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England and Wales Court of Appeal (Civil Division) Decisions
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Carr v Vehicle Control Services Ltd [2025] EWCA Civ 713 (11 June 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/713.html
Cite as:
[2025] EWCA Civ 713
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Neutral Citation Number: [2025] EWCA Civ 713 |
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Case No: CA-2024-001179 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CIVIL JUSTICE CENTRE
HER HONOUR JUDGE EVANS
F9QZ07M8
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Royal Courts of Justice Strand, London, WC2A 2LL |
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11 June 2025 |
B e f o r e :
LORD JUSTICE BEAN
LORD JUSTICE MOYLAN
and
LORD JUSTICE PHILLIPS
____________________
Between:
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PHILLIP CARR
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Appellant/defendant
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- and -
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VEHICLE CONTROL SERVICES LTD
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Respondent/claimant
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____________________
Jackson Yamba (instructed by Lawrence and Associates) for the Appellant
John Craggs (instructed by ELMS Legal Ltd) for the Respondent
Hearing date: 4 March 2025
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.30am on 11 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Lord Justice Moylan:
- The Appellant, Philip Carr ("the Defendant"), appeals from the order made by Her Honour Judge Evans on 7 May 2024 by which she allowed an appeal by the Respondent, Vehicle Control Services Ltd ("the Claimant"), from the order made by District Judge Iyer on 25 October 2023.
- The latter order set aside a default judgment, which the Claimant had obtained in respect of car parking charges they claimed were due from Mr Carr, and also struck out the claim. DJ Iyer decided that the claim form had not been properly served and that it had expired.
- HHJ Evans allowed the appeal on the basis that DJ Iyer had misunderstood the evidence so that his decision that the claim form had not been properly served could not stand.
- The relevant ground of appeal is that HHJ Evans was not entitled to interfere with the District Judge's findings. The Defendant was given permission to bring this second appeal by Andrews LJ on the basis that there was a compelling reason to do so, namely that "if the District Judge was entitled to make the findings that he did, and there was no justification for interfering with his decision to set aside the default judgment, it would be unfair to the defendant to allow the decision to stand". Andrews LJ considered that, "On the face of it, there was a sufficient evidential basis for the District Judge's findings and no mistake was made that would justify setting them aside".
- With the permission of the court, Mr Yamba represented the Defendant at the appeal hearing, as he had at the hearing before HHJ Evans. Mr Craggs appeared on behalf of the Claimant.
- At the conclusion of the hearing, the parties were informed that the appeal would be allowed. This judgment contains my reasons for agreeing with that decision. There were a number of other issues which were raised during the course of the proceedings below but I propose only to deal with the issue raised by this appeal, namely that referred to in paragraph 4 above.
Background
- The Claimant is a "car park operator that provides car parking and enforcement on behalf of its Clients". By a Claim Form issued on 9 April 2019, the Claimant sought to recover £9,500 from the Defendant on the basis that he had parked his car on private premises in Altrincham ("the Premises") contrary to the relevant terms and conditions.
- The Claimant served the proceedings at an address which had been provided by the Driver and Vehicle Licensing Agency ("the DVLA") as being the address for the owner of the relevant vehicle which was different from the address of the Premises.
- The Claimant obtained judgment in default on 30 May 2019, the Defendant having filed no acknowledgement of service or any defence.
- On 12 May 2023, the Defendant applied to set aside the default judgment and for an order that the claim be struck out. In a statement in support, the Defendant asserted that he had been unaware of the claim because he had not been living at the address to which the Claimant had sent correspondence and at which the Claimant had served the proceedings. He had "moved out" of that property in February 2018 and since March 2018 had been living as a tenant at the Premises. He also said that he had been entitled to park at the Premises as part of his tenancy agreement but had not been provided with a parking permit despite "multiple requests". He contended that the Claimant had not taken reasonable steps to ascertain his current address as at the date the claim form was served.
- The Claimant opposed the Defendant's application contending that, as referred to above, the claim form had been served "on the Defendant's last known address provided by the DVLA".
- The Claimant's statement also referred to two telephone calls the Defendant had made to the Claimant and provided notes of these calls. In the first, on 8 August 2018, in response to the suggestion that he had been parking without a permit, the Defendant said that he was a tenant at the Premises which permitted him to park there but he had not yet received a permit. What he was saying was clearly understood as the response was that this was an "issue between his letting agent and him, not us". They also declined to give the Defendant the "client name". In the second telephone call, on 6 October 2018, it is recorded that the Defendant said that he "has a letter from client confirming PCNs issued incorrectly". I deal further below with these calls, which were the focus of the hearings before DY Iyer and, in particular, HHJ Evans.
Legal Framework
- I first set out the relevant rules.
- CPR Part 6 deals with the service of documents. The relevant provision as to service in the present case is rule 6.9:
"Service of the claim form where the defendant does not give an address at which the defendant may be served
6.9 (1) This rule applies where –
(a) rule 6.5(1) (personal service);
(b) rule 6.7 (service of claim form on solicitor); and
(c) rule 6.8 (defendant gives address at which the defendant may be served), do not apply and the claimant does not wish to effect personal service under rule 6.5(2).
(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table."
The table provides, under entry 1, that an individual must be served at their "Usual or last known residence".
- Rule 6.9 further provides:
"(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.
(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)." (emphasis added)
- It can be seen that rule 6.9(3) applies when the claimant has "reason to believe" that the defendant no longer lives at the address referred to in entry 1. If there is such reason, then the claimant must take reasonable steps to ascertain the defendant's "current residence". It can also be seen that rule 6.9 contains a number of additional provisions, the clear purpose of which is to seek to ensure that a defendant is served with a claim form.
- Rule 7.5 provides, in respect of "Service of a claim form":
"(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form."
- The limited circumstances in which an appellate court can interfere with factual findings made by a trial judge have been addressed in many authorities. I propose to refer, briefly, to two.
- In Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600, Lord Reed said, after considering a number of authorities:
"[67] It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
- In the second case, In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, the Supreme Court dismissed an appeal from the Inner House's decision overturning the trial judge's factual determination on the issue of habitual residence. Lord Reed summarised the role of the appeal court when dealing with appeals from factual findings:
"[18] Finally, it is relevant to note the limited function of an appellate court in relation to a lower court's finding as to habitual residence. Where the lower court has applied the correct legal principles to the relevant facts, its evaluation is not generally open to challenge unless the conclusion which it reached was not one which was reasonably open to it."
District Judge Iyer's Judgment
- DJ Iyer started by observing that claimants "are entitled to assume that somebody is still at the address that he is registered to, including the address on the DVLA". He then went on:
"[2] However, if they get information that gives them reason to believe he is not at that address, they do not need to know what the new address is, but reason to believe that he is not at that address, then 6.9(3) is engaged."
He decided that the Claimant did have reason to believe that the Defendant was not at the address provided by the DVLA because he had telephoned the Claimant and told them that he was a tenant at the Premises and had the right to park there. His finding in the last sentence of paragraph 2 was as follows:
"I find that ringing [the Claimant] up and saying, I am a tenant here, you can have the right to park here, that should have told them that he was not living at [the address given by the DVLA], but he was living at the apartments where the alleged breach of parking occurred."
- DJ Iyer then went on to consider whether the Claimant, having been put on notice, took reasonable steps to ascertain the address. He decided that they had not. He acknowledged that the Claimant was, no doubt, a very large organisation and was "engaged in a number of contracts and issues a lot of claims". This did not, however, excuse them from taking the reasonable step of contacting the client for whom they provided their services and making the simple inquiry as to whether the Defendant was a tenant at the Premises.
- He concluded by saying:
"[5] I do not think that the mere number of tickets issued would be sufficient, but these two phone calls, plus the fact that they were not getting any response from the Defendant, put them on notice.
[6] For that reason I do set aside judgment. I would add that I think the Defendant would have had some difficulty on the other grounds, but these two phone calls are sufficient."
- DJ Iyer's order also recorded that the claim form had "expired under CPR 7.5(1) without being served". Accordingly, in addition to the default judgment being set aside, the claim was also struck out.
- The Claimant appealed contending that the District Judge had "erred in concluding that service of the claim form was defective".
Her Honour Judge Evans' judgment
- HHJ Evans noted that the "bar is high for an appellant who wishes to persuade the appellate court to interfere with a lower court's finding of fact" but decided that the Claimant had succeeded in surmounting it. She explained her decision as follows:
"[12] Notwithstanding that high bar, in my judgment the appeal must succeed on this ground [that the District Judge was wrong to decide that service was defective] and it must succeed for this reason. The district judge referred in his judgment to two telephone calls which should have put the Claimant on notice of the change of address. In fact, although there were two telephone calls, only one of them makes any reference to this Defendant being a tenant. The district judge appears to have proceeded on the basis that in both calls the Defendant referred to being a tenant. That is an error, it seems to me, in terms of the evidence upon which he based his decision. It may be, had he identified that in fact there was only one call in which the Defendant made this point, that he would have come to a different conclusion." (emphasis added)
- This led her to allow the appeal and set aside the District Judge's order. She redetermined the Defendant's application and decided that the claim form had been validly served and that the default judgment should not be set aside.
Appeal
- As referred to above, the relevant ground of appeal is that HHJ Evans was not entitled to interfere with the District Judge's findings.
- Mr Yamba relied in particular on Henderson v Foxworth and argued that HHJ Evans had not been entitled to interfere with the District Judge's findings. He submitted that the District Judge had made a clear factual finding that service was defective which had been open to him on the evidence and which had been based on "primary facts". There had, therefore, been no failure or error which justified HHJ Evan's decision.
- Mr Craggs "agreed that, for the appeal judge to overturn [a] factual finding, the Henderson principles require there to be no reasonable basis for it on the evidence or a demonstrable failure to consider relevant evidence or misunderstanding of it". He submitted that the evidence was "insufficient" or too "tenuous" to support DJ Iyer's finding because it "falls far short of a disclosure that could have given the [Claimant] any 'reason to believe' that the service address was incorrect".
- Further, there had been "a demonstrable misunderstanding by DJ Iyer of the evidence on which he based his decision, and the analysis he performed in relation to the steps the Respondent could or should have taken to ascertain the Appellant's last known address". The "glaring error" said to have been committed by DJ Iyer was that "only one of the calls had mentioned a tenancy". This fed into Mr Craggs' further submission that, as a result, "there was in fact only one relevant phone call and DJ Iyer's specific reliance on the existence of two was not only incorrect as a matter of fact … it was also the crucial and clinching factor in his decision".
- Mr Craggs also made submissions to the effect that the Claimant had been entitled to rely on the address given by the DVLA and that the failure to respond to correspondence was "not uncommon" and was not such as to put the Claimant on notice that the Defendant might not be living at that address. He made the rather exaggerated submission that the facts of this case were not such as "should have led the [Claimant] to delve deeply into the [Defendant's] living situation and essentially leave no stone unturned until they had obtained his actual address with absolute certainty". I would just comment that this submission bears no connection to the terms and effect of DJ Iyer's decision.
Determination
- With all due respect to HHJ Evans, I do not consider that she was entitled to interfere with DJ Iyer's finding that the Claimant had "reason to believe" that the Defendant had changed his address. This is for two principal reasons.
- First, HHJ Evans mischaracterised the nature of DJ Iyer's finding. The critical part of HHJ Evans' analysis was that the District Judge had misunderstood the evidence as to the two telephone calls because "only one of them makes any reference to this Defendant being a tenant" while the "District Judge appears to have proceeded on the basis that in both calls the Defendant referred to being a tenant".
- DJ Iyer's judgment does not contain any finding to the effect that there had been two telephone calls in which the Defendant had made express reference to being a tenant at the Premises. As can be seen from the passages quoted from his judgment, in paragraph 2 DJ Iyer only refers to the Defendant "ringing them up and saying, I am a tenant here". This could apply equally to one or two calls. It is right that he later referred to two telephone calls but this does not support the conclusion or, at least, is insufficient to support the conclusion that he misunderstood the nature of the calls and based his decision on there being express reference to the Defendant being a tenant in both calls.
- I would further agree with Andrews LJ's observations about the effect of the second call when giving permission to appeal. As she noted, the "client" referred to in that call can only have been a reference to the landlord or managing agents of the block of flats and the call only makes sense "in the context that the [Defendant] was claiming the landlord had confirmed that he had the right to use the car park … necessarily implying that he was a tenant". I would add to this that, during the course of the appeal hearing, in response to a question from Phillips LJ, Mr Craggs agreed that it had been "open" to DJ Iyer to interpret the second call in this context, namely in the context of the Defendant having the right to park as a tenant.
- Secondly and in any event, DJ Iyer's findings, as expressed in paragraph 2 and paragraph 5, were clearly findings which were open to him. I do not accept Mr Craggs' submission that the evidence was "insufficient" or too "tenuous" to support them. In respect of paragraph 2, in my view and as suggested by Bean LJ during the hearing, DJ Iyer's finding was one which was plainly supportable and was sufficient by itself to support his determination that the Claimant had the relevant "reason to believe". As to paragraph 5, again this finding and conclusion are both clearly explained and justified. DJ Iyer was entitled to conclude that the two calls and the absence of any response were sufficient "to put [the Claimant] on notice" so as to bring this case within rule 6.9(3).
- In summary, DJ Iyer's decision was not based on any material flaw or error as referred to in, and was not wrong as explained in, Henderson v Foxworth or Re R.
- For the avoidance of doubt, I would add that DJ Iyer was equally plainly entitled to decide that the Claimant had not taken reasonable steps to ascertain the Defendant's then "current residence". Mr Craggs' suggestion that this was satisfied by the Claimant contacting the DVLA was circular and did not address the consequence of DJ Iyer's conclusion that the Claimant had reason to believe that the address provided by the DVLA was not the Defendant's current residence.
Conclusion
- For the reasons summarised above, it is clear to me that there was no basis on which HHJ Evans could properly have overturned DJ Iyer's decision and that her decision must be set aside with DJ Iyer's order being restored (including in respect of costs).
Lord Justice Phillips:
- I agree.
Lord Justice Bean:
- I also agree.