Ashraf Mengrani v Ilyas Mohamed & Anor

For service under Civil Procedure Rules 1998 r 6.9, a person may have more than one usual or last known residence. The question is fact-sensitive and concerns the addressee’s pattern and quality of life, not simply the greater period of occupation. The claimant bears the burden of showing a good arguable case that the address was the defendant’s usual or last known residence. Where r 6.9(3) is engaged, reasonable steps to identify the current address must be taken, but the rule permits service at the usual or last known address if those steps are unsuccessful. A stay to facilitate non-court-based dispute resolution may be ordered where it preserves the essence of the right to a judicial hearing and is proportionate to fair, speedy and cost-effective resolution.

The claimant, a trustee and beneficiary of a small self-administered pension scheme, sought an account of its administration from the defendant trustees. The defendants applied to challenge jurisdiction, contending that personal service at their London property was invalid because they lived mainly in Pakistan and the property was not their usual residence. They also sought, in the alternative, a stay to enable non-court-based dispute resolution.

The court considered the operation of Civil Procedure Rules 1998 rr 6.3, 6.5 and 6.9, whether service could alternatively be effected under section 1140 of the Companies Act 2006, whether the defendants had waived their jurisdiction challenge, and whether a stay for mediation should be imposed.

1. Jurisdiction application dismissed. The claimant had a good arguable case that 17 Haslemere Gardens was the defendants’ current address for service. Their use of homes in both Pakistan and the United Kingdom did not prevent the London address from being a usual or last known residence. The relevant assessment was fact-sensitive and included the nature and quality of occupation, the address’s role as a family home, property records, and the defendants’ United Kingdom business interests.
2. The claimant bore the burden of proof. The defendants’ evidence did not displace the claimant’s better argument. Their failure to provide direct witness evidence was relevant to the evaluation of the competing material.
3. If Civil Procedure Rules 1998 r 6.9(3) was engaged, the claimant’s solicitors had nevertheless taken reasonable steps to ascertain the defendants’ current address. The search of relevant public registers was a proper step in the circumstances, but the duty was not confined to searching the proprietorship register.
4. Section 1140 of the Companies Act 2006 did not provide an alternative basis for service. Although the first defendant was a company director and the section establishes a broad statutory service provision, the defendants were sued as trustees of a trust-based pension scheme, not as directors, and the claim concerned administration of the scheme.
5. The defendants had not waived their jurisdiction challenge by seeking a stay. Applying the distinction between common-law waiver and statutory submission, the application for a stay was a proposed case-management step and was not an unequivocal renunciation of the right to contest jurisdiction.
6. Stay application suitable but deferred. The court had power under Civil Procedure Rules 1998 r 1.4 to encourage or facilitate alternative dispute resolution. A stay or order requiring non-court-based dispute resolution was permissible where it did not impair the essence of the right to a judicial hearing and was proportionate to achieving a fair, speedy and cost-effective resolution. No fixed list of factors was prescribed. The court directed that a directions hearing should first identify outstanding issues and necessary evidence, after which a stay should be imposed to facilitate mediation and settlement.