The Dekagram 2nd May 2023

• Published date: 15 May 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Ms Sarah Prager and Henk Soede

For an area of law that's supposed to be perfectly intuitively straightforward, jurisdiction certainly generates a lot of case law, doesn't it? This week Henk Soede examines another recent case on service and jurisdiction, whilst Sarah Prager grapples with the judgment of the Supreme Court in a case on vicarious liability, another one of those areas practitioners find universally bothersome.

Service, Jurisdiction and Related Matters

In Dr Markus Boettcher v XIO (UK) LLP (In Liquidation) & Ors [2023] EWHC 801, Peter Macdonal Eggers KC, sitting as a Deputy High Court Judge (the "Judge"), considered a host of issues relevant to service of proceedings both within and outside of the jurisdiction. This note focuses on two aspects of the decision, namely, the decision as to 'last known residence' within the meaning of CPR 6.9 and the defendants' application for a stay on the grounds that Germany was clearly and distinctly the more appropriate forum.

Background

The claimant sought damages for misrepresentations which allegedly induced him to enter into a contract of employment with the first defendant. The claim was brought in deceit, under the Misrepresentation Act 1967, and for breach of a tortious duty of care.

On 24^th September 2021, the claimant's claim was issued against Xio UK, Mr Geyer and Mr Pacini. On 1^st October 2021, Mr Geyer was served with the claim form at an address in Savile Row ("33SR"). On the same date, Mr Pacini was served with the claim form at an address in the Shard. In the event, Mr Pacini did not dispute the validity of service within the jurisdiction.

On 13^th October 2021, the claimant made a without notice application for permission to serve Mr Geyer at his address in Switzerland and Mr Pacini at his address in the USA. On 19^th October 2021, Mr Geyer and Mr Pacini acknowledged service and intimated an intention to contest jurisdiction.

On 26^th October 2021, Waksman J made an order permitting the claimant (on his without notice application) to serve the proceedings on Mr Geyer and Mr Pacini out of the jurisdiction. Both parties subsequently sought to set aside the order of Waksman J.

A number of issues fell to be determined: see [38] and [39]. This note focuses on two specific issues, namely, the analysis of whether 33SR was Mr Geyer's 'last known residence' within the meaning of CPR 6.9(2) and the defendants' application for a stay on the grounds that Germany was clearly and distinctly the more appropriate forum.

Service within the jurisdiction

The claimant alleged that 33SR was Mr Geyer's last known address and, therefore, that service was valid pursuant to CPR 6.9. CPR 6.9 permits service on an individual at the individual's "usual or last known address", provided that CPR 6.5(1), 6.7 and 6.8 do not apply: CPR 6.9(1)-(2). Further, CPR 6.9(3)-(6) provide for additional requirements:

"(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.

(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)."

The claimant submitted that service on Mr Geyer at 33SR was valid: see [51] for the fuller arguments as to why. Mr Geyer submitted evidence (which was uncontested) that he had surrendered his lease on the flat on 31^st March 2018 and had ceased residing there from 1^st January 2018. It was submitted that, inter alia, by August/September 2021 the claimant knew that Mr Geyer resided in Switzerland, having previously resided in Switzerland, and did not reside at 33SR: see [53].

At [49], the Judge extrapolated the following principles from the authorities on the concept of the defendant's 'last known address':

"(1) The claimant must establish that there is a good arguable case that the address at which service was effected was the defendant's last known residence. This means that, on the evidence available, the claimant has the better of the argument on this issue than the defendant.

(2) The defendant's last known residence need not be...