Kamali v City & Country Properties Ltd

Service of a claim form in accordance with the general service rules is valid even if the defendant is outside the jurisdiction when service occurs, provided the document is served at a permitted address within the jurisdiction. The Civil Procedure Rules do not preserve a general common-law requirement that the defendant must be physically present in England at the time of service. The former County Court Rules, as interpreted in Rolph v Zolan, demonstrate that postal service was not dependent on the defendant’s presence. The special provisions governing service out of the jurisdiction do not prevent valid domestic service under the general rules. Any unfairness may be addressed through the power to set aside a default judgment where the defendant has a real prospect of successfully defending the claim or another good reason, subject to promptness.

The defendant landlord owed rent for commercial premises. The claim form was served by leaving it at his accepted place of business in England while he was abroad. He failed to defend the claim, and default judgment was entered. His later application to set aside the judgment was refused because it was not made promptly and he had no real prospect of successfully defending the claim.

On appeal, he argued that service was invalid because he was outside the jurisdiction when the claim form was served. The County Court rejected that argument, relying on Rolph v Zolan. The central issue in the second appeal was whether the contrary reasoning in paragraph 47 of Chellaram v Chellaram (No. 2) was correct.

1. Appeal dismissed. The claim form was validly served at the defendant’s place of business in England, notwithstanding his absence from the jurisdiction.
2. May LJ held that CPR rules 6.2 and 6.5 contain no requirement that the person to be served must be within the jurisdiction when service is effected at a permitted address. The historical requirement of presence arose from personal service and was not a continuing fundamental principle. The former Rules of the Supreme Court, including Order 10 rule 1, were materially different from the County Court Rules and did not govern the construction of the CPR.
3. The Court of Appeal’s decision in Rolph v Zolan was plainly applicable. Its reasoning, that the County Court Rules could not be limited by construction to service only on a defendant within the jurisdiction, applied without qualification to the materially similar CPR provisions. The CPR constituted a new procedural code for the High Court and County Court.
4. Neuberger LJ added that the plain and mandatory terms of rules 6.2 to 6.5 should not be qualified by an implied exception. The provisions for service out of the jurisdiction did not displace domestic service under the general rules. The Lugano and Geneva Conventions and the Judgments Regulation did not require a different interpretation. The court also accepted that reasonable investigations were required before service at a last known residence, and that a defendant who acted promptly and had an arguable defence or suffered unfair prejudice could normally seek to set aside a resulting judgment.
5. The defendant’s human-rights and race-discrimination arguments failed. Service rules applied equally to persons within and outside the jurisdiction, and section 1(1)(b) of the Race Relations Act 1976 was inapt because it concerned discrimination by a person, not by legislation. Rule 13.3 provided a sufficient safeguard, but the defendant had neither a real prospect of defending the rent claim nor another good reason for setting aside the judgment.
6. Wilson LJ concurred without hesitation, emphasising the undesirable uncertainty that would arise if validity of service depended on the defendant’s location on the day of deemed service.

• Court of Appeal (Civil Division): dismissed the appeal from the decision of HHJ Latham, sitting in the County Court, which had upheld the refusal by Deputy District Judge Shelton to set aside the default judgment.
• Shoreditch County Court: the judgment under appeal is identified in the judgment as the decision of HHJ Latham; no citation is stated.
• County Court: Deputy District Judge Shelton refused to set aside the default judgment under CPR rule 13.3.