Doing the same thing all over again

Sajid v Nuur (2018) CLCC, 30 July (Judgment here)

A county court appeal arising out of a set of proceedings starting with a disrepair claim by a private sector tenant, which raises issues of service and when second proceedings are an abuse of process. Our thanks to Hardwicke Chambers for making the judgment available.

Mr Sajid was the landlord of a property which he let to Ms Nuur on an assured shorthold tenancy in 2010. In 2014, the ceiling in the downstairs bedroom collapsed. Ms N brought a disrepair claim. Mr J counterclaimed for alleged rent arrears and alleged damage to the property by the tenant. Ms N admitted that there were rent arrears, but required Mr J to prove the amount. Damage was denied.

Mr J’s counterclaim was struck out as he had not paid the correct court fee and failed to do so after being told this. He then failed to file a directions questionnaire, which led to the defence being struck out. Judgment for damages of £8000, costs against Mr J and refusal of permission to appeal to Mr J was later entered, in August 2016.

In the meantime, Mr J had sought possession under the accelerated possession procedure and got a possession order, and Ms N had left the property in July 2015.

In August 2016 Mr J’s solicitors wrote to Ms N’s solicitor saying that Mr J was brining a money claim against Ms N, as king whether they were instructed to receive service and, if not, for a service address. Ms N’s solicitors replied that they were not instructed to receive service and all correspondence on a money claim should be sent directly to Ms N, but they did not have a correspondence address for her.

By May 2017, Ms N’s (new?) solicitors had a default costs certificate for £23,707.73, as Mr J had not filed points of dispute, and were pursuing enforcement by statutory demand.

Mr J then issued a money claim for rent arrears of £37,000 and £3300 interest. This was served on the property in May 2017, the one that Ms N had left in July 2015. Default judgment was entered when no defence was filed. At this point, Mr J’s solicitors informed Ms N’s solicitors of the default judgment. Ms N applied to set aside default judgment. At first instance, this was dismissed, with the DDJ finding the claim form had been properly served.

Ms N appealed, on two grounds. Firstly that Mr J could and should have applied for alternative service on Ms N’s solicitors or her daughter. Secondly that the claim should be struck out as an abuse of process, given that the first counterclaim for arrears had been struck out and no application for relief from sanctions made.

On the service issue, the Circuit Judge allowed the appeal.

CPR 6.9 provides (so far as relevant):

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

Mr J knew that Ms N was not at the property. There had been some steps to try to ascertain her current address, without success. Therefore, under 6.9(4)(b), Mr J must consider an alternative place or method for service. Mr J was in contact with Ms N’s solicitors about the enforcement, but had not inquired about service since the email some 7 months before. An application for alternative service on Ms N’s solicitors under CPR 6.15 should have been made.

Default judgment set aside under CPR 13.3(1). There was also a real prospect of successfully defending the claim

On the ‘abuse of process’ argument.

Mr J’s failure to pay the court fee on the counterclaim was not ‘intentional or contumelious’ conduct. There was no breach of a peremptory order, like an unless order. The counterclaim did not involve significant use of court resources, it was ‘at the low end of the scale’. The failure to apply for relief from sanction did not, in itself, bar the commencement of the second action, and did not make the failure to pay the fee into an abuse, or inexcusable conduct.

Mr J’s present claim was not an abuse of process.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Disrepair, Housing law - All, Possession and tagged , .

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