MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor

Service at an individual’s last known residence may be effective even without actual receipt. The relevant knowledge is actual or constructive knowledge acquired through reasonable diligence before the step required for service, provided it remained objectively reasonable to believe that the residence had not changed.

Extensions of time for serving a claim form require evidence of all reasonable steps and promptness. The court’s retrospective alternative-service powers require good reason and a proper exercise of discretion. They are not ordinarily available to cure a claimant’s series of procedural failures.

The claimant brought proceedings for trade mark infringement and passing off against the defendants. The first defendant entered receivership, leaving the claim against the second defendant.

The claim form and particulars of claim were delivered to two addresses. Earlier default judgment was set aside after the court found that the second defendant had not been served with the particulars of claim. A later order requiring service was itself set aside. The claimant then sought retrospective orders validating service, extending time, or permitting alternative service under the Civil Procedure Rules.

The central issues were whether service at the second address had been effective, whether time should be extended retrospectively, and whether the court should validate the steps taken under the alternative-service provisions.

The application was dismissed in its entirety. None of the proposed routes established valid service of both the claim form and particulars of claim.

1. The order requiring service by 30 August 2013 did not retrospectively extend time under rule 7.6(3). An extension of time for serving a claim form was not a trivial matter, required evidence, and would have been stated clearly if intended. Service on 29 August 2013 was therefore out of time.

2. Applying Collier v Williams [2006] 1 WLR 1945 (CA), “last known residence” referred to actual knowledge or constructive knowledge obtainable through reasonable diligence. The relevant inquiries need not be made on the precise day of service. Where reasonable inquiries have been made beforehand and it remains objectively reasonable to believe that the residence is unchanged, service may be effective. On the facts, Irvine Place was the claimant’s last known residence when the documents were posted.

3. That conclusion could not overcome the unappealed finding in the earlier order that the defendant had not been served with the particulars of claim. The finding was interpreted as applying to both the claim form and particulars of claim. The claimant therefore could not rely on service at Irvine Place.

4. A retrospective extension for serving the particulars of claim was refused. The claimant should have applied promptly after the earlier order, and the approximately three-month delay was unexplained. The application for an extension of time for the claim form also failed because the evidence did not show that all reasonable steps had been taken or that the application had been made promptly.

5. Under rules 6.15 and 6.27, good reason and a favourable exercise of discretion were cumulative requirements. The claimant’s procedural failures, unsupported allegation of evasive conduct, and failure simply to issue fresh proceedings did not justify retrospective validation. The alternative-service provisions were not designed to cure that kind of failure.

First-instance procedural decision. The judgment records earlier orders within the same proceedings, including orders by HH Judge Birss QC and District Judge Lambert, but no appeal from the present decision.