England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
Judge Yelton
District Judge Silverwood-Cope

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 November 2004

Lord Justice Brooke :

1. This is an appeal by the defendant Richard Benjamin Adam against an order made by Judge Yelton in the Southend County Court on 2^nd April 2004 whereby he allowed the claimant Mohammed Akram's appeal against an order made by District Judge Silverwood-Cope in the same court on 11^th December 2003. The district judge had directed that an order for possession made on 16^th September 2003 by Deputy District Judge Cooksley in the absence of the defendant be set aside. This second appeal raises an important point of practice which was identified but expressly not decided by this court in Hackney LBC v Driscoll [2003] EWCA Civ 1037 at [25], [2003] 1 WLR 2602. I said in my judgment in that case:

"For my part I would prefer to express no views about the correct legal analysis when a 'defendant' avers that he had no notice of proceedings against him at all, so that he might be regarded as a 'stranger' to them (see the quotation from Russell LJ's judgment in White v Weston [1968] 2 QB 647 in para 14 above). The resolution of that issue will have to await another day."

2. Mr Adam was since 1983 the Rent Act protected tenant of a large rear ground floor room (with shared kitchen and bathroom) at 5 Moulsham Drive, Chelmsford. In 1996 Mr Akram bought this house subject to Mr Adam's tenancy, and he has lived in other parts of the property since then. In May 1997 he embarked on possession proceedings which in due course elicited a defence and counterclaim from Mr Adam. In May 2001 the particulars of claim were amended to include as a ground for possession the proposition that Mr Akram was willing to provide suitable alternative accommodation in the form of a self-contained flat incorporating its own kitchen and bathroom.
3. On 19^th October 2001 Judge Brandt held that in general terms these proposals were reasonable. In fact he expressed the view that they were entirely sensible because the two men could not get on. He went on to give ancillary directions in the hope that the parties would agree the detail of the proposed works and how they might be carried out. The parties, however, were unable to reach agreement, and on 16^th January 2002 Judge Brandt made a further order approving the claimant's plans and directing the defendant to provide him with appropriate access so as to enable the plans to be implemented. The defendant appealed against the second part of this order, and on 6^th December 2002 this court set it aside on the grounds that the judge had no jurisdiction to make it.
4. It is noteworthy that in the informal discussion which followed the delivery of his judgment in October 2001 Judge Brandt made it clear that service on the defendant at his sister's address in Surrey would constitute good service on him for the purposes of those proceedings. This observation was never, however, formalised in a court order.
5. On 17^th July 2003 the claimant instituted fresh proceedings. They were founded on the same proposition, but on this occasion the defendant was offered a weekly tenancy of a rear small room on the ground floor of the premises (with permission to store his belongings in the rear large room while the works were being carried out), on the basis that he would be offered a protected tenancy of the new self-contained flat once the conversion works had been completed. On 18^th July 2003 the claimant's solicitors posted the claim form and the particulars of claim by first class post to the defendant at 5 Moulsham Drive. In due course Judge Yelton held that this constituted good service pursuant to CPR 6.5(6) which provides that:

"(6) Where –

(a) no solicitor is acting for the party to be served; and

(b) the party has not given an address for service,

the document must be sent or transmitted to, or left at, the place shown in the following table."

The table includes the following entries:

Nature of party to be served	Place of Service
Individual	Usual or last known residence

6. CPR 6.2(1)(b) permits service by first class post. Nothing in this case turns on the date when the claim form was deemed to be served pursuant to CPR 6.7(1), although there was no dispute that this would have been 20^th July 2003, the second day after it was posted.
7. The claim form contained a notification that the claim would be heard on 16^th September 2003, and on that day Deputy District Judge Cooksley decided in the absence of Mr Adam that it was reasonable to make a possession order. He directed possession on or before 23^rd September 2003.
8. On 20^th October Mr Adam came to learn about these proceedings and the possession order when he returned to the premises to find that a warrant for possession had been executed and that he was unable to gain access to his bed-sitting room which was filled with large quantities of his personal belongings. On 21^st October he applied for an order that the possession order be set aside because he did not receive the claim form or particulars of claim and was not aware of the hearing that had taken place. In a supporting witness statement he said that letters addressed to him at 5 Moulsham Drive were taken by his landlord and that he did not receive them. Letters from the county court and the Court of Appeal had been sent to him at his sister's address in Surrey. His landlord's solicitors knew this address, but they did not use it on this occasion. If he had known about the proceedings he would have filed a defence and counterclaim. He therefore asked that the possession order be set aside immediately to enable him to do so.
9. This application came before District Judge Silverwood-Cope on 11^th December 2003. By this time the conversion works had been completed and the new flat was ready for Mr Adam's use, but he remained adamant that he wanted the possession order set aside even though in theory this would render him liable to pay rent from the time that possession had been obtained. In addition to written evidence the district judge heard oral evidence from both Mr Akram and Mr Adam, and we have been provided with a transcript of the proceedings before her.
10. In her judgment the district judge said that there had been clear and well-known difficulties with postal service to Mr Adam at 5 Moulsham Drive, with allegations and counter-allegations about what happened to his post when it was delivered there. These complaints had been manifested since 1997.
11. On the one hand Mr Akram denied that he was responsible for the post going astray, and said that he endeavoured to ensure that Mr Adam's post was received by him. On the other hand Mr Adam denied that this was the case. In the past he had made a special arrangement with the regular postman that he would keep Mr Adam's post for him at the depot, but sometimes these arrangements did not work because a reserve postman was on duty. The district judge described the direction Judge Brandt had made in October 2001 to mitigate these difficulties (see para 4 above). She said that although these were new proceedings, they had a continuum and connection with the previous proceedings, and that one could really not be divided from the other:

"The claimant therefore should be alert to these difficulties regarding service and regarding postal service because they were germane in the previous proceedings and Judge Brandt tried to eliminate those problems."

12. She said that notwithstanding those known difficulties Mr Akram asserted that there had been proper service on the defendant at 5 Moulsham Drive. She recorded his evidence to the effect that Mr Adam's room was in such a mess that post pushed under the door could have easily been overlooked. She also noted a suggestion in the evidence that the bailiff had noticed a pile of post in the doorway to Mr Adam's room. On the other hand, she said that in May 2003 Mr Adam had seen a notice to quit on his door, so that he was on notice then that something was happening. In the past he had been alive to proceedings and had attended court when necessary.
13. The district judge then found as a fact that Mr Adam had been at his sister's address where he was helping her to look after their elderly, ill mother, and that Mr Akram had known that Mr Adam had not been at the premises for some time. She recorded Mr Adam's evidence that he came back to 5 Moulsham Drive off and on to check that everything was all right, and that it had been on one of these visits that he saw the notice to quit.
14. She then expressed her conclusions in these terms:

"I have to say that bearing in mind the history of this case and the previous proceedings that have been before the county court and subsequently before the Court of Appeal when the address for service was given, it is not in all the circumstances of this case sufficient to regard that service was effected by a delivery either by postman or by Mr Akram himself, bearing in mind the allegations and counter-allegations that have been made, being responsible for pushing documents under the door to the defendant's room at 5 Moulsham Drive, so I consider that there has not been good service and so in these circumstances the defendant has been deprived of being able to attend the court on the hearing if he so wished, filing a defence within the time that is allocated for that."

She therefore made an order setting aside the judgment and directing that the claim be re-served on the defendant at his sister's address for service.

15. It is now necessary to say a little more about the allegations and the counter-allegations that were made. Mr Adam said that his arrangements with a postman that his letters should be kept for him at the delivery office came to an end in 1999-2000 when the regular postman had moved somewhere else. Because he had never used the address at 5 Moulsham Drive when he wanted letters sent to him, it did not matter very much that he never received letters at that address. In December 2002, however, he was working as a temporary Christmas sorter for the Royal Mail and he learned that other people were receiving payslips through the post and he was not. The following week he succeeded in intercepting the letter containing his payslip before the postman put it through the door, and he arranged that the following week he would collect the equivalent letter from the delivery office. In September 2003, at about the same time as the possession order was said to have been posted to him, the Job Centre told him that they had sent a letter to him which he did not in fact receive. It was not at the delivery office, and it had not been pushed under his door. He said that Mr Akram claimed that he slipped letters under the door but he did not.
16. In a witness statement Mr Akram maintained that he understood from the postman that Mr Adam's post was held at the collection office for him to collect personally for him, and he exhibited a signed statement from the present postman to this effect. He said that on occasion Mr Adam's post was given to him in error. If he could catch the postman he would give it back to him to take back to the collection office. Otherwise he would push it under the door of Mr Adam's room. He explained to the district judge that he did this to prevent his nephews and nieces from tearing Mr Adam's letters up when they came to the house.
17. Mr Adam did not accept what the present postman said. He had never paid a fee for a collection service and he said that Mr Akram had himself been a postal worker for some time, so that he might have been able to persuade the present postman to attest to arrangements that had not in fact been made. He said he had been to the collection office every few weeks to see if anything had turned up, but there had been nothing for him there for the last nine months. In a witness statement he said that after the regular postman left, the new postmen would only keep letters for him after he had specifically told them he was expecting a letter and asked them to.
18. It is unfortunate that the district judge did not make clear findings of fact in the face of this evidence. But it appears that she found that although the claimant's solicitors had posted the letter to Mr Adam at 5 Moulsham Drive it was not delivered to Mr Adam's room nor retained for him at the collection office pursuant to any arrangements he had ever made with the postman.
19. Although this court had decided the five appeals under the title Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656, [2003] 1 WLR 2441 on 14^th May 2003, and the case was reported on 31^st October 2003, the district judge does not appear to have appreciated the possible relevance of this authority, and it does not appear to have been drawn to her attention at the hearing.
20. Judge Yelton allowed Mr Akram's appeal on two grounds. He held that service by first class post to Mr Adam at 5 Moulsham Drive constituted good service, and that in any event the district judge ought not to have set the possession order aside (even if she thought that there had not been good service) because Mr Adam had no defence to the proceedings:

"The whole thing is a nonsense…because Mr Adam is saying the order should be set aside because he did not consent to the work being done. However, now the work has been done he has alternative accommodation available to him which Judge Brandt has already said is suitable alternative accommodation."

21. The point which Mr Adam would have wished to make, if he had received notice of the proceedings, was that the small rear room he was being offered while the conversion works were being carried out did not constitute suitable alternative accommodation within the meaning of the Rent Act, even though he was being allowed the use of his original larger room for the purposes of storing his overflow property during this period. Judge Yelton did not refer to this point, but since Mr Adam was living with his sister at the material time it was not a very good one when set against the background of these protracted proceedings.
22. Judge Yelton's decision was based on the proposition that CPR 6.5(6) prescribes that where no solicitor is acting for an individual party who has not given an address for service, a document to be served on him must be sent or transmitted to or left at his usual or last known residence (see para 5 above), and that there was no doubt that 5 Moulsham Drive was Mr Adam's usual residence. The judge discounted the effect of the informal direction which Judge Brandt had made about using Mr Adam's sister's address as his address for service on the grounds that that direction had been given in the previous proceedings.
23. It is reasonably clear that the decision which influenced Judge Yelton was the judgment of this court on the appeal in Smith v Hughes which was reported under the title Cranfield v Bridgegrove Ltd (see para 19 above) at paras 90-104. In that case Mr Hughes, an uninsured driver, had been involved in a road traffic accident in December 1997 in which the claimant was injured. When the Motor Insurers' Bureau ("MIB") became involved with the claim, they instructed inquiry agents who reported to them in April 1999 that Mr Hughes's address in the electoral register was an address in Birchwood, near Warrington, but that he had left this address, and his current whereabouts were unknown. On 25^th May 1999 the MIB passed this information onto the solicitors acting for the claimant's mother, who had instructed the same firm in connection with her own claim. On 10^th April 2001, when proceedings were instituted, the claim form and particulars of claim were sent by first class post to Mr Hughes at the Birchwood address. These documents were not returned to them by the Post Office. On 15^th August 2001 the MIB was joined as second defendant, and they took the preliminary point that the claim form had not been served on Mr Hughes within the four months permitted for service.
24. A district judge decided that the claim form had not been served on Mr Hughes on 12^th April 2001 and dismissed the claim. This court allowed the claimant's appeal. Dyson LJ, who gave the judgment of the court, said at paras 101-103:

"101. It seems that there is some doubt as to the meaning and effect of rule 6.5(6) where service is effected on an individual at his last known residence. The notes to the 'White Book', Civil Procedure (Autumn 2002), vol 1 p 133 include the following: 'The CPR do not make it clear whether service by post to a defendant's last known address at which he no longer resides, and the defendant does not in fact receive the claim, is good service.'

102. In our judgment, the position is clear. There are two conditions precedent for the operation of the provisions of rule 6.5(6), namely that (a) no solicitor is acting for the party to be served, and (b) the party has not given an address for service. If those conditions are satisfied, then the rule states that the document to be sent must be sent or transmitted to, or left at, the place shown in the table. In the case of an individual, that means at his or her usual or last known residence. The rule is plain and unqualified. We see no basis for holding that, if the two conditions are satisfied, and the document is sent to that address, that does not amount to good service. The rule does not say that it is not good service if the defendant does not in fact receive the document. If that had been intended to be the position, the rule would have said so in terms. Nor can we see any basis for holding that, if the claimant knows or believes that the defendant is no longer living at his or her last known residence, service may not be effected by sending the claim form, or leaving it at, that address. That would be to fly in the face of the clear words of the rule. The rule is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied.

103. As we have said, there is no suggestion in this case that 45 Whitworth Close was not Mr Hughes's last known residence. If the MIB had disputed the claimant's claim that this was Mr Hughes's last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant's actual knowledge, or is it directed at the knowledge which exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal."

25. In the appeals decided under the title of Cranfield v Bridgemore Ltd this court was following in the footsteps of another division of the court in Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2002] 1 WLR 997 who were determined to create a workable regime for service pursuant to the new procedural code in CPR Part 6. Those cases were devoted to the question whether a claim was or was not served on a defendant within time for the purpose of defeating a contention that the claim was statute-barred. They were usually concerned with questions relating to the time of deemed service, although Smith v Hughes was concerned with whether there had been deemed service at all within the meaning of the rules.
26. They were not, however, principally concerned with examining the position of a defendant who becomes aware that judgment has been entered against him in proceedings, or at a hearing, of which he had no knowledge and wishes to have the judgment against him set aside as of right, without any question of a judge being entitled at that stage to do as Judge Yelton did, and consider the merits of the suggested defence pursuant to CPR 13.3(1)(a) before being willing to set the judgment aside.
27. One aspect of this question was considered by this court in Hackney LBC v Driscoll [2003] EWCA Civ 1037, [2003] 1 WLR 2602. The local authority mortgagors had been told by Mr Driscoll that he was no longer living at the mortgaged property, and were given his new address, but when they sought possession, the court served the claim form on him at the address of the mortgaged property. In due course he became aware that possession proceedings were afoot and attended two procedural hearings, but because the court also sent the notice of the trial date to him at his old address he did not attend court that day, and an order for immediate possession was made against him in his absence.
28. Unhappily he became affected by a severe mental illness, and he did not become aware of the possession order until about five months after it had been made, by which time the claimants had executed the warrant for possession. He was eventually discharged from hospital care two years later, and he applied for an order setting aside the possession order 17 months after that. Both the district judge and the circuit judge refused his application; being unwilling to exercise discretion in his favour under CPR 39.3(5), but this court granted him permission to appeal on the basis that he wished to argue that he was entitled to have the possession order set aside as of right, since he had had no notice of the hearing date. Heavy reliance was placed in this regard on the decision of this court in White v Weston [1968] 2 QB 647.
29. In paragraphs 13-16 of my judgment in Hackney LBC v Driscoll I summarised the facts in White v Weston and the relevant extracts from the judgments of Russell and Sachs LJJ. For the purposes of this judgment I will not repeat what I said then, but will content myself with restating the well known dictum of Denning LJ (which Sachs LJ cited) in R v London County Quarter Sessions Appeals Committee ex p Rossi [1956] 1 QB 682, 691:

"it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them."

Russell LJ vividly described the defendant as a "stranger" to proceedings of which he had had no notice until after a judgment had been entered against him.

30. That was a case which turned on the proper interpretation of section 26 of the Interpretation Act 1889 and Order 8 rule 8(3) of the County Court Rules 1936. Sachs LJ said at p 660 that only an explicit and clear provision in a statute, or in rules having statutory force, could operate to deprive a citizen of his right to notice of the commencement of process against him, and that to permit service other than personal service at an address which was not in fact his abode nor his residence nor his business address would be a provision clearly calculated to deprive him of that right. (The problem which arose in White v Weston was that although the defendant had given the plaintiff the details of a home address in Ilford at the time their cars collided, he had moved to Romford five months before court proceedings started, so that service by post at the Ilford address – in the absence of anything resembling the table attached to CPR 6.5 - did not constitute service at all).
31. Within five years of the decision in White v Weston a trilogy of cases in the Court of Appeal ultimately set out clear guidelines for the service by post of High Court proceedings on a company at its registered office. In the last of these cases, A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314, this court interpreted the combination of section 437(1) of the Companies Act 1948 and section 26 of the Interpretation Act 1889 as having the following effect. If a plaintiff could prove that a copy of the writ was sent by prepaid post to the defendant company's registered office and he received no intimation that the letter had not been delivered, he was entitled to proceed to sign judgment if no appearance was entered in due time, and the ensuing judgment would be a regular judgment (see Lord Denning MR at p 322). The position is most clearly stated in a passage in the dissenting judgment of Orr LJ in Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464, 478-9 which was cited and expressly approved in the Cathrineholm case (where this court had to choose between earlier conflicting authorities):

"…[T]he point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given or signed, and if at that time there is nothing known to the court (or to the plaintiff whose duty it would be to communicate it to the court) which indicates that the relevant process has not been delivered in the ordinary course of post, it is to be deemed to have been so delivered for the purposes of that judgment, though it will be open to the defendant to apply to have that judgment set aside on the court's discretion on the ground, inter alia, that he was not served in time."

32. Under pre-CPR practice there was a difference between an irregular judgment (which could be set aside as of right – ex debito justitiae) and a regular judgment (where the defendant had to show that he had a defence on the merits before the court would be prepared to have the judgment set aside): see the Cathrineholm case per Lord Denning MR at p 322 B-D, Roskill LJ at p 324 F-H and Sir Gordon Willmer at p 325 D.
33. It appears to me that the CPR rule-makers had the pitfalls of earlier practice well in mind when they made their new procedural code. Thus the new code

i) expressly identified the place of service at which a document might be properly served (see the table annexed to CPR 6.5), being the "usual or last known residence" in the case of an individual;

ii) expressly provided that a document which was served in accordance with the CPR or any relevant practice direction should be deemed to be served on the day shown in the table annexed to CPR 6.7;

iii) expressly provided in CPR 6.10 that a certificate of service must not only give prescribed details as to the method and date of service but must also state that the document has not been returned undelivered;

iv) expressly provided in CPR 6.11 that in cases where a document was to be served by the court and the court was unable to serve it (language which would include those cases where a document sent by post was returned undelivered), the court must send a notice of non-service stating the method attempted to the party who requested service;

v) made it clear in CPR 6.14(2)(b) that a claimant may not obtain judgment in default unless he has filed the certificate of service (which must of necessity state that the claim form was not returned undelivered (see (iii) above));

vi) made it clear that the difference between a default judgment wrongly entered (which must be set aside – see CPR 13.2) and any other default judgment (which may only be set aside if one of the conditions set out in CPR 13.3(1) are satisfied and the application was made promptly) depends on whether the procedural steps required by CPR 12.3 were or were not followed (so far as relevant in the particular circumstances) or whether the whole of the claim had been satisfied before the judgment was entered;

vii) made a special provision in CPR 13.5(2) requiring a claimant to file a request for his own judgment to be set aside, or to apply to the court for directions, if after entering judgment he subsequently has good reason to believe that the particulars of claim did not reach the defendant before he entered judgment.

34. In the present case on the findings of the district judge the judgment was regularly entered, because it was posted to the defendant at his usual residence and the district judge made no finding that the claim form was returned undelivered. The situation might have been different if she had found that the claimant deliberately suppressed the claim form when it arrived by post in his house. It follows that on the ordinary interpretation of the relevant provisions of the Civil Procedure Rules, supported by the judgment of this court in Smith v Hughes (see paras 23-24 above), this judgment could only be set aside as a matter of discretion pursuant to CPR 13.3, and it would not be possible to fault the way in which Judge Yelton exercised his discretion. The suggested defence had no merit at all. For completeness I would add that Mr Adam appears to have paid no rent at all since 1997, and the idea that Rent Act protection in these circumstances protects a tenant who was in fact habitually living with his sister on the other side of London is not a particularly appealing one.
35. In reaching this conclusion I have not overlooked what May LJ said in Godwin v Swindon BC [2001] EWCA Civ 1478, [2002] 1 WLR 997 at para 49:

"In my judgment, Part 13 contains appropriate provisions to deal justly with circumstances where a defendant, against whom judgment in default of acknowledgement of service or defence has been entered, at worst did not in fact receive the claim form and particulars of claim before judgment was entered. Rule 13.5 is odd, in that it refers only to a claimant who has good reason to believe that particulars of claim did not reach the defendant before the claimant entered judgment. But it makes quite clear that the rules do not intend that such a defendant should be stuck with the judgment without due consideration by the court. If the judgment was wrongly entered because the conditions in rule 12.3(1) or (2) and (3) were not satisfied, the court must set it aside under rule 13.2. In any other case, the court has a discretion under rule 13.3(1) to set the judgment aside or vary it. The discretion may be exercised under paragraph (a) if the defendant has a real prospect of successfully defending the claim. That is the obverse of the relevant part of rule 24.2 and may apply whenever the defendant received the claim form and particulars of claim. Rule 13.3 (1)(b) has a disjunctive alternative, so that the court may set aside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so. The defendant, for instance, may have no defence to the claim, but may justifiably want to have the judgment set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgment recorded against him. There may also be questions of costs."

In the present case it would have been pointless to set aside the judgment, for the reasons given by Judge Yelton.

36. The reason why we have had to consider Mr Adam's arguments at some length is that in the CPR case law to date the courts have been mainly concerned with the position of a claimant who delays serving a claim until the very end of the time permitted to him under the rules or the Limitation Act. They have not been principally concerned with deep-seated issues of justice when seen from the standpoint of a defendant who says (as in the passage of May LJ's judgment in Godwin which I have just cited) that he had no notice of the proceedings at all until after he heard about the default judgment, so that he was a stranger to them (to use Russell LJ's phrase) and the court therefore, he contends, had no jurisdiction over him. In July 2003 I expressly left the consideration of this issue open in the Driscoll case until a case in which it directly arose. Since that time the relevant arguments have been fully deployed by Adrian Zuckerman in Civil Procedure (LexisNexis Butterworths, 2003).
37. Mr Zuckerman develops the argument in paras 4.1-4.4, 4.29-4.32, 4.94-4.96, 8.13-8.14 and 21.105-21.106 of his book. Put shortly, he challenges the historical assumption that service and notification are one and the same thing. He suggests (at para 4.29) that this is largely a heritage from the time when the standard method of originating process was by means of personal service. Now that modern methods of communication are permissible, the act of transmission (which may be referred to as service) and the fact of notification are no longer co-existent. In other words, a claimant may be able to show that he has effected service in accordance with the rules, but a defendant should still be entitled to say "I knew nothing about these proceedings and I am entitled to have this judgment set aside as of right." In a bold passage in Chapter 4 of his book Mr Zuckerman suggests that Denning LJ got things wrong in ex p Rossi (see para 29 above) at p 693. He writes (at para 4.96):

"If the right to notification is a fundamental principle of our law, it cannot cease to be so merely because the claim form was not returned, perhaps because it was lost on the way to its destination or on its return journey. The fundamental right to fair trial must be respected in any event. No other position would be compatible with ECHR article 6."

38. We have not heard proper argument on this point because Mr Adam appeared in person and Mr Carter, who appeared pro bono on behalf of Mr Akram, did not have prior notice of Mr Adam's reliance on Mr Zuckerman's book and was restricted to argument on the point which had necessarily not been prepared in advance.
39. It appears to me, however, that the point is without substance. By section 1(1) of the Civil Procedure Act 1997 Parliament made provision for there to be rules of court governing the practice and procedure to be followed in the county courts, and the Civil Procedure Rules 1998 (SI 1998/1008) were made pursuant to that power. Section 1(3) of the Act expressly provides:

"(3) Any power to make or alter Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient."

40. This governing purpose is restated in the overriding objective in CPR 1.1 and runs through the new rules and the case law (particularly the case law in this court) by which the rules and their underlying philosophy have been explained to judges and practitioners. In his judgment in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 3 All ER 530 Dyson LJ contrasted in one particular context the "intricate and numerous authorities" under one of the former Rules of the Supreme Court (see para 10 of his judgment) on the one hand and the "new procedural order" (which should generally be interpreted without reference to earlier case law) on the other.
41. I do not see anything in the new code which contravenes ECHR Article 6 in the way which Mr Zuckerman suggests. A code which permits service by post to an individual at his usual or last known residence, and which allows such service to stand as good service unless it is known before a default judgment is entered that that method of service was ineffective provides for an accessible, fair and efficient way of administering justice, and these are all attributes much prized by Strasbourg jurisprudence.
42. The code gives a defendant access to a court if for some reason the prescribed method of service does not draw the proceedings to his attention before the judgment is entered. So long as the claimant has complied with the rules, the judgment is a regular one, but if the defendant can show that he has a real (and not a merely fanciful) prospect of successfully defending the claim or that there is some other good reason why the court should intervene, the court is empowered to set aside the judgment, so long as the application is made promptly, after the defendant has become aware of the proceedings.
43. I cannot believe that Strasbourg jurisprudence requires the procedural rules of a national court to oblige the claimant in such a case to initiate further ancillary proceedings to strike out a defence or to enter summary judgment under Part 24, with all the concomitant expense and delay which this would involve. The fair trial guarantees in ECHR Article 6 must entitle a defendant to be heard, but if he cannot show the court that his defence would have a real prospect of success, or that there is some other compelling reason why a trial should be conducted, it does not require the parties and the court to indulge in an expensive and time-consuming charade. In James v United Kingdom (1986) 8 EHRR 123 the court at Strasbourg said (at para 81) that Article 6(1) extends only to "contestations" (disputes) over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law. If a court, like Judge Yelton, is satisfied that the defendant would not have an arguable defence if the default judgment were set aside, ECHR Article 6 does not in my judgment entitle the defendant to a trial (or oblige the claimant on some other occasion to show that the defendant has no arguable defence).
44. For these reasons I would dismiss this appeal. Since Mr Carter appeared pro bono, there will be no order as to costs. I would like to pay tribute not only to the clarity of his oral argument but also to the quality of the written materials Mr Adam placed before us in support of his interesting contentions.

Lord Justice Jonathan Parker:

45. I agree

Lord Justice Keene:

46. I also agree.