Dalescope Limited v Acorn Accumulation Limited

Her Honour Judge Evans-Gordon :

1. Dalescope Limited (“the appellant”) appeals against an Order of District Judge Swan sitting in the County Court at Clerkenwell & Shoreditch dated 30 January 2025. By that order the District Judge set aside a default judgment in claim no. K48YX624 and struck out the Claim Forms in that case and in possession proceedings under claim no. L03EC184. The basis for the District Judge’s order was that the Claim Forms had not been served on Acorn Accumulation Limited (“the respondent”) within the four-month time limit, no application for an extension of time having been made. The District Judge rejected the submission that service by posting to PO Box, 790 Orpington, Kent BR6 1EX (“the PO Box”) was good service being service at “Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction” pursuant to CPR 6.9(2), row 7 (“Row 7”). There is no appeal against the setting aside of the default judgment in K48YX624 or against the striking out of claim no. LE03EC184. Representation

2. The appellant was represented by Mr Luke Decker and the respondent by Mr Marcus Crosskell. I am grateful to both counsel for their assistance. Issue

3. The sole issue on the appeal, for which permission was granted by His Honour Judge Johns KC on 9 May 2025, is whether the PO Box was a proper place for service of the Claim Form on the respondent in K48XY624, within the meaning of CPR 6.9(2), Row 7. For reasons that have not been explained to me, there is no appeal against the striking out of the Claim Form in claim no. LE03EC184. Preliminary Issues

4. Before turning to the main issue, the respondent raises two preliminary issues. First, it observes that the appeal was brought 1 day out of time, being filed on 21 February 2025 when the 21-day time limit expired on 20 February 2025. It is submitted that the defect was not noticed by HHJ Johns KC in that he makes no reference to it in his Order of 9 May 2025 and that Order does not extend time for lodging an appellant’s notice. In the circumstances, it is said, the court has no power to hear this appeal absent a successful application for relief from sanctions. Secondly, it is submitted that both claims were, in any event, void ab initio or susceptible to being set aside on the basis that all relevant work was conducted or carried out, and signed, by paralegals or a chartered legal executive who were not authorised to conduct litigation. This conduct constituted a breach of the Legal Services Act 2007 , s.12(1) and s.14 . It is fair to say that Mr Croskell did not press these points in oral submissions.

5. As to the first issue, while it is true that HHJ Johns KC did not expressly extend time for lodging the notice of appeal, in my judgment, by necessary implication, he did extend time and simply omitted to mention it. As Mr Croskell points out, the court can only grant permission to appeal if the appellant’s notice is filed in time, which time includes any extension granted by the court. As has frequently been said by higher courts, one proceeds on the basis that a judge knows the law. It does not seem to me that a judge of HHJ Johns KC’s experience would have overlooked the law in this respect. I am satisfied that he intended to, and did, extend time by one day. It would be very unlikely that he would not have done so given the very short delay in filing the appellant’s notice. No doubt, had he been asked, he would have corrected his order under the ‘slip rule’ but the point was not raised, as far as I am aware, until it appeared in Mr Croskell’s skeleton argument.

6. As far as the second issue is concerned, it seems to me that it is not open to the respondent to take this point. What is being said, in effect, is that there is a different or additional basis for upholding the District Judge’s decision. This requires a respondent’s notice (CPR r.52.13(2)(b)). Again, to be fair, Mr Croskell did not press this point in oral submissions. Background

7. The appellant is the freehold owner of a long leasehold property known as Flat 3, 29 Alexander Grove, London N4 2LQ registered at HMLR under title number LN222480. The respondent holds the leasehold title which it acquired on 14 March 2016 for £1,400,000. It is a company registered in the British Virgin Islands (“BVI”). Its registered address is Trident Chambers, PO Box 146, Road Town, Tortola VG1110 (“Trident Chambers”). Its registered director is GVA Directors Limited (“GVA”), a private limited company, also registered in the BVI. GVA is administered through an agent whose address is c/o Fides Trustees SA, Rue de la Croix-D’Or 19, 1204 Geneva, Switzerland.

8. The respondent does not occupy the property but sublets it on assured shorthold tenancies. It uses a management/letting agent based in England known as Mr Declan Page, who acts as a consultant for Jem Management (Ground Rents) Ltd (“Jem”). The address registered at HMLR for the respondent is the PO Box address. That address is one established and managed by Jem and is used for its clients too. From time to time. Mr Page and Jem’s employees collect correspondence from the PO Box notwithstanding the fact that the facility was, apparently, discontinued by the Post Office in 2020. It seems that the Post Office did not inform Jem of the discontinuance of the service until 2024 and did not prevent it from collecting correspondence addressed to the PO Box.

9. On 22 February 2023, the respondent was registered at Companies House as an overseas entity with a correspondence address at Trident Chambers.

10. On or around 21 July 2023 the appellant issued a claim against the respondent under case number K48YX624 in which it sought arrears of ground rent and service charges in the sum of £4,371.57. That Claim Form was stamped “Solicitor Service” by the court office. However, the standard Notice of Issue form issued by the court to the appellant, on or around 24 July 2023, stated that the Claim Form had been served by the court by first class post. In the grounds of appeal, the appellant expressly relies on service by the court. There is no evidence or suggestion that the appellant or its solicitors served the respondent.

11. It is common ground that, if the Claim Form was served, it was posted to the PO Box address. The respondent states that it never received the Claim Form either at the PO Box or at all. Submissions

12. Summarising his skeleton argument, Mr Decker makes the following submissions: i) the wording of Row 7 is very broad and should not be restricted. It can include anywhere a company puts forward to the Land Registry as an address for service of notices relating to a property, including a P.O. Box address; ii) This court is bound by the decision in FBN Bank (UK) Limited v Mansell Ghana Limited [2019] EWHC 2833 (Comm) (“ FBN ”) in which Jacobs J held that a post office box address that had been specified in a facility agreement and had been used for correspondence by the defendant constituted good service. Even if not binding, it is a persuasive decision; iii) In Oldham Metropolitan Borough Council v Tanna [2017] 1 WLR 1970 (“ Tanna ”), the Court of Appeal held that an address for service given by a proprietor of land, as required by rule 315(1) of the Land Registration Rules 1925 and rule 198 of the Land Registration Rules 2003 is not restricted to service of notices and other documents under the Land Registration Acts but may be used as an address for service of other notices unless there is a statutory requirement to the contrary. Receipt of notices can constitute a P.O. Box as a place of business or a place where activities are carried out. In any event, it is evidentially significant; iv) South India Shipping Corporation Ltd v Export-Import Bank of Korea [1984] 1 W.L.R. 585 CA (“ South India ”), established that a ‘place of business’ within the jurisdiction does not require that a substantial part of the company’s activity is carried on at that place or that what activity is carried on must be more than incidental to the company’s main objects. Accordingly, it is submitted, a post office address for service of notices/documents is sufficient to constitute “a place of business of the company”; v) The District Judge accepted that the PO Box was used by Mr Page and Jem to receive correspondence. As Mr Page was the respondent’s agent, that constituted an activity by the respondent as an agent’s actions are attributed to its principal. Further, the address was given to the Land Registry as the respondent’s address, not that of its agent; vi) The policy underlying CPR Part 6 is to enable service of proceedings in the modern world where companies may not have a physical presence other than a mail handling or PO address – or even only a virtual address. It would also undermine the provisions of the Land Registration Rules by allowing overseas property owners to be immune from domestic service of proceedings.

13. Mr Croskell submits that FBN is distinguishable because service had been effected on a PO Box in Ghana which was the defendant’s registered address. There was no discussion or analysis relating to CPR 6.9 and the court was not concerned with service on a HMLR registered address. He relies on a contradictory decision of HHJ Matthews in Smith v Russell Malvern Ltd [2020] EW Misc 20 (CC) (“ Russell Malvern”) which held that a person cannot carry on a business at a PO Box address although they may carry on business through such an address. He also relies on authorities to the effect that service may not be effected on a property owner at premises which are rented out to third parties ( O’Hara v McDougall [2005] EWCA Civ 1623 (“ O’Hara” ), which case did not relate to CPR6.9, Row 7 as the Defendant was a natural person); or on a subsidiary company of a defendant unless that company or person is the defendant’s representative and is carrying out that company’s business at some fixed place of business ( Hand Held Products Ltd v Zebra Technologies Europe Ltd [2022] EWHC 640 (Ch) ) (“ Hand Held ”). Mr Croskell questions whether the Claim form was ever, in fact, posted to the PO Box.

14. Following the hearing, I had an opportunity to check the court file and discovered that the court had not served the Claim Form. This was not known to the parties conclusively during the hearing although Mr Croskell did point to the “Solicitor Service” stamp on the claim form in his submissions. In the interests of giving the appellant an opportunity to be heard on the point, I sent the information and my preliminary view on the effect of this to the parties and invited them to make submissions before sending out my draft judgment. Essentially, Mr Croskell says that I should take the contents of the court file into account and find that the lack of service is fatal to the appeal. Mr Decker says that the court below made a finding that the claim form was served by the court, there is no appeal against that finding therefore it is not open to me to determine the appeal on that basis. I have considered those submissions in reaching my decision.

15. District Judge Swan proceeded on the basis that the court had served the claim Form by posting it to the PO Box. At paragraph 3 of his judgment, he first records the facts in relation to the red “Solicitor Service” stamp and covering letter asking the Claim Form to be returned to the solicitors for service. He also notes an unpursued application for substitute or alternative service. He then goes on to say “Nevertheless, when the proceedings for the arrears of service charges and ground rent were eventually issued and served by the Court, they were served at the address for service given by the claimant for the defendant at [the PO Box]”. If this constitutes a finding, in the sense of weighing the evidence and arguments and determining a factual matter, then I must proceed on that factual basis as the finding has not been appealed. This seems to me to be absurd but may be the law. However, I am not satisfied that the District Judge did make a clear finding as to service. The real argument concerned whether the PO Box address fell within Row 7.

16. In my judgment, in light of the contents of the court file, it is clear that the Claim Form was never posted to the PO Box by the court. This should have been obvious to the Claimant, or more properly, its solicitors, when they received a sealed Claim Form stamped in red with the words “Solicitor Service”. CPR Part 7.5 requires a claim form to be served within the jurisdiction “before 12.00 midnight on the calendar day four months after the date of issue”. Failure to serve within the stipulated time means that the Claim Form becomes invalid or void, as numerous cases have held and can no longer be served. In those cases, the claim was struck out. The court has the power retrospectively to extend time under CPR 7.6(3), but no such application has been made in this case. The rules require actual service of a Claim Form, a claimant’s belief that it has been served, no matter how well-founded, cannot compensate in a case where there has not, in fact, been service.

17. While the Claimant might fairly have been confused as to service because of the contents of the statement that the Claim Form had been served by the Court in the Notice of Issue, in my judgment, enquiries should have been made to establish where or the court had, in fact, served the Claim Form. That, it seems to me, is the end of the appeal as the Claim Form was not posted to the PO Box by anyone and therefore was never served. Allowing the appeal on the basis that service to a PO Box is good service would not help the Claimant ultimately as the Claim Form never reached the PO Box.

18. In case I am wrong about that, or it is not open to me on appeal, I will consider the merits of the arguments on service at a PO Box address.

19. I note that FBN was a one-sided case in the sense that the Ghanaian defendant company did not engage in the proceedings at all. No contrary case was put before Jacobs J. This, of course, does not affect the binding nature of the decision. In my judgment, however, FBN is not a binding authority in relation to whether or not a PO Box address can constitute “a place of business” for the purposes of Row 7, at least within this jurisdiction. My reasons for saying this are as follow: i) The case concerned service in Ghana not in England & Wales. While Jacobs J made copious reference to what constitutes good service in this jurisdiction, technically, they would appear to be obiter. ii) Jacob J’s primary finding was that service was effected personally by a local bailiff at an office of the defendant company in Ghana to which the bailiff had been directed by the defendant’s Ghanaian lawyers. This constituted personal service within the meaning of CPR 6.3. That, he said, was sufficient [14]. He also held that the claim had been personally served on the defendant by leaving it with the company secretary, which is sufficient under CPR 6.5(3)(b). FBN was not a case which depended on service only by post to a PO Box but one where the defendant had been served and/or provided with the Claim Form by more than 5 other means; iii) At [15] of his judgment, Jacobs J identified an alternative means of service as a PO Box on the basis that it was an address specified in the facility agreement made between the parties (although it is not clear for what purpose) and the defendant had used that PO Box address in correspondence. Jacobs J also referred to postal service at a second PO Box address in Ghana but does not identify any particular use of that PO Box address by the defendant [17]. The defendant was not represented before Jacobs J. and there was no argument on the issue. Nor was there any discussion or analysis as to why a PO Box address might be a place of business of the company;

20. In any event, FBN appears to me to be in conflict with a decision of Nugee LJ (sitting at first instance) in Hand Held Products Inc v Zebra Technologies Europe Ltd [2022] EWHC 640 (Ch) . In that case, Nugee LJ placed reliance on, or gained assistance from, the case of Adams v Cape Industries plc [1990] 1 Ch 43 (“ Adams ”). In Adams , it was held that an overseas entity would only be present in another jurisdiction if “it had established a fixed place of its own there or a representative of the overseas corporation had been carrying on the corporation’s business in the other country from a fixed place of business.” What was required was a position where “it could fairly be said that the overseas corporation’s business (whether or not together with the representative’s own business) has been transacted at a fixed place of business.” (see Hand Held at [23]). Hand Held served proceedings on a U.S. company, ZTC, at the offices of its English subsidiary, ZTEL. The issue was whether it could be said that ZTC was carrying on its activities at ZTEL’s offices or it was otherwise a place of business of ZTC. Notwithstanding many connections between ZTC and ZTEL’s offices, including overlapping directors/employees and copious public statements (see [26]-[51] of Hand Held ) that was not sufficient to establish that ZTEL’s offices were ZTC’s place of business in England and Wales. Nugee LJ considered whether the signing of a ‘declaration of conformity’ in relation to a scanner by ZTC’s representative, at ZTEL’s offices constituted them to be a place where ZTC carried on its activities. Nugee LJ held that there was no difference between the phrases “place of business”, applicable to a trading entity, and “place where it carries on its activities”, applicable to a non-trading entity, and the phrases should be interpreted accordingly [54]. It followed that the ZTEL offices were not a place where ZTC carried on its activities [57]. It seems to me that Hand Held requires a fixed place where activities or business are carried out by, or by a representative of, the overseas company or corporation. Neither Mr Page nor any other employee of Jem worked at the PO Box which was no more than a plastic box in a post office. He did nothing there other than occasionally collect post from the box. Any substantive work was carried out either at Jem’s offices or at some other place. The PO Box was nothing more than a postal or correspondence address. If the activities carried out in Hand Held were insufficient to establish a place of business or a place where the corporation carried on its activities, in my judgment, a plastic box in a post office does not constitute either a place of business or the carrying on of activities even if post is collected from it from time to time. Row 7 requires that business or activities are carried at or from a fixed place by the company/corporation or its representative ( Hand Held at [23] by reference to Adams ) that requires, in my judgment, something more than occasional receipt of post.

21. In my judgment, Tanna is of no assistance to Mr Decker either. That case concerned the service of notices under the Town and Country Planning Act 1990 (“TCPA”) at an address provided by the owner of the subject property to, and published in, the Land Register. Lewison LJ held that such an address was “the last known address for the proprietor for the purposes of the Local Government Act 1972 , therefore service of the TCPA notice at that address was good service”. While it is fair to say that Lewison LJ said, by reference to the Land Registration Rules 1925 and 2003, that the requirement for an address to be given to the Land Registrar and published, means that such an address “is not necessarily confined to internal administrative purposes.” [24] By this I understand him to mean it was not limited only to service of notices and other documents pursuant to the Land Registration Acts and/or Rules. At [28], he went on to say “I would hold that as a general rule, unless there is a statutory requirement to the contrary, in a case in which (i) a person (in this case the local planning authority rather than the council taken as a whole) wishes to serve a notice relating to a particular property on the owner of that property, and (ii) title to that property is registered at HM Land Registry, that person’s obligation to make reasonable inquiries goes no further than to search the proprietorship register to ascertain the address of the registered proprietor.” There is no mention of service of legal proceedings such as a Claim Form in Tanna or in any of the cases cited therein. In my view, Lewison LJ would be surprised to hear that he had been laying down rules or guidance as to the service of a claim form in Tanna . If he was, it is surprising that, in the nearly 9 years since Tanna , there does not appear to be any case in which such service of a claim form was held to be valid, solely on the basis of a Land Registry address. In any event, in my judgment, there is a statutory provision to the contrary. That is found in the Civil Procedure Rules which are made by statutory instrument under the Civil Procedure Act 1997 and the Courts Act 2003 . In my judgment those rules set out a complete regime governing service of originating civil proceedings and leave no room for importation of rules of service of other documents under other statutes unless expressly so provide, as in the Companies Act 2006 or the Limited Liability Partnerships Act 2000 although even this method of service is expressly provided for in CPR 6.3. In my judgment, unless the Land Registry address falls within one of the recognised places for service in the CPR, such an address may not be used for service of a claim form absent a court order.

22. South India is of no assistance either. It is certainly fair to say that the case established that a place of business does not require a company’s main business to be conducted from the relevant place of business, but it did require a fixed place of business (p.591E-H). In that case, the relevant corporation had an office in London, and it was conceded that it was carrying on activities at that office.

23. The policy underlying the service provisions in the CPR is make it clear where and in what manner claim forms may be served. The point is, as far as possible, to avoid arguments such as these. If the policy was to permit a wide range of potential places for service not mentioned in the CPR, the consequence would be to render the issue of whether service had been effected more uncertain. In my view, restricting service to the methods and places identified in the CPR would have no effect on the purpose of the Land Registration Rules which are directed at service of completely different documents.

24. For the reasons given above, the appeal fails and I dismiss it.