 11.4 The Claimant submits that, taken as a whole, the clear impression and natural reading of the Standstill Agreement was that: (i) Mr Archer traded as WBA; and (ii) Because of the acquisition of WBA’s business by Roythornes, Mr Archer had come to use Roythornes’ address. (iii) Although Mr Dillon was careful not to suggest that such references in the Agreement were intended consciously to mislead, the wording plainly encouraged and maintained the impression to which DWF knew Wright Hassall were working: that Mr Archer’s address was Roythornes. 11.5 The Claimant accepts that whilst WBA’s principal or last known place of business had been 20 Hartford Road, that address had for some years been accepted as not an effective place for service. The proposition instead is that because the Claimant understood at least from the time of the Standstill Agreement that Mr Archer was still practising as a solicitor and had some form of professional association or engagement with Roythornes, then it was a reasonable assumption and hence reasonable step to adopt Roythornes’ address for the purposes of serving Mr Archer pursuant to r.6.9(4)(a). 11.6 Mr Dillon was keen to emphasise that until the production of the unequivocal explanation of facts in Mr Archer’s witness statement, the Defendant has never been entirely clear about Mr Archer’s status either in relation to Roythornes or in his own right, if independently. For example, Ms Wood’s statement implies that Mr Archer continued to practise as a solicitor after dissolution of WBA at the Hertford Road address: where was this address, then, if not Roythornes? So, if it was reasonable to assume Mr Archer was at the operative time of service trading as a sole practitioner in his own right as “WBA”, so too it was reasonable to assume his address would be an office of Roythornes. This thinking is said to emanate from the backdrop how Mr Archer is presented in the standstill agreement. 11.7 The Claimant was asked at the hearing to explain more deeply the proposition that Mr Archer was served as a practising sole practitioner in the context of the apparent meaning of the sentence at Paragraph 6 in the N244 Box 10 narrative “Following the acquisition, it is understood that the WBA team moved to Roythornes’ offices”
“…what is absolutely clear is that no steps were taken underPractice Direction 7A para 5B [now CPR PD&A, 8.1-8.3] to request a partnership membership statement. It seems to me that it is not possible for a claimant to say that [the Claimant] has taken reasonable steps to ascertain the current address of the individual defendants, the partners, or a place of business without serving such a request.” [Emphasis by the Defendant as underlined]
“68. 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”
“Upon a representative of Roythornes Limited confirming that it is the firm which took over the assets of Gregory Archer trading as Warren Boyes & Archer, the Parties, notwithstanding that Roythornes Limited does not believe it has attracted any liability in this matter as a result of the said asset purchase, wish to enter into this standstill agreement”