Abbey National Plc v Frost & Anor

Under RSC O.65, r.4, impracticability of personal service is the essential precondition to substituted service. The court retains a broad discretion as to the appropriate method. The rule does not impose an absolute requirement that the document is likely to reach the defendant or come to his knowledge.

That consideration remains important when exercising the discretion, but it does not prevent substituted service where the defendant has disappeared and service on another person is likely to advance the rule’s purpose. Service on the Solicitors Indemnity Fund may therefore be suitable in an appropriate negligence claim against a solicitor, given the Fund’s statutory and public-protective purpose. Each case must still be assessed on its facts.

Abbey National brought a negligence and breach of fiduciary duty claim against a solicitor arising from a mortgage transaction. The solicitor had been struck off and could not be traced. The plaintiff obtained an order for substituted service of the writ on the Solicitors Indemnity Fund.

The Fund intervened and successfully challenged the order before Carnwath J, who discharged the orders of the district judge and Master Moncaster. The central issue was whether substituted service could be ordered under RSC O.65, r.4 where there was no likelihood that the writ would reach the defendant or come to his knowledge.

1. Appeal allowed. The order of Carnwath J was discharged, the district judge’s order was restored, and service of the writ on the Solicitors Indemnity Fund was declared good service on the defendant.
2. Lord Justice Nourse held that the essential consideration under RSC O.65, r.4(1) was whether personal service in the prescribed manner was impracticable. Once that condition was satisfied, the court had a broad discretion to direct substituted service. Rule 4(3) did not create an implied requirement that the document was likely to reach the defendant.
3. The approach in Porter v Freudenberg [1915] 1 KB 857 had to be read in the light of its facts and the rules then in force. The likelihood of notice was a principle governing the exercise of discretion, rather than an additional statutory precondition. The current wording of r.4(3) did not remove the discretion under r.4(1).
4. The Solicitors Indemnity Fund had been established under section 37 of the Solicitors Act 1974 primarily to safeguard members of the public who resort to solicitors. Its real interest in defending admissible claims made substituted service on it suitable in an appropriate case, even where the solicitor’s whereabouts were unknown.
5. The discretion had been properly exercised. Further tracing enquiries were unlikely to assist, and the distinction based on alleged deliberate concealment did not affect the method of service. The court also recognised an exception to Wilding v Bean [1891] 1 QB 100 where a defendant had left the jurisdiction to evade service. Lord Justices Henry and Robert Walker agreed with Lord Justice Nourse.

• Court of Appeal (Civil Division): Appeal allowed. Carnwath J’s order was discharged and the district judge’s order for substituted service was restored.
• High Court, Chancery Division: Carnwath J allowed the Solicitors Indemnity Fund’s appeal and discharged the orders of the Master and district judge.
• Master Moncaster: Application by the Fund to set aside the substituted-service order dismissed.
• District judge: Leave granted to serve the writ on the Solicitors Indemnity Fund.