A recent case illustrates a practical approach to the challenge of effecting good service upon a peripatetic respondent
Lobo vs Corich & Anor . Before Mr Justice Stuart-Smith in the Technology and Construction Court. Judgment delivered 21 June 2017.
During May 2010 Emile Lobo engaged Robert Corich to carry out building works at a property in Chelsea.
In the contract particulars Corich’s address for notices in writing was given as 7 Gunter Grove, London.
On 14 April 2014 Lobo delivered by hand termination notices to 7 Gunter Grove and to 25 Gunter Grove and 183 Chatsworth Court, Kensington, being residences that Lobo believed were used by Corich.
In accordance with the contract termination procedure, on 15 January 2016 the architect issued a certificate indicating that Corich owed Lobo over £600,000. The certificate was sent by post and subsequently hand delivered
to all three residential addresses.
Lobo commenced adjudication in September 2016. The notice of adjudication and the referral were delivered to the three addresses and also sent by email to four email addresses that Corich had used previously, with the subject heading “Adjudication: Lobo vs Corich”.
Corich did not participate in the adjudication or in Lobo’s subsequent enforcement proceedings which were served by hand at 7 and 25 Gunter Grove on 18 January 2017.
On 8 February 2017 Lobo obtained summary judgment for £630,000 plus costs. The judgment was delivered by post to 25 Gunter Grove and by email to the four email addresses. Lobo then obtained an interim charging order on 25 Gunter Grove and the order was delivered by post to 25 Gunter Grove on 1 March 2017 and sent by email to the same four email addresses previously used.
On 27 March 2017 Corich issued a Part 8 application to set aside the adjudicator’s decision on grounds that, as he had never been properly notified of the adjudication, a breach of natural justice had occurred.
Corich also issued an application in Lobo’s enforcement proceedings that the charging order be set aside or the proceedings stayed pending the Part 8 application.
Were there sufficient grounds to justify setting aside the adjudication decision and the enforcement judgment?
While Corich acknowledged that he had frequently used the four email addresses to which documents had been sent, the judge did not accept his explanation that he only replied to those emails to which he thought he needed to reply to without looking at the subject headings. The judge also said he was in no doubt that Corich should have been aware of the documents that were served by post and by hand at 25 Gunter Grove where no explanation had been given as to why all of the documents delivered should have gone missing. The judge concluded that Corich had taken a conscious decision to not open the emails and to not look at the documents physically delivered.
In the absence of any specific agreement between the parties, then s.115(3) of the Construction Act required service by any effective means. On the facts 25 Gunter Grove was an effective address for service because it was Corich’s most reliable address throughout the period and there had been no statement from Corich that he would not receive correspondence at that address. Therefore the notice of adjudication and the referral were effectively served and the adjudication was properly constituted.
Similarly, the enforcement proceedings were properly served at 25 Gunter Grove which comprised Corich’s usual or last known place of residence and was the place with which he had the closest residential connection. There was no reason to believe that Corich no longer resided there.
Where all of the relevant documents had been duly served upon Corich, there could be no suggestion of a breach of natural justice or procedural unfairness so there were no grounds for challenging the adjudicator’s decision, for setting aside the judgment or for granting a stay of the proceedings.
The judge considered the differing requirements for the service of documents in adjudication and in court proceedings. In either case, where the respondent’s location is uncertain, the claimant would be well advised to take extra steps to ensure good service.
Here, Lobo’s approach of delivering documents to three postal addresses and four email accounts was successful but the judgment suggests that where genuine doubt remains, the prudent claimant should seek confirmation that the respondent has received the relevant documents.
Ted Lowery is a partner in Fenwick Elliott