Ellison Road Limited v Khurram Mian t/a HKH Kenwright & Cox Solicitors & Anor

The court considered whether an individual named in proceedings as "X trading as Y" is for the purposes of CPR r 6.9(2) to be treated as being sued in the name of a business, and whether service of the claim form at an address identified on the Solicitors Regulation Authority (SRA) website was valid. The Master held that where the full name of an individual carrying on business in a trading name is known, Practice Direction 16 para 2.6 requires the individuals full name and the trading name to be used and that such a defendant can be treated as being sued in the name of a business for the purposes of CPR r 6.9(2). Consequently service may be effected at the individual's principal or last known place of business, or at an address ascertained under CPR r 6.9(3).

The court found that reasonable steps had been taken to ascertain the first defendant's business address by consulting the SRA website and other public sources, that the SRA entry showing Moriarty Law Limited at 20 Old Bailey correctly identified the first defendant's current place of business, and that service at that address (and emailing the defendant's solicitors before expiry of the claim form) brought the claim form to the defendant's attention within the relevant time. The first defendant's application for a declaration that the court had no jurisdiction was dismissed.

This is a first instance determination of contested service of a claim form in a professional negligence claim. The claimant issued a claim relating to alleged negligent conveyancing/advisory work in May 2016 and named the first defendant originally as the trading name HKH Kenwright & Cox Solicitors. The claimant later amended the claim form to name the individual, "Khurram Mian t/as HKH Kenwright & Cox Solicitors", and sought to serve the amended claim form at 20 Old Bailey, the address shown on the SRA website as the address of Moriarty Law Limited where the first defendant was listed as head of legal practice.

Parties and procedural posture:

• The claimant: Ellison Road Limited (professional negligence claim).
• First defendant: Mr Khurram Mian, sued in his own name trading as HKH Kenwright & Cox Solicitors.
• Second defendant: Moriarty Law Limited (acknowledged service and not represented at hearing).
• The first defendant applied under CPR r 11(1) for a declaration that the court had no jurisdiction because, he contended, an individual sued in his own name (albeit trading as a business) must be served only at his usual or last known residence under CPR r 6.9(2).
• The claimant cross-applied for validation/alternative service under CPR rr 6.15/6.16 and, in the alternative, permission to serve out of the jurisdiction and an extension of time.

Issues framed:

1. Whether an individual described as "X t/as Y" is for the purposes of CPR r 6.9(2) being sued in the name of a business and thus may be served at his principal or last known place of business, or whether such a defendant must be served only at his usual or last known residence.
2. If service at a business address is permitted, whether the address used by the claimant (20 Old Bailey) was the principal, last known or current place of business of the first defendant.
3. Whether the claimant took reasonable steps under CPR r 6.9(3) to ascertain the defendant's current business address.
4. If service was not valid, whether the court would validate the steps taken under CPR r 6.15(2).

Reasoning and disposition:

• The Master reconciled Practice Direction 16 para 2.6 and Practice Direction 7A para 5C by reading them together: where the full name of an individual carrying on business in a trading name is known, PD16 requires the use of that full name together with the trading name; PD7A permits use of a business name alone only when the individual's full name is not known. On that basis an individual named as "X t/as Y" can be treated as sued in the name of a business for CPR r 6.9(2).
• CPR r 6.9(2) requires service at the individual's principal or last known place of business where the individual is sued in the name of a business. The Master rejected the submission that the relevant place of business was that of the trading name only, emphasising that a sole practitioner's trading name is not a separate legal entity.
• The claimant had taken reasonable steps to ascertain the current business address by consulting the SRA website and public records; the SRA publication that Mr Mian practised at Moriarty Law Limited, 20 Old Bailey, was reliable and the claimant was entitled to rely on it. Given those reasonable steps, service at 20 Old Bailey and emailing Mills & Reeve before expiry of the claim form were sufficient to effect valid service.
• The first defendant's application was dismissed. Alternatively, had service been defective, the Master would have validated the steps taken under CPR r 6.15(2) because the defendant and his solicitors had been put on notice of the claim within the period of validity and the claimant had acted reasonably in relying on SRA information.

At first instance, the court dismissed the first defendant's application and held that the claimant had validly served the claim form. The court ruled that where an individual is sued in the name of a business but the individual's full name is known, Practice Direction 16 requires the claimant to name the individual with the trading name and that such a defendant may be served at his principal or last known place of business under CPR r 6.9(2). The court further held that the claimant had taken reasonable steps under CPR r 6.9(3) by relying on the SRA website to identify 20 Old Bailey as the defendant's current business address and that service at that address (and by email to defendant's solicitors before expiry) brought the claim form to the defendant's attention. If the primary conclusion were wrong, the court would in any event have validated the steps taken under CPR r 6.15(2).