Mersey Docks Property Holdings & Ors v Kilgour

Under CPR Part 6.5(6), a proprietor’s “last known place of business” means the last place of business known to the claimant, rather than the last objectively ascertainable address. The claimant must take reasonable steps to discover the current or last place from which the defendant carried on business. Knowledge acquired by an assignor is imputed to the assignee at the date of assignment and is treated as continuing unless superseded by appropriate further enquiries. An extension of time for service under CPR Part 7.6 is discretionary and depends on the claimant having taken all reasonable steps and having acted promptly. Delay in issuing proceedings and inadequate investigation may justify refusal, even where the defendant suffers no distinct prejudice from late service.

The claimants brought a substantial multi-party claim arising from a fire at a fruit storage and distribution centre. The fourth defendant, an architect, had changed both his business name and business address several years before proceedings were issued. The claimants sent the claim form by post to his former business address shortly before expiry of the four-month service period.

The issue was ordered for preliminary determination. The court had to decide whether service complied with CPR Part 6.5(6), and, if not, whether time should be extended under CPR Part 7.6. The case also raised how knowledge of an assignor’s dealings with the defendant should be imputed to an assignee.

1. Service. The claimants had not validly served the claim form. CPR Part 6.5(6) refers to the last place of business known to the claimant. The claimant must take reasonable steps, assessed at the date of service, to ascertain the defendant’s current place of business or the last place from which the defendant carried on business. An objective test based on general ascertainability was rejected.
2. The claimants’ enquiries were inadequate. The defendant was a professional architect whose details could have been checked through relevant professional directories, the Architects’ Registration Board or the Yellow Pages. A failed search under his former practice name should have prompted further enquiries.
3. Imputed knowledge. Knowledge held by an assignor is imputed to the assignee at the date of assignment. The assignees therefore acquired knowledge of the defendant’s changed business name and address from their assignors’ dealings. That knowledge would continue unless superseded by appropriate enquiries into the current position.
4. Extension of time. Under CPR Part 7.6(3), an extension after expiry requires all reasonable steps to have been taken and a prompt application. The claimants failed both requirements. They issued proceedings close to the limitation deadline, investigated the defendant’s address inadequately and did not apply promptly after the service objection was clearly raised.
5. The court applied the approach in Hashtroodi v Hancock [2004] EWCA (Civ) 652 and Vinos v Marks & Spencer plc [2001] 3 All ER 784. The absence of substantial additional prejudice from late service was irrelevant. The preliminary question was answered “No”.

First-instance decision. No prior appellate decision is stated in the judgment.