Personal service has always been a challenge for social housing providers. In anti-social behaviour injunctions and committal proceedings, defendants may stop engaging, avoid answering the door, move between addresses, or simply refuse to accept service.
As a result, we are increasingly asked: “We probably won’t be able to serve on this one. Can we ask for alternative service?”
Often, the answer is not yet.
Before considering a CPR 6.15 application, social landlords should ensure they have exhausted all reasonable avenues for service and can evidence why the proposed alternative method is likely to bring the proceedings to the defendant’s attention. It is therefore useful to understand what the court is likely to expect, the practical steps that should be taken before an application is made and the considerations that can significantly improve the prospects of success.
The starting point is that both injunction and committal proceedings generally require personal service.
Injunction applications
Under CPR 65.43(5):
“In every application made on notice, the application notice must be served, together with a copy of the witness statement, by the claimant on the defendant personally.”
CPR 65.43(6) further provides that the defendant must generally be given at least two clear days’ notice of the hearing.
For social landlords seeking urgent anti-social behaviour injunctions, this can create obvious practical difficulties where a defendant is actively avoiding engagement or has become difficult to locate.
Committal applications
The position is similar for contempt proceedings.
CPR 81.5(1) provides that, unless the court directs otherwise, a committal application and supporting evidence must be served personally on the defendant.
The courts will also ordinarily expect defendants to be given adequate notice of the application, and if adequate notice has not been given, there is a strong risk of adjournment.
Given the potentially serious consequences of committal proceedings, including imprisonment, the courts are understandably cautious about dispensing with personal service requirements.
Alternative service applications: The legal framework
Where personal service cannot realistically be achieved, CPR 6.15 gives the court power to permit service by an alternative method or at an alternative place.
Applications may be made either:
- prospectively, before service takes place; or
- retrospectively, asking the court to validate steps already taken.
Any application must be supported by evidence and the court must be satisfied that there is a good reason to authorise alternative service.
As the Supreme Court confirmed in Barton v Wright Hassall [2018] UKSC 12, the court’s focus is not simply whether service has proved difficult. The real question is whether the proposed method is likely to bring the proceedings to the defendant’s attention.
The principle, however, remains unchanged: the court must be satisfied that the defendant is likely to become aware of both the existence and contents of the proceedings.
Can we apply for alternative service?
In practice, this is often the wrong first question.
A better question is: What have we done to try to serve the defendant so far?
Before considering a CPR 6.15 application, social landlords should first ask whether they have exhausted all available information and lines of enquiry.
For example:
- Do you have an email address?
- Do you have a mobile number?
- Is the defendant active on WhatsApp?
- Do you hold details of a next of kin?
- Is there a support worker involved?
- Are there alternative correspondence addresses on file?
- Is the defendant continuing to engage with the landlord through another route?
The answers to those questions may not only assist with service itself but may ultimately provide the evidence needed to support an alternative service application.
Exhaust your options first
One of the most common reasons applications are adjourned or rejected is because they are made too early. Courts generally want to see that genuine attempts have been made to effect personal service before alternative methods are considered.
That often means instructing a professional process server and allowing sufficient opportunity for inquiries and attendance attempts to be undertaken.
In our experience, an application is going to be much stronger placed, where all options at service have been attempted. Process servers are often experienced in dealing with individuals who are difficult to personally service, and will often:
- Attend on multiple occasions
- Attend at different times of day
- Make enquiries with neighbours
- Telephone defendants from outside a property
- Send WhatsApp messages
- Leave messages requesting contact; and
- Use other available information to establish whether the defendant remains in occupation.
Often, the extra steps taken result in either successful service or the evidence necessary to support an application for alternative service.
Evidence, evidence, evidence
Where an application becomes necessary, the evidence will often determine whether it succeeds.
The supporting statement should clearly explain:
- What attempts have been made
- When those attempts were made
- Why those attempts failed
- What contact information is held
- What enquiries have been undertaken; and
- Why the proposed method is likely to bring the proceedings to the defendant’s attention.
The more detailed the evidence, the easier it becomes for the court to grant an application for alternative service.
The question the court really asks
Despite the volume of rules and case law surrounding service, many applications ultimately come down to a simple question:
Will the documents actually come to the defendants attention?
If the evidence demonstrates that they will, an application is likely to stand on much firmer ground. If not, the court may simply direct further service attempts, leading to delay, additional costs and the frustration of an avoidable adjournment.
A practical rather than procedural exercise
Although CPR 6.15 provides a useful tool where personal service proves difficult, successful applications are usually built on practical steps taken to service, rather than applications being treated as a standard procedural exercise.
The strongest applications tend to be those where landlords can demonstrate that every realistic avenue has been explored, every available source of information has been checked, and there is clear evidence that the proposed alternative method is likely to bring the proceedings to the defendant’s attention.
Put simply, the most persuasive CPR 6.15 application is often one where the evidence shows ‘’We’ve tried everything else first”.
If you would like to discuss further, please get in touch with our housing management team.