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Insights
14/04/2025
By Alice Reeves
The rules governing service of a Claim Form lie at the heart of civil procedure, ensuring that defendants are properly notified of proceedings and that claims progress efficiently and fairly. Yet, despite their seemingly rigid framework, disputes often arise as to the extent of a claimant’s duties when relying on a defendant’s ‘usual/last known address’ under CPR 6.9.
On appeal from District Judge Harrison, Her Honour Judge Truman handed down judgment in Nakiesha Aston v (1) Ryan Tew and (2) Alwyn Insurance Company1. Anthony Reddiford, instructed by Lyons Davidson Ltd, acted for the successful Claimant/Appellant.
On the Defendant’s application before District Judge Harrison, it was decided that the Claim Form had not been validly served on the First Defendant (D1); resultingly the claim was struck out under CPR 3.4(2)(c), and summary judgment awarded to the Second Defendant (D2) under CPR 24.
On appeal to Her Honour Judge Truman, it was the Claimant’s case that District Judge Harrison had erred in law by finding that the Claimant had to exercise ‘reasonable diligence’ to ensure, prior to serving, that the address she held for the Defendant remained the Defendant’s ‘usual residence’. The question at the heart of the appeal was a simple one, albeit the route to its resolution was not so straightforward; “What, if any, steps does a Claimant need to take to identify if an address that they hold for a defendant as his “last known residence” remains a valid address before relying upon it for the purposes of service of a claim form?”
The judgment provides important guidance on the boundaries of a claimant’s obligations, clarifying whether CPR 6.9 is anchored in reaction to known facts or demands proaction through implied diligence.
On 23 May 2018, the Claimant, aged 17, was a pillion passenger on D1’s motorcycle. The Claimant and D1 were known to each other. D1 negligently drove his motorcycle into a collision and the Claimant suffered injuries as a result. A letter of claim was sent on 3 July 2019.
On the 11 July 2019, D1’s insurer admitted liability but declined contractual indemnity, D1 therefore had to be served directly. The Claimant’s solicitors served D1 by post at his last known address, 2 Robin Close, Stoke-On-Trent (‘Robin Close Address’), on 27 July 2022. The last day for service was 5 August 2022.
The Robin Close address was the last known address to the Claimant and was the address given by D1 to the police. On 5 August 2022, the documents served on D1 were returned to the Claimant’s solicitors, marked ‘no longer lives here’. The Claimant promptly issued an application to extend the time for service, but this was later withdrawn on 15 August 2022 on the basis that service had been effected at what they believed at the time was D1’s current address, the Claimant having no reason to believe that D1 no longer resided there.
Under CPR 6.9 (2), the Claim Form must be served on a defendant who is an individual, at their ‘usual or last known residence’.
CPR 6.9 continues:
(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 affected.
(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.
(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant
(a) cannot ascertain the defendant’s current residence or place of business; and,
(b) cannot ascertain an alternative place or an alternative method under paragraph (4) (b).
Additionally, the following propositions of law apply in relation to Rule 6.9.
First, as established in Collier v Williams 2, it is the serving party’s knowledge that is material in the context of ‘last known residence’. Second, if the Claimant complies with the rules, valid service is effected even if the Defendant later shows they did not receive proceedings as they were not residing at the address at the time of service; ‘provided the claim form is dispatched for service within the time limits fixed by r.7.5, the normal consequences of good service then follow. The service cannot be impugned by the defendant’s showing that, nevertheless, the claim form did not come to their knowledge.’3 Third, an address cannot be a valid address for service if the Defendant had never resided there, regardless of how reasonable the Claimant’s belief to the contrary may be.
At the heart of Aston v Tew lay a fundamental issue of principle: does CPR 6.9 impose upon a claimant an obligation to take proactive steps to verify a defendant’s current address, or may a claimant simply rely on service at the last known address in the absence of any reason to believe the defendant has moved? This is the so-called constructive knowledge question, namely, whether a claimant will be deemed to have knowledge that a defendant had moved if such knowledge could have been acquired through reasonable enquiries.
In Aston v Tew, the Claimant served D1 at his last known address, the Robin Close address, in the absence of any further enquiries as to whether D1 still resided there. The Claimant’s case was that, having no reason to believe that D1 no longer lived at that address, CPR 6.9(3) was not engaged and no obligation to investigate arose.
Before District Judge Harrison, the Defendant advanced their position on two fronts:
In response, the Claimant maintained that that no such implied duty arises under the current wording of CPR 6.9. The correct position, it was argued, is that a claimant is entitled to serve at a defendant’s last known address provided they have no reason to believe the defendant no longer resides there. This interpretation finds support in the White Book 2023 at paragraph 6.9.4 which provides:
“Before the provisions in paragraph (3) and (6) of r.6.9 came into effect, there was some authority for the proposition that a claimant was required to make reasonable enquiries as to the defendant’s ‘current’ place of residence, before purporting to effect service at the defendant’s ‘last known’ residence. The new provisions make it clear that that duty only arises where the claimant has ‘reason to believe’ the matters referred to in paragraph (3).”
As suggested by the White Book notes, there are older appellate authorities that suggest that the Claimant may be fixed with constructive knowledge, but such authorities are built on the wording of the relevant rules in the CPR prior to its substantial amendment in 2008.
Nevertheless, the Defendant placed heavy reliance on authorities including Smith v Hughes, Marshall v Maggs, and the more recent decision of Boettcher v Xio, arguing that these cases provided clear guidance that the phrase ‘usual/last known residence’ imports a concept of constructive knowledge, that is, knowledge which a claimant could have acquired by exercising reasonable diligence.
By answering the constructive knowledge question in favour of the Defendant, District Judge Harrison found that an implied duty is imposed on Claimants.
The central issue on appeal to HHJ Truman, was to resolve whether there is an implied duty within CPR 6.9(2). In particular, the Court was required to consider whether a claimant must proactively investigate whether a defendant continues to reside at a usual/last known address prior to service.
Counsel for the Defendant submitted that the concept of ‘last known residence’ within CPR 6.9 imports an implied duty to take reasonable steps to verify that the address remains current, relying heavily on Smith, Marshall and Boettcher. Conversely, counsel for the Claimant submitted that the current CPR framework provides no express requirement for reasonable diligence unless CPR 6.9(3) is engaged, that is, unless the claimant has reason to believe that the defendant no longer resides at the address in question. The obligation to investigate, therefore, arises only in those circumstances expressly set out in the rules.4
As to whether any implied duty could properly exist within CPR 6.9(2), the Claimant advanced four principal arguments:
a) Such a provision would overlap with the express provision in 6.9 (3);
b) Imposing an implied duty would involve a substantial re-writing of the rules which the Court of Appeal expressly criticised in Marshall v Maggs;5
c) If the Rules Committee intended to impose a duty to use ‘reasonable diligence’ it could have easily amended the rules to do so when they were amended to incorporate 6.9(3) in 2008; it did not do so.
d) It would render the ‘service at last known residence’ (which is expressly permitted by 6.9(2)) substantially redundant because if ‘reasonable diligence’ was required, it will be possible to ascertain if the defendant still lives at the address prior to service.
More broadly, the Claimant contended that the imposition of a general requirement to investigate in every case would undermine the clarity and certainty which the CPR requires. The very concept of service at a defendant’s last known address, as permitted by CPR 6.9(2), would be rendered largely useless if claimants were universally required to verify the currency of that address beforehand.
Whilst the circumstances in which enquiries may be appropriate will necessarily be fact-sensitive, for example, depending on the time elapsed since a claimant last had contact with a defendant; there exists no authority establishing a general duty to undertake reasonable enquiries or exercise reasonable diligence in the absence of reason to believe the defendant has moved. This interpretation is further supported by the commentary of the White Book 2023 at paragraph 6.9.4.
The Claimant’s appeal centred on the argument that the judgment of District Judge Harrison was wrong to accept as good law the principles set out in Boettcher v Xio (UK) LLP. Boettcher, a decision by a Deputy High Court Judge, was handed down after the introduction of CPR Rule 6.9(3)-(6). In Boettcher, the Deputy High Court Judge stated:
“Based on these authorities, the following observations may be made about the concept of the defendant’s last known residence in order to test the validity of service at that address: …
(5) Knowledge of the defendant’s residence in this context refers to the claimant’s actual knowledge or constructive knowledge, i.e. knowledge which the claimant could have acquired exercising reasonable diligence. An honest or even reasonable belief is not sufficient if the defendant never resided at the relevant address.”
Relying on this principle, Defendant argued that using a four-year-old police report or relying on an address where the individual lived years ago could not constitute a reasonably diligent method for ensuring effective service.
Counsel for the Claimant submitted that observation made by the Judge in Boettcher failed to distinguish between cases where the claimant knew the defendant no longer resided at the address in question and those where the claimant did not have such knowledge, an important distinction drawn in Smith. Moreover, the judgment did not consider the implications of the 2008 amendments to the CPR. The Judge in Boettcher did not hear argument on the significance of these amendments, nor on whether a duty of ‘reasonable diligence’ had been implied by Rule 6.9(2). As a result, the ‘observation’ made by the Deputy High Court Judge was an incorrect/incomplete statement of the law and was, in any event, obiter.
Counsel for the Claimant submitted that the proper interpretation of CPR 6.9(2) and (3) aligned with the reasoning in Smith v Hughes and Marshall v Maggs, where the suggestion of an implied duty only arose in situations where the claimant knew the defendant no longer resided at the address.
In reaching her decision, HHJ Truman emphasised that the starting point for her analysis must be the terms of CPR 6.9. Under this rule, a Claimant must serve a Defendant at his usual or last known residence. The Judge held:
First, the rule itself does not expressly require a claimant to check or investigate whether the defendant still resides at the address. Second, the obligation to take further steps only arises if the claimant has reason to believe that the defendant no longer lives at the address. Third, it would have been easy for the rule-makers to include an express requirement for reasonable diligence, but they did not. Finally, imposing such an implied obligation would amount to rewriting the rule, which the Court should avoid.
HHJ Truman referenced Smith v Hughes, where the Court of Appeal upheld the validity of service at the last known address, even though the Claimant knew the Defendant had not been at that address for two years and had not made any inquiries to ascertain a more current address. The Judge noted that it would be inconsistent to invalidate service in cases where the Claimant did not know the Defendant had moved and made no efforts to inquire about a new address.
Most significantly, HHJ Truman identified the importance of CPR Rule 6.9 following the Court of Appeal’s decisions in Smith v Hughes and Marshall v Maggs, as well as its impact on the relevance of the Court’s obiter. In Boettcher, similar comments about reasonable diligence were made obiter, with no consideration given to the rule change or the potential distinction between a claimant who knows the defendant has moved and one who does not. Despite previous case law, such as Smith v Hughes, Marshall v Maggs, and Boettcher, where obiter remarks were made regarding reasonable diligence, HHJ Truman concluded that District Judge Harrison erred in law by giving undue weight to these comments, as they do not override the clear wording of the rule, particularly after its amendment.
Thus, based on the wording of CPR Rule 6.9, HHJ Truman concluded that if a claimant can legitimately assert, they had no reason to believe the defendant no longer resided at the address, the claimant is within their rights to rely on that position, as is permitted by the rules.
HHJ Truman’s judgment in Aston v Tew provides welcome clarity on the construction of CPR 6.9, particularly regarding a claimant’s obligations when identifying a defendant’s last known address for service. This article’s central question – whether CPR 6.9 requires a reactive or proactive approach – has, for now, been decisively answered in favour of the former.
Rejecting any implied duty of reasonable diligence absent reason to doubt a defendant’s residence, the judgment restores certainty to the CPR’s service provisions. It reaffirms that CPR 6.9 imposes defined, conditional obligations, not a general duty of enquiry, and resists judicial rewriting of the rules.
While some may view this as affording claimants a procedural advantage, the judgment recognises that broader policy concerns lie with the Rules Committee, not the Judiciary. Unless and until the rules change, the position is clear: unless a claimant has reason to believe otherwise, they may serve at the last known address without further investigation.
Nonetheless, the practical implications for practitioners are not to be understated. Whilst the rules may not mandate proactive enquiries in every case, prudence and good litigation practice are encouraged in favour of making reasonable checks where there is any objective uncertainty. Ultimately, however, as Aston v Tew confirms, CPR 6.9 is grounded in the claimant’s actual state of knowledge, not constructive knowledge derived from hypothetical diligence, and it is this reactive model which presently governs effective service.
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