Robertson v Banham & Co

For service of a writ by letterbox under the Rules of the Supreme Court, Order 10 rule 1(2)(b), a defendant’s usual or last known address is not confined to a residential address. Where a professional is sued in a professional capacity, it ordinarily includes the professional business address known to the claimant. The purpose of service is to bring proceedings to the defendant’s notice, and actual knowledge may displace the deemed seventh day. Service on one partner under Order 81 rule 3(1)(a) may therefore be effective at that address. Order 81 rule 3(1)(b) provides an additional method of service and does not restrict Order 10. The Court of Appeal did not follow the contrary observations in Marsden v Kingswell Watts concerning residential addresses, because those observations were unnecessary to that decision.

The claimant sued two former solicitor-partners in the firm name Banham & Co. The firm had been dissolved shortly before the writ was issued, but the claimant did not know this. She delivered the writ through the letterbox of the new partnership premises, where one former partner practised and received the documents. The defendants acknowledged service and stated an intention to defend. The claimant later entered judgment in default.

Master Rose held that the default judgment had been regularly obtained, but the Deputy High Court Judge held that service was irregular and varied the costs order. The claimant appealed. The principal questions were whether service at the solicitor’s professional address was valid and whether the defendants’ acknowledgment of service affected the alleged irregularity.

1. Appeal allowed. Lord Justice Roch delivered the principal judgment, and Mr Justice Connell agreed. The orders of Master Rose as to costs were restored. There was no order for costs before the Deputy Judge, and leave to appeal to the House of Lords was refused.
2. Under Order 81 rule 3(1)(a) of the Rules of the Supreme Court, a writ naming a partnership may be served on one or more partners under Order 10. Order 81 rule 3(1)(b), which permits delivery at the partnership’s principal place of business to a person controlling or managing the business, is a separate method. It does not confine service under Order 10 to a partner’s residence.
3. Order 10 rule 1(2)(b) permits service by inserting the writ through the letterbox at the defendant’s usual or last known address. Lord Justice Roch held that those words were not limited to residential addresses. A solicitor sued in that professional capacity would ordinarily have his professional address as both his usual address in that capacity and the address most likely to bring proceedings to his attention.
4. The purpose of the service rules is to give the defendant knowledge of the proceedings. The seven-day deeming provision is rebuttable. Actual knowledge may establish an earlier date of service. The claimant therefore effected due service when Mr Southward received the writ at the professional premises.
5. The contrary interpretation in Marsden v Kingswell Watts was not binding. The decision in that case rested on the deemed-date issue under Order 10 rule 1(3)(a), while the observations confining a usual or last known address to a residential address were unnecessary. The Court of Appeal could therefore decline to follow them, applying the principle in Young v Bristol Aeroplane Company Ltd.
6. The acknowledgment-of-service argument did not assist the claimant. Order 12 rule 8(7) treated the acknowledgment as submission to the jurisdiction, and Order 10 rule 1(5) deemed due service on the date of acknowledgment. If that had been the only effective service, the defence period would still have expired after the date on which default judgment was entered.

1. Court of Appeal (Civil Division) — allowed the claimant’s appeal and restored Master Rose’s costs orders.
2. High Court, Deputy Judge — held that the default judgment had been irregularly obtained, varied the costs orders, and gave leave to appeal.
3. Master Rose — set aside the default judgment but held that it had been regularly obtained and ordered the defendants to pay the claimant’s costs.