There may be doubt as to where to serve a debtor in the event that the debtor is an “individual trading as” and has not provided an address. In the recent decision in Ellison Road Ltd v Mian (t/a HKH Kenwright and Cox Solicitors) [2023] EWHC 375 (Ch) (28 February 2023) some clarity has been provided.
This is understood to be the first reported decision on this issue. It clarifies that where a claim form names an individual trading as a business name, that individual is sued in the name of a business for the purpose of Civil Procedural Rule 6.9 (2). Therefore, the claim can be served at the usual or last known residence of the individual or the principal or last known place of business.
In this matter, the Claimant issued a professional negligence claim against the Defendant. The Defendant was a solicitor who, at the time, carried on business as a sole practitioner under a business name different from his own. The Claimant named the Defendant as Mian (t/a HKH Kenwright and Cox Solicitors). The Defendant had stopped trading as a sole practitioner and began working for a different firm of solicitors. The Claimant took what it considered to be reasonable steps to ascertain where the Defendant had been carrying out business and subsequently served the claim form on the Defendant at his current place of work.
The Defendant made an application to the Court for an order declaring that it did not have jurisdiction to deal with this claim. The application was made on the basis that pursuant to the Civil Procedural Rules Practice Direction 7A paragraph 9, where a claim is being brought against an individual who carried on business within the jurisdiction in a name other than the individual’s own name, the claim may be brought against the business as if it were the name of a partnership. The Defendant’s position was essentially that under CPR 6.9(2) service should have been on “Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.”
The Defendant argued that service had not been validly effected because the address of the current firm he had been working at was not his principal or last known place of business. The Defendant argued that the Claimant had failed to take reasonable steps to ascertain his current business and that the address served had never been the place of business of HKH.
The Claimant, however, relied on Civil procedural rule Practice Direction 16 paragraph 2.6 which requires that the Claimant provide the full name of the individual followed by the full trading name “in each case where it is known”. The wording of Practice Directions 16 paragraph 2.6 provides that it is mandatory for the Claimant to bring the claim against the Defendant in his name also, rather than in the name of the business alone as the name was known. As such, the Claimant correctly sued the Defendant in the name of a business and therefore service could be effected at his principal or last known place of business pursuant to CPR 6.9(2).
It was held that HKH was not a legal entity but was the trading name adopted by the defendant as the sole practitioner, meaning the relevant address would be the address of the Defendant, not the business. Ultimately, Master Brightwell found that the Claimant had effected good service.
In conclusion, where a Debtor is an “individual trading as” and has not provided an address, for the purposes of CPR 6.9(2) the debtor is an individual sued in the name of a business. Service of the claim must be made at the usual or last known residence of the individual; or principal or last known place of business.
Written by : Simeon McKenzie, Paralegal
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