I have recently observed a number of possession cases against unknown trespassers where the Judge has refused to hear the claim on the basis that service was not effective. In each instance, the Claimant had tried to effect service by attaching the relevant documents to objects to the land or property in some way (windows, doors or tents) in prominent positions, and in each case the Judge suggested that stakes displaying the relevant documents should have been placed on stakes in the ground.
The relevant rule is CPR 55.6:
Where, in a possession claim against trespassers, the claim has been issued against ‘persons unknown’, the claim form, particulars of claim and any witness statements must be served on those persons by:
- attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible; and
- if practicable, inserting copies of those documents in a sealed transparent envelope addressed to ‘the occupiers’ through the letter box; or
- placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to ‘the occupiers’.
The guidance at CPR 55.6.4 makes clear that there is a further, parallel, duty upon a represented Claimant to take ‘reasonable steps to give [Defendants] adequate notice’. It is arguable that simply attaching the relevant documents to tents or other structures on the land constitutes good service in line with rule 55.6(a) where there is no letter box through which documents could practicably be delivered. However, what has become clear in court is that CPR 55.6(a) creates a good deal of scope for argument as to whether service has been effected and as to whether the correct steps have been taken.
Questions arise as to whether 55.6(a) was the correct choice for the property type in question over 55.6(b), whether the notices were visible enough, whether there was an ignored option of posting it through a letter box as well, or whether the lack of a letter box meant that 55.6(b) was more appropriate. A key judicial concern has been whether the Court can be confident that all the relevant persons have been informed of the proceedings. It is obvious that placing stakes in line with rule 55.6(b) is a form of service which, in all cases, is much harder to refute.
Bearing in mind the further guidance at CPR 55.6.4 on the need for reasonable steps, it might be advisable that going forwards Claimants default to CPR 55.6(b) and place a number of stakes in the ground clearly showing the relevant documents when bringing possessions proceedings for trespass against persons unknown.
For belt & braces Claimants might then also attach further copies to structures on the land, and post copies through any available letter boxes. Whilst going above and beyond in this way is a nuisance in the short term, it will insure against any arguments about the effectiveness of service and may save time and costs in the long run.