Wise words from Mahatma Gandhi, however it seems that, despite being a lawyer, Gandhi was not talking about service in the legal sense of the word. This article explains how not to get lost when seeking to serve individuals where their current whereabouts are unknown or they reside outside of the jurisdiction.
It is fairly common when pursuing claims that the Defendant’s whereabouts are unknown, or it has been discovered that they now reside outside of the jurisdiction. This causes a significant issue, particularly when court proceedings need to be effectively served on the Defendant in question.
From a practical perspective, instructing process servers and tracing agents can add another layer of cost for claims of small to modest size and that is without factoring in the costs involved in applying for permission to serve out of the jurisdiction. These factors often lead to good claims being discontinued, or dropped.
If this situation arises, before considering abandoning a potentially good claim, it is worth ascertaining whether the Defendant is a director registered at Companies House.
If the Defendant is then he/she can be served at the address provided to Companies House (pursuant to s1140 Companies Act 2006 (“CA 2006”)) as an alternative to, or in place of serving at the “usual or last known residence” (CPR 6.9).
Perhaps of equal benefit and importance is that by serving in accordance with s1140 CA 2006 this also avoids the need to apply for permission to serve outside of the jurisdiction, even where the Defendant resides outside of the jurisdiction.
The important provisions of the Companies Act are:-
+ s1140(4) of CA 2006 provides that a director of a Company may be served at his “registered address” meaning “any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection”. Moreover, this applies regardless as to the purpose of that document.
+ Section 163(1)(b) of CA 2006 requires that a company’s register of directors must contain a “service address” for each director (and s167 CA 2006 requires the Companies House Registrar to be notified).
+ Section 1142 CA 2006 provides that any obligation under CA 2006 to give a director’s address is (unless specified otherwise) considered to be a service address.
This position was recently addressed in Idemia France SAS v Decatur Europe Ltd and others [2019] EWHC 946 (Comm) which clarified that:-
+ Service via s1140 is effective regardless of the nature of the document served.
+ It “provides a basis for serving a director which is entirely outside the provisions for service in the CPR. It is a parallel code.” (Master Marsh in Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402 at paras 18-26).
+ Where s1140 is utilised, and the address registered at Companies House is within the jurisdiction, the document is not served out of the jurisdiction even if the director/ person in question is not themselves present in the jurisdiction.
+ “The purpose would entirely be defeated if the validity of the address on the register depended upon the accident of whether the person concerned was physically present within the jurisdiction at the moment of service” (para 128 Idemia).
+ Accordingly, no permission is needed to serve outside the jurisdiction under CPR 6.36.
Finally, service on an individual by using their Companies House service address is also not limited to matters to do with the company (White Book para 6.3.10):-
“This address is valid for all service (not just matters to do with the company) until: (1) 14 days after the registration of a change of address; (2) all appointments for which this is the registered address have terminated; or (3) if, in respect of an overseas company, it has ceased to have the necessary connection to the UK for registration”.
Utilising s1140 is a cost effective solution to effecting good service on a Defendant whose whereabouts are unknown, or where they reside outside of the jurisdiction. However, effecting service in these circumstances is only the first hurdle towards making a successful recovery from a Defendant. In addition to proving the case, issues on successfully enforcing any award remain.
Henderson & Jones’ in-house legal team successfully relied upon this provision recently in the High Court where the Defendant had relocated overseas and was disputing that service had been properly effected on him at his usual or last known residence.
In that case Henderson & Jones had (in addition to serving at the Defendant’s usual or last known residential address) served the Defendant on his service address as recorded at Companies House, which was the same address as the joint office holders of the company of which the Defendant was a director.
After considering Henderson & Jones’ submissions, the Judge was satisfied that service had been properly effected according to s1140 (despite the Director being resident outside of the jurisdiction) and provided directions for the continuation of the claim.
