EWHC 2652 (Ch)
This case raises several points of interest, not least the question of when prison becomes a defendant’s usual or last known residence under CPR 6. The claimant began proceedings against several parties including a partnership of which Mr Luqman was one of the two partners. He served proceedings against the partnership at two of Mr Luqman’s residences (or former residences) although he knew that Mr Luqman was serving an 18 month prison sentence at the time. Service was challenged on the grounds that postal service (rather than personal service) on one partner of a firm is not good service on all partners and that Mr Luqman’s last known residence was the prison.
Service on a partnership
CPR 6.4(5) provides that where partners are being sued in the name of their firm, personal service on the partnership may be effected by leaving the document with a partner or a person with the control or management of the partnership at its principal place of business. Where service is not personal, service should be in accordance with rule 6.4(5) and the table set out in rule 6.5(5) where it refers to an “individual who is suing or being sued in the name of a firm”. The two addresses in that table are “usual or last known place of residence” or “principal or last known place of business of the firm”.
The judge concluded that service on a partnership, and all its partners, can be effected by postal service on one of the partners. This was the case under the previous rule, RSC Order 81, and despite the fact that the present rule is not in the same terms, there is no good reason to interpret CPR 6 differently.
“Usual or last known residence”
This phrase has caused endless trouble but never before has a prisoner’s residence been in issue. The judge concluded that, where the claimant knows that the defendant is in prison, service at his home is not good service. His insistence on the relevance of the claimant’s knowledge doesn’t sit well with previous decisions which have held that a document sent or left at the defendant’s “usual or last known residence” is properly served even if he never received it and even if the claimant knows or believes that the defendant is no longer living there. A claim form can also be served at the defendant’s usual or last known residence where the defendant is physically out of the jurisdiction at the date of service (Kamali v City & Country Properties Ltd). The judgment doesn’t refer to any of the previous decisions interpreting this phrase and may be questionable for this reason although, as the judge pointed out, the question of whether prison can be a defendant’s “usual or last known residence” has not been considered in any of the earlier cases.
Comment: this judgment provides welcome certainty about service on partnerships under the CPR – the absence of a dedicated rule on partnerships to replace O.81 has made it difficult to find the relevant rules and when found they are often poorly drafted and raise more questions than they answer. We must hope that the revised version of CPR 6, expected in 2008, will address some of these problems.