Serving Proceedings On A Defendant Who Lives In A Block Of Apartments – What Needs To Be Considered

Ivanchev v Velli [2020] EWHC 1917 (QB)

This case is particularly helpful in identifying what needs to be considered when serving proceedings on a defendant who lives in a block of apartments.

Background

The Claimant (Mr Stanislav Ivanchev) commenced proceedings against the Defendant (Mr Michele Velli) in respect of allegations of libel, harassment and breach of data protection rights. The focus of the claim being on emails sent by the Defendant to the Claimant.

The Claimant did not receive an acknowledgment of service so applied for judgment in default and a final injunction.

The Defendant turned up at the hearing of the application for judgment in default and claimed that he had never been served with the proceedings. The question therefore arose as to whether the claim form was properly served.

The Defendant lived in a building comprising 16 floors and over 100 apartments. Each apartment had a secure mailbox in a communal ground floor area. It is important to note that the Claimant’s solicitors had sent several emails to the Defendant asking for confirmation of his address or whether he would agree to accept service of the proceedings by email.

The Defendant never responded to the Claimant’s solicitors and, as such, a tracing agent was instructed to locate the Defendant’s address. The tracing agent confirmed that the correct address was apartment 1607.

A process server attended the building and rang the intercom for 1607, a man answered and confirmed that he was not the Defendant and that the Defendant was not there. As a result the process server posted the proceedings into the letterbox for number 1607.

The process server later returned to the building to serve the application notice seeking default judgment. Again, the process server rang the intercom and spoke to a Dr Newman who confirmed that he had lived in the property for over a month. The process server spoke to the security guard and the building manager who both indicated that the Defendant lived in the building but would not provide the process server with his exact address.

What did the Court decide?

The Court decided that the proceedings had not been validly served and, as such, the judgment in default was dismissed.

Despite this conclusion, the Court went on to consider whether service had been effected in accordance with CPR 6.9(2), i.e at the defendant’s “usual or last known residence”.

The Claimant argued that they had taken sufficient steps to satisfy the Defendant’s usual or last known residence. The Court rejected the argument confirming that the words “usual or last known residence” require the defendant to have actually lived at the address at some point.

Practical points

The Court provided guidance within this case setting out the steps that should be followed when establishing whether a defendant resides in a certain flat within a large multi-occupancy building, which include:

1. Attempting to speak to the occupant of the specific flat via intercom to confirm the identity of the resident;
2. Speak with any security guards or on site management staff (if available);
3. Where the defendant can be contacted by email, an email should be sent asking for confirmation of the position regarding the last known address; and
4. If the defendant will not clarify the position, an application should be made for substituted service.

The most pertinent point to take from the case of Ivanchev v Velli is that it can never be good service to serve at an address which the defendant has never occupied regardless of whether the claimant has an honest belief that it was his/her usual or last known residence.