The validity of a demand or proceedings in relation to any unpaid demands will, in part at least, depend upon whether they have been properly served. This will require that they are at least sent to the correct address for the receiving party. But what is that address?

In Clevedon House Residents’ Association Limited -v- Colin Butcher (2020) the Court ruled on the Defendant’s post action applications to set aside two Judgments obtained by the Claimant in 2018 and 2020 in respect of service charge arrears relating to one flat. The Defendant alleged that both the demands and the County Court proceedings had been served at an incorrect address for service and thus the judgments obtained were neither valid nor enforceable.

Address for service for demands

As most of you will be aware, the address for service for demands will be the last given address by the property owner or in default the flat/property in question. Ideally, any notification of address for service will be in writing and thus retained as a clear record on your file. This might be the original lease where the current owner is the original owner or a notice of assignment for a later owner. Alternatively, it might be a letter received from the property owner perhaps after they have moved out or let the property and therefore providing a new address to which you are to send correspondence etc.

Valid service for a Claim

Rule 6.9 of the Civil Procedure Rules (“CPR”) states that where a Claimant has reason to believe that the last known address for the Defendant is an address at which the Defendant no longer resides or carries on a business, the Claimant must take reasonable steps to ascertain the address of the Defendant’s current residence or place of business (‘current address’).

Facts of this case

Both monetary Claims were simple arrears cases, which began with a Letter Before Action, then service of a County Court Claim, Judgment (in Default) and thereafter service of a Section 146 Notice leading to payment in each case by the Defendant’s mortgagee.

All correspondence throughout both claims was served at the property to which the arrears related (and also an old alternative address for the Defendant). The property address was the last given address for service by the Defendant, a position confirmed by the production by the agent of an email from the Defendant in 2015 (“the 2015 email”) and thus pre-dating the first action.

Throughout both Claims, the Defendant made no contact with the Claimant or its solicitors. The cases were settled by payment from the Defendant’s mortgagee with each concluding in 2018 and 2020 respectively.

Whilst both Judgments were cleared (by the mortgagee) the payment was later than 28 days following the Judgment therefore both Judgments were registered and remained on the Register of Judgments, Orders and Fines thereafter (for a period of six years in total), affecting the Defendant’s ability to obtain credit.

Due to the above mentioned financial impact that Judgments have on Defendants, it is not surprising that we occasionally see Defendants apply to the Court to have Judgments set aside, sometimes many years later, as in this case.

Defendant’s Application to set aside the Judgments

The main points raised by the Defendant in his Applications were: -

1. Neither of the claims were served on the Defendant personally or at his current “known” address;

2. The Claimant knew that the Defendant had not lived at the property, for a number of years;

3. The Claimant failed to obtain the Defendant’s current address by simple online searches;

4. The Defendant could have successfully defended part of the claims had he known about them at the time;

5. If the Claimant had made efforts to contact the Defendant prior to legal action, proceedings (and therefore the Judgments) would have been avoided.

Cases where the Court may set aside or vary Judgments entered under Part 12 of the CPR

(1) In any other case, the Court may set aside or vary a Judgment entered under Part 12 if –

(a) the Defendant has a real prospect of successfully defending the Claim; or

(b) it appears to the Court that there is some other good reason why –

(i) the Judgment should be set aside or varied; or

(ii) the Defendant should be allowed to defend the Claim.

(2) In considering whether to set aside or vary a Judgment entered under Part 12, the matters to which the Court must have regard include whether the person seeking to set aside the Judgment made an application to do so promptly.

The Result

Having explained the legal test (above) for setting aside a Judgment, the Court asked the Defendant why he was seeking to have the Judgments set aside, given that both had been satisfied (paid). In response it was clear that what was concerning the Defendant was the presence of the recorded judgment debts and that he did not dispute the debts themselves.

The Court found that there had been valid service of both demand and claim forms sent to the property address, the last notified address for the Defendant, notwithstanding that the Defendant no longer lived in the property and it was quite possible that he had never received them. The 2015 email made it clear that the Defendant had provided the address of the property as his address for service and he had not contacted the Claimant or its agent since then to notify them to the contrary. It was not incumbent on the Landlord or their agent to make searches or enquiries of a property owner/defendant to track them down. In addition, service of demands at the address of the property was expressly permitted under the lease specific to this property.

Accordingly, the Defendant’s applications were both dismissed and both Judgments remain in place! The Defendant was also ordered to pay the costs of the Claimant’s representatives’ attendance at the hearing.

Conclusion

Whilst this result was founded in common sense, it does act as a reminder that it is essential for any landlord or their agent to:-

• Ensure that all changes of address for service are received in writing (and ideally not otherwise accepted); and

• Maintain good records so that when asked, the production of a letter, email or notice from many years hence proves to be possible so as to rebut a spurious claim or defence by a defaulting property owner.

See the link here for some further guidance on “Avoiding the excuses for late payment!” with helpful and important tips on how to dismiss at an early stage a defaulting property owner’s claims of non service and other excuses.

For further information or advice on the matters similar to those set out above do contact us at info@kdllaw.com or on 01435 897297 and we will be glad to assist.

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