Civil Procedure Rules: Whether an email address constitutes a valid address for service (Axnoller Events Ltd v Brake and another; Brake and others v Chedington Court Estate Ltd-2022)

This recent decision expands on our earlier case report in Axnoller Events v Brake [2021] whereby the High Court ruled on an application in respect of payment of costs where a mental health moratorium was in place.

In the present hearing, the High Court was asked to decide on a procedural matter, namely whether supply of an email address constituted a valid address for service or whether only a physical address could be used.

The background

In Axnoller Events Ltd v Brake and another; Brake and others v Chedington Court Estate Ltd [2022], proceedings concerned claims for possession and eviction. The Brakes were the tenants of the subject property, and had not appointed legal representation during proceedings. They did not supply any address for service, and accepted service by email.

In addition, in these latest proceedings the Brakes argued against an application for an order for costs on behalf of Axnoller Events Ltd, arising following Axnoller’s success in the previous possession action. They contended that costs should be assessed on an indemnity basis rather than the standard basis. Axnoller’s argument in favour of costs on an indemnity basis centred on claims that the Brakes had made proceedings unnecessarily complex, including allegations of a negative press campaign and concealment of assets.

Costs and mesne profits were also addressed, following an application by Axnoller for a payment of £300,000 on account of mesne profits which they alleged arose due to their inability to access the property for a period of 4 years.

The decision

The High Court clarified a number of procedural elements in this important decision, finding that an email address does not satisfy the Civil Procedure Rules and cannot therefore be used as an address for service of documents in proceedings.

Civil Procedure Rules r.6.23 states that an address for service must be an address within the UK or EEA state where the recipient resides or carries on business. Because a party cannot reside or carry on business at an email address, the High Court found service by email to be invalid.

Although finding that assessment of costs on the standard basis should be the norm, on consideration of the facts in this case the High Court found that the Brakes’ conduct during the litigation was sufficient to justify assessment on an indemnity basis. The key reference point here is the finding that the indemnity basis should be used for assessment of costs where the facts of the case are different from ‘the norm’.

Finally, in considering the mesne profits claim, the High Court concluded that the sum of mesne profits should be calculated by reference to the sum by which the trespasser benefited from its occupation, instead of referring to loss suffered by the claimant.

Advice and action for landlords

The decision regarding email addresses used for service is of particular note for landlords and managing agents.

A physical address must always be obtained and a record maintained, as service by email does not satisfy the CPR and may therefore be found to be invalid.