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Service of possession claims
Possession claims: Beware the New Service Rules!
Caroline Cowley and Nicola King look at the effect of the new CPR Part 6 on possession claims
Introduction
In October 2008 a significant element of the service rules under Part 6 of the CPR was revised. The new rules are supplemented by new Practice Directions A and B.
The rules relating to service of court proceedings on an individual remain the same i.e. the place of service for the documents will be the defendant’s usual or last known address.
Prior to the new rules, even if a claimant was aware that the defendant was not living at the last known/usual address one could still validly serve the proceedings at the property that was the subject of the proceedings. Although the claimant may have also served at an alternative address if one was known, the obligation was on the defendant to provide an alternative address for service and if he didn’t service would still be effective at his last known residence.
Effect of the changes
However the change in Part 6 means that if the claimant is aware that the defendant no longer resides at the property the claimant must now take reasonable steps to find out the defendant’s current address. For example, if the claimant has relatives’ details on file it may be necessary to contact them or perhaps make enquiries of the police, any social worker, probation officer or council tax department.
If the claimant discovers where the defendant is currently living following those reasonable enquires, the court proceedings must be served at that new address.
If after taking reasonable steps, the claimant is unable to establish where the defendant is now living, the claimant must consider whether the proceedings would come to the defendant’s attention if served in an alternative way. An example might be to serve at a place where the defendant regularly visits, for example his/her mother’s address. If the claimant believes there is such an alternative place of service it must make an application to court for permission to serve the papers at the alternative address or by an alternative method. The application must show the steps taken to find out where the defendant lives and be supported by a witness statement.
Enquiries lead to no information
It is only if the claimant has carried out all of the above enquiries and is still unable to find out where the defendant lives or to find an alternative place to serve the court papers, that the claimant may serve the proceedings on the defendant’s last known address. The claimant must, however, be ready to show the court at any subsequent hearing that it had taken reasonable steps to bring the court papers to the defendant’s attention in order for the judge to be satisfied that there has been good service.
Conclusion
The steps to prove valid service in possession cases are now much more onerous in those cases where the defendant is no longer at the property. Claimants will need to be prepared before they issue proceedings to avoid any delays or orders being set aside. Bear in mind that if as a result of your enquiries you need to make an application for substituted service this could take a few days (if not weeks) for the court to deal with even though it is likely to be dealt with without a hearing.
Caroline Cowley and Nicola King
Owen White Solicitors Social Housing Team
Senate House 62-70 Bath Road Slough SL1 3SR
T: 01753 876800 F:01753 876899
caroline.cowley@owenwhite.com
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