Jeffrey v Teevan (2025) EWCC 24
This is the County Court appeal of an order setting aside default judgment and a default costs order. There is a big ‘twist in the tale’, as the Circuit Judge puts it, and, because I do like a bit of dramatic tension, you’ll have to wait for it until later on in the post.
Mr Jeffrey had brought a claim for unlawful eviction (including apparently an injunction for re-entry, although he never got re-entry) in July 2020, following the alleged unlawful eviction in June 2020. There were initially three defendants, the landlord, Mr Teevan, the managing agents, Reel Estates, and a Mr Hurst as an agent for the landlord. The second and third defendant were later dropped from the claim.
Mr Teevan did not respond to the claim, and in January 2021, Mr J obtained an order for judgment with damages to be assessed. There were various other orders made, but we (and the appeal court) don’t know what they were. In December 2021, there was an order for damages of some £23,000, plus costs to be assessed. In October 2022, there was a default costs certificate made for some £45,000. So far, you might think, so good.
In July 2023, Mr T applied to set aside the judgment and the default costs certificate on the basis that he had not been served with the claim or anything subsequent until Mr J’s solicitors wrote to him at his home address in June 2023 with various documents and orders.
Mr J’s solicitors filed a witness statement by a Mr Clifford, a director of Reel Estates, saying that Mr T definitely knew about the claim and the trial dates, and picked up post from the address the claim had been served at. Mr T denied this.
The issue was that the claim and all the subsequent orders, notices, costs proceedings etc. had been served on an address – 26 Windmill Road – which was the address that Mr J had allegedly been unlawfully evicted from. Mr T said he had never lived there, and lived at 22 Park View Road. Mr J’s solicitors’ statement was that 26 Windmill Road was the owner’s address on the Land Registry.
The judgment and default costs certificate were set aside in October 2023. Mr J appealed, and here, eventually, we are.
It is fair to say the appeal did not go well.
The CJ observed that the District Judge on the application had apparently got things a little confused about when the court’ discretion as to whether setting aside judgment etc would apply.
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.”
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.
But there was no realistic way that the discretion would have been exercised in favour of Mr J.
Mr J’s solicitors had simply not followed the requirements of CPR 6.9. This was not service on the last known place of residence. It was known that Mr T did not live at the property. So the other steps in CPR 6.9 applied
“(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).”
Looking up the address given on the Land Registry was simply not enough where it was clear this was not the current residence.
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).
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.
An application to dispense with service, or to serve out of time, had been made but not until October 2023.
CPR 6.9(6) did not apply as the solicitors had not complied with CPR 6.9(3) to (5) first.
A submission that, in view of the statement of Mr Clifford, cross examination of Mr T should have been allowed on the issue of knowledge of proceedings got short shrift.
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.
As the issue was service, not knowledge, and Mr J’s solicitors had not established that they had undertaken the steps required to satisfy CPR 6.9 the appeal would fall to be dismissed on that basis.
But then…
While going through the Court file, the Circuit Judge had found an order dated in July 2020. This order, amongst other things, provided
“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.”
The trouble was that this order was a) not in the appeal bundle, b) not addressed in the statements from Mr J’s solicitors, and c) crucially had not been mentioned at all in the first instance set aside hearing.
Mr J’s counsel (who had not appeared below) valiantly sought to argue that the July 2020 order meant the appeal should be allowed as there was deemed service, but the Circuit Judge was having none of that. Had Mr T had knowledge of the July 2020 order then the approach to the set aside application would have been very different. There was no explanation from Mr J’s solicitors as to how the July 2020 order had come about, and the whole appeal hearing would have been different had the July 2020 order been before the Court.
The outcome, however, would have been the same.
Appeal dismissed. Costs to Mr T. But then worse. Mr J’s solicitors were apparently already faced with a ‘show cause’ order from the October 2023 set aside hearing as to why they should not pay the wasted costs of the hearing (presumably for the CPR 6.9 failings, though I’m guessing). This would now be combined with a show cause hearing as to why they should not pay wasted costs in the appeal, due to the failure to include, mention or address the July 2020 order.
On the claim, directions would be given for a defence and to trial.
Comment
Service is key. Service is everything. Compliance with CPR 6 and all the steps is vital, including demonstrating all reasonable steps to show attempts to establish an address ofr service, and an application for service by other means if needed.
But why, oh why, would you not include a copy of a key order in a hearing bundle for which it would be directly relevant? This is not a grey area…
At least Mr J’s claim survives. I don’t know if the ‘show cause’ hearing has happened yet or if a wasted costs order was made, but, as Mr J will inevitably face a set off of at least some of the appeal costs at indemnity rate against any eventual award of costs and damages, he may have good reason to be unhappy with his then solicitors.
