COVID-19: Issues relating to service during lockdown

Nicholas Towers Call: 2011

Sarah Walker Call: 2013

Contact the clerking team

In this Bulletin, Nicholas Towers and Sarah Walker look at some of the issues relating to service during the COVID-19 lockdown.

Service within the Jurisdiction

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the Regulations’) may have an impact on the service of proceedings and notices. The Regulations have a significant impact during the “emergency period”, which period is simply defined as starting when the Regulations come into force and ending when the Secretary of State directs.

• Regulation 6 provides that “no person may leave the place where they are living without reasonable excuse”
• Regulation 4(1) requires the closure of any premises or part of premises used for the consumption of food or drink.
• Regulation 4(4) provides (4) that “A person responsible for carrying on a business or providing a service which is listed in Part 2 of Schedule 2 must cease to carry on that business or to provide that service during the emergency period.” This closes a large number of recreational businesses.
• By regulation 5, any business not listed in Part 3 of Schedule 2 must cease to carry on business except for providing deliveries or services received via email, website or post. The exceptions provided in Part 3 are for businesses such as pharmacies, car repair, petrol stations, hardware stores, therefore most services and non-essential retailers can no longer carry on business at their premises.

This cessation of business is, potentially, indefinite. Regulation 3 requires the Secretary of State to review the need for the restrictions and requirements every 21 days, but there is no fixed end date in the Regulations.

Court Proceedings

In circumstances where a party has not provided an address for service, CPR 6.9 sets out the places where it can effected validly. As a reminder:

Service on an individual being sued in the name of a business and in the business name of a partnership (entries 2 and 3) could be problematic. Often, their usual or last known residence will be unknown, and a claimant will be left with their usual or last known place of business. Fine so far, but CPR 6.9(3) says:

“(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”).”

The problem comes from Lexi Holdings Plc v Shaid Luqman & Others [2007] WLUK 557, where Briggs J held that where a person was serving a substantial prison sentence, service on his house was invalid:

“14. The third point is that in relation to a partner who, to the knowledge of the claimant, is serving a substantial, in this case 18-month, term of imprisonment at the time when service is effected on his former home, that is no longer his usual or last known residence. Counsel were unable to point me to any authority on that question. Mr Marshall submitted that a prisoner’s house is no less his residence when he is in prison. Mr Davern submitted that a purposive interpretation of the rule designed to ensure that service of legal documents comes to the attention of the person served is better achieved by interpreting the usual or last known residence of a long term prisoner as being the prison at which he is incarcerated.

15. In the absence of authority, it seems to me that Mr Davern’s purposive interpretation is the correct one. In those circumstances I conclude that service was not effected on the partnership consisting of Mr Luqman and Mr Bhatti by service on Mr Luqman’s house when he was to the knowledge of the claimant serving a substantial term of imprisonment.”

Applying this reasoning, if a business premises is closed indefinitely by the Regulations pending a direction of the Secretary of State under Regulation 3, then service at that location might also be invalid. Depending on the business, the individual may well now be trading from home rather than an office. This seems very likely in the case of modern services such as designing or consultancy work.

One response to this argument would be to distinguish Lexi Holdings on the basis that the prison sentence there was 18 months, and a defined period, whereas the shutdown under the Regulations, although of an unfixed duration, is unlikely to be that as long and therefore not “substantial” in the same way.

However, it would be better to avoid the argument altogether by effecting personal service, if possible, or applying for permission to serve proceedings by email. Where the value of the claim is high these steps will be proportionate, and if limitation is an issue, they could be essential.

Landlord & Tenant Notices

A good example of the issues that can arise in service of landlord and tenant notices is a landlord’s counter-notice under s.42 of the Leasehold Reform Housing and Urban Development Act 1993. The act itself provides little guidance on the service. S.99 merely states that:

“Any Notice required or authorised to be given under this Part (a) shall be in writing, and (b) may be sent by post.”

The courts will then turn to s.7 of the Interpretation Act 1978 for further guidance. It states that:

“Where an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

In Calladine-Smith v Saveorder Limited [2011] EWHC 2501 (Ch), Mr Justice Morgan found that the reference to “unless the contrary is proved” refers to the delivery and receipt of notices. The burden of proving the notice was not received lies on the recipient (and is on the balance of probabilities). Nevertheless, in the current environment and with the clear government legislation, it is easy to see how a court might be satisfied that a notice served on a tenant’s closed business premises had not actually be received by the tenant.

Ultimately s.99 is permissive, it only provides that the notice may be served by post. Therefore, there are likely to be alternatives that can be explored such as any contractual service provisions, seeking agreement with the tenant in relation to service or effecting personal service (possibly even at the business address).

Service of notices governed by s.196 of the Law of Property Act 1925 (such as most s.146 notices) is likely to be more straightforward. Here, provided the relevant steps for service are taken, there is no question about whether or not it was actually received (see Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573 and Kinch v Bullard [1999] 1 WLR 423 for examples). However, do note that if the s.146 notice relates to a breach of a covenant or agreement to put the premises in repair, s.18(2) of the Landlord and Tenant Act 1926 imposes a further requirement on the landlord to prove that service of the s.146 notice was known to the tenant (or other relevant person).

There are all sorts of other service issues, including arising in relation to other contractual notices and insolvency. Each case does turn on its specific facts so if you require particular assistance, please do not hesitate to get in touch.

Service out of the Jurisdiction

We are also aware that the Foreign Process Section of the High Courts of Justice is currently closed. This has posed a considerable problem for service of civil and commercial matters on EU-domiciled defendants because the scheme of service imposed by the Service Regulation (Regulation (EC) No 1393/2007) is mandatory and exhaustive. For a view of some of the issues see Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB).

Some proceedings may still be able to be served where appropriate “competent persons” are in place or in the case of EU motor insurers, they have claims representatives in the UK. However, at present there is no general solution and it may prove impossible to validly serve other proceedings.