Back to the start position

While the CPR may have clarified many procedural issues, the consequences of non-service and a subsequent judgment absent of any response from the defendant remain, in the words of the editors of the Green Book 2008 a 'vexed question'. Failures of service are far from uncommon, often due simply to typographical errors in addresses in claim forms.

Before the CPR the position, at least since White v Weston [1968] 2 QB 647 CA, was clear.

A judgment entered against a defendant who had never been served was an irregular judgment and the defendant was entitled as of right, ex debito justitiae, to have it set aside without consideration of the merits of any potential defence. Under the CPR the explicit distinction between a regular and irregular judgment disappeared, and so did the previous certainty.

It is of course possible that a defendant will, despite lack of proper service, somehow become aware of the proceedings in time to participate in them. Once this happens, the court then has the necessary jurisdiction to make an order affecting him (Hackney LBC v Driscoll [2003] EWCA Civ 1037 at para.25). But where a defendant remains ignorant of the proceedings, judgments following a failure of service may be obtained by default or at trial which, in the case of certain proceedings such as possession and some consumer credit claims, may well take place without any further notification of the hearing date.

Acknowledgement of service

In the case of default judgments under Part 12 for failure to acknowledge service, defendants should apply to set aside under Part 13 on the ground they have not been served. Such defendants often mistakenly seek to rely on CPR 13.3, under which judgment may be set aside only if the defendant has a real prospect of success or 'it appears to the court there is some other good reason why (i) the judgment should be set aside or varied. . .' Instead, application should be made under CPR 13.2. While at first reading it may appear the requirements of this rule cannot be satisfied (because the judgment did follow a failure to file an acknowledgment of service in the required time limit), it was held in Credit Agricole Indosuez v Unicof [2003] EWHC 77 that in cases of non-service of the claim form the requirements of Part 12 cannot have been met, and therefore the judgment is wrongly entered. There can be no failure to file an acknowledgment to a claim form that has never been served. If a Part 12 judgment was wrongly entered, judgment must be set aside under CPR 13.2, regardless of the merits of any defence.

Failure to attend trial

In the case of judgments at trial, CPR 12 and 13 have no application. Instead, CPR 39.3 provides that a party who fails to attend a trial may apply to set aside the judgment. Under CPR 39.3(5) the court may grant the application only if it is made promptly, the defendant had a good reason for not attending, and he has a reasonable prospect of success at trial. The burden is therefore on the defendant to establish his case has some merit.

However, defendants who have never been served have been assisted by the decision in Nelson v Clearsprings (Management) Ltd [2006] EWCA Civ 1252, where the Court of Appeal held that the whole of rule 39.3 contemplates a trial after a defendant has been served (or service dispensed with). The requirement of rule 39.3(5), that a defendant who seeks to set aside a judgment must establish a reasonable prospect of success, should not apply to a defendant who has never been served.

While (despite some comments to the contrary at 39.3.7 of the White Book) there is no absolute right to have judgment set aside, the court has a discretion outside Part 39 to do so. In most cases, the just order will be one setting aside the judgment. It is for the claimant to show why there should be a different outcome.

To find that a discretion to set aside existed outside CPR 39.3, the court in Nelson relied on CPR 3.10 (general power to remedy an error of procedure) and CPR 3.1(2)(m) (general power to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective). Given the detailed rules about service in Part 6, the lack of specificity in the CPR regarding the consequences of non-service is perhaps surprising.

The combination of the decisions in Credit Agricole and Nelson has done much to restore non-served defendants to their pre-CPR position. However, a claimant can still seek to neutralise any application to set aside by cross-applying, in an appropriate case, for an order dispensing with service and for summary judgment.

No knowledge of proceedings

Further, the above relates only to cases of non-service. Where a defendant has been served according to the requirements of the CPR, but for some reason has no actual knowledge of the proceedings, different rules apply. In a default situation, the defendant will have to rely on the court's discretion under Part 13.3, and after a trial on the discretion under Part 39.3. In most cases the defendant will have to establish that his case has some merit before judgment is set aside, even though his ignorance of the proceedings may be through no fault of his own (Akram v Adam [2004] EWCA Civ 1601, [2005] 1 WLR 2762).

While one can understand the reasons for deemed service by post under CPR 6.7, it seems harsh that two defendants, one of whom is deemed to have been served and the other not, should face such differing tests when applying to set aside a judgment in proceedings of which they are both wholly ignorant. The argument that 'unless there is a defence of some merit, there is no point in setting aside a judgment', applies with equal force to persons served and not served. The difference in treatment can be justified only on the ground that the rules for deemed service are a proportionate measure, and that since non-receipt of a letter sent by post cannot readily be proved or disproved, fairness is best achieved by placing the initial burden on a claimant to serve in accordance with the rules, and then shifting the burden to a defendant who claims ignorance.

According to the Green Book, it is intended that the Civil Procedure Rules committee should reconsider CPR 39.3. New provisions spelling out the consequences of non-service would certainly assist busy practitioners and the many litigants in person now making applications to set aside in the courts.