Sophie Samani
About Author
May 14, 2021
 in 
Articles

“The best way to find yourself is to lose yourself in the service of others.”

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.

More Posts

You Might Also Like

Read More
Articles

What to do when trusts are untrustworthy

Henderson & Jones has recently used an innovative assignment model to take control of a number of significant property assets for the benefit of bankruptcy estates. The property interests have now been secured and hundreds of thousands of pounds are due to be returned to the bankruptcy estates. See below for a brief explanation of how this was acheived.
Jul 8, 2021
Gwilym Jones
Read More
News / Press Releases

Football Index - Judgment

Judgment has today been handed down in Re BetIndex Limited regarding the distribution to customers of funds held in a trust by BetIndex Limited t/a Football Index. Please see our summary of the key findings and a link to the full judgment.
Jun 8, 2021
Philip Henderson
Read More
News / Press Releases

Statement re PIP victims' victory in Paris Court of Appeal

Today's decision from the Paris Court of Appeal is a significant breakthrough for thousands of women who have suffered as a result of the PIP implants scandal, who have been fighting for justice for over a decade. This ruling against TUV Rheinland - the company which certified these defective implants - is an important step, but there is much more work to be done. In the UK alone, it is estimated that close to 50,000 women have suffered as a result of PIP implants. In the UK, Henderson & Jones is continuing to fight for compensation for the patients of Hospital Medical Group through High Court proceedings against the former directors of Hospital Medical Group, the Wilkes Partnership LLP and Barclays Bank, to recover monies that were deliberately put beyond the reach of thousands of PIP victims."
May 20, 2021
Gwilym Jones