The High Court has held that section 1140 of the Companies Act 2006 permits service on a director, of all documents relating to proceedings against that individual, at the address they have registered at Companies House: Brouwer v Anstey [2019] EWHC 144 (Ch).

The court applied the decision of Master Marsh in Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402 which interpreted section 1140 very widely, so that the section applied regardless of whether the documents being served concerned the directorship or company and regardless of whether the director was resident in England (see post here). The Key Homes decision was not binding in the present case, but the court noted that it appeared in the White Book notes and had stood as the law for nearly five years without appeal. The decision applied, the court held, to the service of proceedings and documents generally.

Where there are difficulties in serving a defendant who is an individual, whether this concerns service of a claim form or documents in the course of the proceedings, it is worth checking whether there is an address registered for that person at Companies House so that you may be able to take advantage of section 1140. Bear in mind, however, particularly where limitation is in issue, that the Court of Appeal has yet to consider the section.

The decision is also of interest in finding that, where a party has ceased to be legally represented and has failed to provide a new address for service, as required under court rules, the default provisions for service of claims forms cannot be used to effect service of subsequent documents in the proceedings. Accordingly, if documents cannot be served personally or under the Companies Act, and the party to be served has not indicated that it will accept service by fax or email, it will be necessary to apply for an order for alternative service, or to dispense with service.

Background

The claimant obtained judgment against the defendant without trial after the points of defence were struck out for the defendant’s non-compliance with an unless order. The defendant applied to set aside the judgment.

One of the issues raised was whether the relevant applications and orders were properly served on the defendant after his solicitors ceased to act for him. Up until that point, service was effected on the solicitors in the usual way. When they ceased to act, however, the defendant did not provide, as he should have, a new address for service on him.

Various hearings took place and orders were made, culminating in judgment being given at a hearing which the defendant did not attend. Service of the applications and orders was purportedly effected in a number of ways, including by email to the defendant or his former solicitors, by post to his usual last-known address, and by post to the address registered at Companies House. No application was made for substituted service or to dispense with service.

Decision

The High Court (Insolvency and Companies Court Judge Jones) found that judgment had to be set aside in any event, as the underlying case involved an unfair prejudice petition and, following Re Bankside Hotels Ltd [2018] EWHC 1035 (Ch), a trial was required to satisfy the court that the petition was well-founded and relief should be granted.

In relation to service:

  • Service by email was not effective as electronic means cannot be used unless the party or their solicitor has indicated in writing their willingness to accept such service.
  • Service by post to the defendant’s last known address also was not valid. CPR 6.9 provides for this method of service (among others) where a defendant does not give an address for service, but that rule only applies to claim forms.
  • The documents served at the address registered at Companies House were effectively served under section 1140 (for the reasons outlined below) but the defendant was not served there with the unless order or the application for judgment. That meant service had not been effected correctly of the key documents.

So far as section 1140 of the Companies Act is concerned, this provides:

“1140 Service of documents on directors, secretaries and others
(1) A document may be served on a person to whom this section applies by leaving it at, or sending it by post to, the person’s registered address.
(2) This section applies to –
(a) A director or secretary of a company….
(3) This section applies whatever the purpose of the document in question. It is not restricted to service for purposes arising out of or in connection with the appointment or position mentioned in subsection (2) or in connection with the company concerned.
(4) For the purposes of this section a person’s “registered address” means any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection….”

The explanatory notes within Schedule 3 to the Act provide:

“1459. This section is a new provision. It ensures that the address on the public record for any director or secretary is effective for the service of documents on that person. Subsection (3) provides that the address is effective even if the document had no bearing on the person’s responsibilities as a director or secretary.”

The court referred to the decision of Master Marsh, before he became Chief Master, in the Key Homes case. While not binding, that decision should be treated, the court said, as strong persuasive authority and followed absent obvious reason not to do so. The court considered that it made no difference that in Key Homes the master was addressing the issue of whether permission was needed to serve out of the jurisdiction. The ratio of the decision applied generally to the service of proceedings and their documents.

The court then quoted with approval an extract from the master’s decision:

“Section 1140 is … drafted in clear and unambiguous language. Subsection (3) is explicit that the section applies whatever the purpose of the document in question and the section is not restricted to service for purposes arising out of or in connection with the directorship or in connection with the company to which the register relates. On the face of the section, it provides a method by which a company director may be served with any document, including a claim form, at the registered address.”

Documents served at the Companies House address were therefore validly served.