Fairmays (a firm) v Palmer

Proceedings issued for service within the jurisdiction cannot be effectively served when the defendant is physically outside the jurisdiction at the time of service or deemed service. This remains so under CPR 6, even where the claim form is sent to the defendant’s usual or last known residence within the jurisdiction. The defendant’s domicile is irrelevant. Residence matters only to identifying the appropriate address for service under CPR 6.5(6). A claimant may issue concurrent proceedings for service abroad and seek an order for alternative service at the last known address in the jurisdiction.

Fairmays obtained judgment in default of acknowledgement of service against its former partner, Michael James Palmer. The claim form was issued for service within the jurisdiction and posted to Palmer’s former English residence, although he had moved to Ethiopia and was outside the jurisdiction when service was deemed to take place.

Master Bowman dismissed Palmer’s application under CPR 13.2 to set aside the judgment, holding that service at the last known address was proper. Palmer appealed. The central issue was whether service under CPR 6 at an address within the jurisdiction was valid when the defendant was physically outside it at the time of actual or deemed service.

1. Appeal allowed. The default judgment was wrongly entered because the claim form had not been validly served. The steps taken in the proceedings were consequently rendered nugatory.
2. Proceedings issued for service within the jurisdiction can be effectively served only when the defendant is physically present within the jurisdiction at the time of service or deemed service. This principle, stated in Barclays Bank Swaziland Ltd v Hahn [1989] 1 WLR 506 and accepted in Chellaram v Chellaram [2002] 3 All ER 17, was not displaced by CPR 6.
3. CPR 6.5(1) does not authorise effective service within the jurisdiction on a defendant who is outside it when service or deemed service occurs. Sending documents to the usual or last known residence does not cure that defect.
4. The defendant’s domicile was irrelevant. Residence was material only for identifying the address for service under CPR 6.5(6). The Master was wrong to treat the retention of an English residence as sufficient.
5. Rolph v Zolan [1993] 1 WLR 1305 was distinguishable because it concerned the particular wording of the County Court Rules 1981. The physical-presence principle had also been applied after the CPR came into force in Cadogan Properties Ltd v Mount Eden Land Ltd [2000] IL Pr 722.
6. As practical guidance, a claimant facing uncertainty about a defendant’s whereabouts may issue concurrent proceedings for service abroad and seek an order for alternative service at the last known address in the jurisdiction.

1. High Court (Chancery Division): Appeal from Master Bowman’s order of 21 May 2004 dismissing the application to set aside the default judgment. The appeal was allowed.