Phillip Carr v Vehichle Control Services LTD

On a second appeal, an appellate court may disturb a trial judge’s factual finding only where there is an identifiable error, such as a material error of law, a critical finding without evidential basis, or a demonstrable misunderstanding or failure to consider relevant evidence. It may also intervene where the decision cannot reasonably be explained or justified.

Under CPR rule 6.9(3), information giving reason to believe that a defendant no longer resides at the usual or last known address triggers reasonable steps to ascertain the current residence. The claimant need not know the new address. Telephone evidence and non-response may suffice. Reliance on a DVLA address does not answer the resulting duty.

The claimant sought £9,500 in parking charges after serving a claim form at the address supplied by the DVLA. The defendant said that he had moved and was living as a tenant at the premises where the parking occurred. Judgment in default was entered.

District Judge Iyer set aside the default judgment and struck out the claim, finding defective service under CPR rule 6.9 and expiry under rule 7.5(1). Her Honour Judge Evans allowed the claimant’s appeal, holding that the District Judge had misunderstood evidence concerning two telephone calls, and upheld service. The central issue on the second appeal was whether that interference with factual findings was permissible.

Disposition

The Court of Appeal unanimously allowed the second appeal. Her Honour Judge Evans’s order was set aside, and District Judge Iyer’s order, including its costs provision, was restored.

1. An appellate court must respect first-instance factual findings. Under the principles stated in Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600 and In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, intervention requires an identifiable error or a conclusion that cannot reasonably be explained or justified.
2. District Judge Iyer had not found that the defendant expressly referred to being a tenant in both telephone calls. His reference to two calls did not demonstrate a misunderstanding of the evidence. The second call could reasonably be understood, in context, as asserting a tenant’s right to park.
3. In any event, the findings were open to the District Judge. The telephone calls and the absence of any response to correspondence were capable of giving the claimant reason to believe that the defendant no longer lived at the DVLA address.
4. Under CPR rule 6.9(3), that information engaged the duty to take reasonable steps to ascertain the defendant’s current residence. The claimant was not required to know the new address before that duty arose. Relying on the DVLA address after forming the relevant belief was circular and did not satisfy the duty.
5. There was therefore no material flaw or error justifying appellate interference. The claim form had expired under CPR rule 7.5(1), so the restored order properly set aside the default judgment and struck out the claim.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 713. Allowed the second appeal, set aside Her Honour Judge Evans’s order and restored District Judge Iyer’s order.
• Manchester Civil Justice Centre — Her Honour Judge Evans, 7 May 2024. Allowed the claimant’s appeal, set aside District Judge Iyer’s order and redetermined the defendant’s application.
• Manchester Civil Justice Centre — District Judge Iyer, 25 October 2023. Set aside the default judgment and struck out the claim on the basis that the claim form had not been properly served and had expired.