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I've got a case where the Defendant (a public authority) was served by the Court at the address for his Legal Services department, where he told me to serve him and the claim form and Particulars were deemed served on 9 August 2018.
He ignored that and around 12 Notices or Orders served on him by the Court and around 7 items that I served on him (which he signed for) between 9 August 2018 and September 2019 and in that time he failed to attend 3 hearings.
In March 2019 I filed a Request and an application for default judgment, which was my second Request after the first one I'd filed on 29 August 2018 was never processed for some reason.
My Request and application were then listed for a hearing in September 2019 and I instructed a barrister to advise and represent me but the judge decided that as the Defendant was a public authority his failure to file an acknowledgement of service or a Defence must be my fault and I must have given the Court an invalid address for service. He was referred to evidence from the Defendant's own website showing that the address is the address for his "corporate offices" but he said that could be the Defendant's paperclip distributor and that he might have preferred me to serve a different department or an external firm of solicitors. His Legal Services department was clearly a valid place of service under r.6.9 and as he gave me that address so it was valid under r.6.8 as well but even if he hadn't it would still have been valid under r.6.9 and he'd never written to me to nominate an external firm of solicitors, or for any other reason, so r.6.7 didn't apply and I could hardly give the Court an address for a firm of solicitors that the Defendant had never given me but my barrister didn't refer the judge to any of these Rules.
The judge refused my Request for default judgment on the grounds that CPR 12.4(3) requires the claimant to abandon any claims for other remedies "in his request for judgment" and that meant it had to be done at the same time as making the Request and so my letter dated 8 March 2019 which was attached to my application and which contained an explicit statement that I'd abandoned my claims for non-monetary remedies in making my Request, was no good as the letter post-dated my Request, which was dated 2 March 2019. He also dismissed the applications in my Application Notice, including my application for default judgment even though there's no requirement to abandon any claims for non-monetary remedies when making an application for default judgment.
As a result of a silly mistake on the claim form trying to fit his name and address in the single box provided for both, the Defendant had been listed with "(Legal Services)" after his name but there was no error in the Particulars that were served together with the claim form and so the genuine mistake with his name was not one that could give rise to reasonable doubt as to the defendant's identity and thus it did not invalidate service, so it was suitable to be corrected under r.17.4(3) and correcting it didn't involve substituting a new party. I'd drawn this error to the attention of the Court and the Defendant in November-December 2018 and my barrister said it might be unnecessary but advised me to file an application to amend the claim form to correct the mistake just in case. I did so and my skeleton referred to r.17.4(3) and Adelson and another v. Associated Newspapers Ltd [2007] EWCA Civ 701 at [45].
At the hearing the judge invited my barrister to also apply to amend my claim form and particulars to delete the claims for non-monetary remedies that I'd said I'd abandoned when making my Request for default judgment and without seeking my consent my barrister did so, even though it was unnecessary for either my Request or my application for default judgment.
It ended with the judge ordering me to file and re-serve the amended claim form and particulars within 10 days, after I'd found the correct address. My barrister checked with the Defendant and they confirmed that the postal and email address they'd given me were the right addresses, so I re-served my amended claim form and particulars at the same address where everything had been served since July 2018 but I obviously couldn't seal the claim form myself. This time the Defendant decided to respond and instructed solicitors, who wrote to me pointing out that the claim form was unsealed and asking if I was effecting service out of time as it was issued on 6 August 2018. I replied to explain the history of the claim, including that the sealed claim form had been deemed served on 9 August 2018 but they decided to file an acknowledgment of service within 14 days of receiving the unsealed amended claim form and the judge then declared that to be in-time.
I've applied to set aside the acknowledgment of service, as it was about 14 months late and the Defendant didn't apply for an extension of time, which would have to be treated as an application for relief from sanctions and considered according to the Denton v White principles. It seems his only reason for ignoring the proceedings for over a year was the silly mistake with his name on the claim form, which didn't invalidate service and which he should have corrected on the acknowledgment of service as per PD 10 para. 5.2. However he now appears to have decided to argue that he never received the original claim form and Particulars that the Court served in August 2018.
So I'm wondering if anyone can point me to any authorities that deal with how the courts should deal with defendants who argue that they didn't receive service from the court? I'm sure the courts don't normally let defendants just ignore proceedings for over a year and then claim that they never received service from the court, or any of the numerous Notices and Orders that were served on them but the courts don't serve documents by signed for post so it's not possible to prove that anything that it served was received. I can only prove that the documents that I served were received and signed for and if the Defendant hadn't received the claim form and Particulars from the Court it seems strange that he wouldn't write to me to say he had no knowledge of the case but that still doesn't prove that he received service from the Court. Do the courts require some proof that a defendant didn't receive service from the court, such as proof they were out of the country or in hospital at the time, or does it just accept excuses like "my dog eats my post" or "my partner puts my post in a drawer / the bin and doesn't tell me" or in the case of public authorities "the staff in our post room are incompetent and throw our post away"?
He ignored that and around 12 Notices or Orders served on him by the Court and around 7 items that I served on him (which he signed for) between 9 August 2018 and September 2019 and in that time he failed to attend 3 hearings.
In March 2019 I filed a Request and an application for default judgment, which was my second Request after the first one I'd filed on 29 August 2018 was never processed for some reason.
My Request and application were then listed for a hearing in September 2019 and I instructed a barrister to advise and represent me but the judge decided that as the Defendant was a public authority his failure to file an acknowledgement of service or a Defence must be my fault and I must have given the Court an invalid address for service. He was referred to evidence from the Defendant's own website showing that the address is the address for his "corporate offices" but he said that could be the Defendant's paperclip distributor and that he might have preferred me to serve a different department or an external firm of solicitors. His Legal Services department was clearly a valid place of service under r.6.9 and as he gave me that address so it was valid under r.6.8 as well but even if he hadn't it would still have been valid under r.6.9 and he'd never written to me to nominate an external firm of solicitors, or for any other reason, so r.6.7 didn't apply and I could hardly give the Court an address for a firm of solicitors that the Defendant had never given me but my barrister didn't refer the judge to any of these Rules.
The judge refused my Request for default judgment on the grounds that CPR 12.4(3) requires the claimant to abandon any claims for other remedies "in his request for judgment" and that meant it had to be done at the same time as making the Request and so my letter dated 8 March 2019 which was attached to my application and which contained an explicit statement that I'd abandoned my claims for non-monetary remedies in making my Request, was no good as the letter post-dated my Request, which was dated 2 March 2019. He also dismissed the applications in my Application Notice, including my application for default judgment even though there's no requirement to abandon any claims for non-monetary remedies when making an application for default judgment.
As a result of a silly mistake on the claim form trying to fit his name and address in the single box provided for both, the Defendant had been listed with "(Legal Services)" after his name but there was no error in the Particulars that were served together with the claim form and so the genuine mistake with his name was not one that could give rise to reasonable doubt as to the defendant's identity and thus it did not invalidate service, so it was suitable to be corrected under r.17.4(3) and correcting it didn't involve substituting a new party. I'd drawn this error to the attention of the Court and the Defendant in November-December 2018 and my barrister said it might be unnecessary but advised me to file an application to amend the claim form to correct the mistake just in case. I did so and my skeleton referred to r.17.4(3) and Adelson and another v. Associated Newspapers Ltd [2007] EWCA Civ 701 at [45].
At the hearing the judge invited my barrister to also apply to amend my claim form and particulars to delete the claims for non-monetary remedies that I'd said I'd abandoned when making my Request for default judgment and without seeking my consent my barrister did so, even though it was unnecessary for either my Request or my application for default judgment.
It ended with the judge ordering me to file and re-serve the amended claim form and particulars within 10 days, after I'd found the correct address. My barrister checked with the Defendant and they confirmed that the postal and email address they'd given me were the right addresses, so I re-served my amended claim form and particulars at the same address where everything had been served since July 2018 but I obviously couldn't seal the claim form myself. This time the Defendant decided to respond and instructed solicitors, who wrote to me pointing out that the claim form was unsealed and asking if I was effecting service out of time as it was issued on 6 August 2018. I replied to explain the history of the claim, including that the sealed claim form had been deemed served on 9 August 2018 but they decided to file an acknowledgment of service within 14 days of receiving the unsealed amended claim form and the judge then declared that to be in-time.
I've applied to set aside the acknowledgment of service, as it was about 14 months late and the Defendant didn't apply for an extension of time, which would have to be treated as an application for relief from sanctions and considered according to the Denton v White principles. It seems his only reason for ignoring the proceedings for over a year was the silly mistake with his name on the claim form, which didn't invalidate service and which he should have corrected on the acknowledgment of service as per PD 10 para. 5.2. However he now appears to have decided to argue that he never received the original claim form and Particulars that the Court served in August 2018.
So I'm wondering if anyone can point me to any authorities that deal with how the courts should deal with defendants who argue that they didn't receive service from the court? I'm sure the courts don't normally let defendants just ignore proceedings for over a year and then claim that they never received service from the court, or any of the numerous Notices and Orders that were served on them but the courts don't serve documents by signed for post so it's not possible to prove that anything that it served was received. I can only prove that the documents that I served were received and signed for and if the Defendant hadn't received the claim form and Particulars from the Court it seems strange that he wouldn't write to me to say he had no knowledge of the case but that still doesn't prove that he received service from the Court. Do the courts require some proof that a defendant didn't receive service from the court, such as proof they were out of the country or in hospital at the time, or does it just accept excuses like "my dog eats my post" or "my partner puts my post in a drawer / the bin and doesn't tell me" or in the case of public authorities "the staff in our post room are incompetent and throw our post away"?
