Akram v Adam

Where the prescribed conditions are satisfied, posting a claim form to an individual’s usual or last known residence constitutes good service under rule 6.5(6) of the Civil Procedure Rules 1998. Actual receipt is unnecessary.

A resulting judgment is regular if the procedural requirements were observed and the claimant had no reason, before judgment, to know that service had failed. The defendant has no automatic right to have it set aside. Relief depends on the discretion under rule 13.3, including a real prospect of successfully defending the claim or another good reason for intervention, and prompt application.

This scheme is compatible with article 6 of the European Convention on Human Rights. Article 6 does not require a trial where the proposed defence is not arguable.

The landlord obtained a possession order against his protected tenant after posting the claim form and particulars to the tenant’s usual residence. The tenant did not receive the documents and first learned of the proceedings after the warrant for possession had been executed.

District Judge Silverwood-Cope set the possession order aside because known difficulties with post meant that service at the property was insufficient. On appeal, Judge Yelton held that service was valid under rule 6.5(6) of the Civil Procedure Rules 1998. He also concluded that the order should not be set aside because the proposed defence had no merit.

The tenant brought a second appeal. The central questions were whether compliant postal service remained effective despite non-receipt, whether the judgment could be set aside as of right, and whether that procedural regime was compatible with article 6 of the European Convention on Human Rights.

1. The appeal was dismissed unanimously. Posting the claim form to the defendant at his usual residence constituted good service under rule 6.5(6) of the Civil Procedure Rules 1998. The prescribed conditions were satisfied, and there was no finding that the documents had been returned undelivered. Actual receipt was not a condition of effective service.

2. The judgment had therefore been regularly entered. It was not required to be set aside under rule 13.2. It could be set aside only as a matter of discretion under rule 13.3. The position might have differed had the claimant deliberately suppressed the documents after they arrived, but no such finding had been made.

3. Failure to receive the claim form may constitute another good reason for relief under rule 13.3(1)(b), independently of the merits. It does not create an absolute right to relief. The court may intervene where the defendant has a real, rather than fanciful, prospect of successfully defending the claim or some other good reason exists, provided that the application is made promptly. Here the proposed defence had no merit, and setting aside the possession order would have been pointless. Judge Yelton’s exercise of discretion could not be faulted.

4. The procedural scheme was compatible with article 6 of the European Convention on Human Rights. Rules permitting postal service at a usual or last known residence, coupled with discretionary access to the court where the documents were not received, provided an accessible, fair and efficient system. The right to be heard did not require a trial, or further summary proceedings, where no arguable domestic-law defence existed.

5. Brooke LJ gave the judgment, with which Jonathan Parker and Keene LJJ agreed. There was no order as to costs because counsel for the respondent acted pro bono.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 1601, dismissed the tenant’s second appeal and upheld Judge Yelton’s decision.

2. Southend County Court, Judge Yelton: Allowed the landlord’s appeal. He held that postal service at the tenant’s usual residence was valid and that the proposed defence lacked merit.

3. Southend County Court, District Judge Silverwood-Cope: Set aside the possession order and directed that the claim be served at the tenant’s sister’s address.

4. Southend County Court, Deputy District Judge Cooksley: Made the possession order in the tenant’s absence.