[2024] UKUT 33 (LC)

A failure by the applicant properly to serve notice of the application on Southwark would satisfy one of the conditions for setting aside an order under rule 54(2)(a) (“a document relating to the proceedings was not sent or delivered to, or was not received at an appropriate time, by a party or a party’s representative”).

In his cross examination of Mr Maunsell, Mr Rainey KC did not challenge his account of having delivered the envelope containing a copy of the application to 160 Tooley Street and obtained a receipt. I am satisfied that the delivery took place but that, for reasons unknown, the documents were never received by Mr Davies for whose attention they were addressed. I am also satisfied that 160 Tooley Street, which was the address given by Southwark in the Proprietorship Register for the Blackhorse at HM Land Registry was an appropriate address for service of documents concerning the land (see the decision of the Court of Appeal in Oldham Metropolitan Borough Council v Tanna [2017] 1 WLR 1970).

The first point taken by Mr Rainey about service was that no copy of the applicant’s statement of case had been included by Mr Maunsell with the certificate he filed on 19 November 2021 confirming that he had complied with the Registrar’s direction to serve the application and its supporting documents on Southwark. The proper inference, he submitted, was that the statement of case had not been served with the application on 12 October, which provided grounds to set the order aside under rule 54(2)(a).

I am satisfied that there is nothing in that point. It is for Southwark to prove that there are grounds to set aside the order. Mr Maunsell gave evidence in his witness statement and in person at the hearing that the documents he delivered to Southwark on 12 October included a copy of the statement of case. The covering letter he prepared listing the contents of the envelope referred to the statement of case as among them; it also referred to a number of other documents which were said to be enclosed. It is true that no copy of the statement of case (or of other documents mentioned in the covering letter) was included with the documents certified by Mr Maunsell on 19 November as having been delivered, but that does not establish that no copy was in fact delivered, as Mr Maunsell now says. I am therefore unable to conclude, on a balance of probability, that a copy of the statement of case was not served.

Furthermore, service of a statement of case is not a condition precedent to the making of an order under section 84 and notice under rule 33 is often given by advertisement in a newspaper or by displaying information on the land itself, with other documents being supplied only on request. What is required is that the making of the application is brought to the attention of those who may be entitled to the benefit of the restriction.

In any event, an omission to include a copy of the statement of case (if that is what happened) would have made no difference to the course this application has taken; it would simply have been one additional document left unread by Southwark. In those circumstances any such omission would be unlikely to justify setting aside the order in the exercise of the Tribunal’s discretion.

Mr Rainey KC next submitted that service had been ineffective because the address given by the applicant for Southwark in the application form was the PO Box number of its Finance, Governance, and Legal Services department, and the Registrar must be taken to have intended that service would be effected using that address when he gave his direction under rule 33. Use of that address would have ensured that the delivery got to the appropriate destination.

I do not accept that service was ineffective because the PO Box address was not used. In his oral submissions Mr Rainey KC did not suggest that service by hand at its principal administrative office which was also the address given for it on the Proprietorship Register for the Black Horse, was not service on Southwark. It cannot therefore be said that that the condition in rule 54(2)(a) is satisfied. The Tribunal did not direct service at any particular address, and the Registrar subsequently approved the certificate of compliance filed by Mr Maunsell stating that service had taken place by hand. In those circumstances it cannot be said that service at an address different from the PO Box specified by the applicant in the application was “some other procedural irregularity in the proceedings” which would bring the case within rule 54(2)(d), or that it would be sufficient to justify a discretionary decision to set the order aside despite proper service having been achieved.

In summary, the circumstances in which service of the application took place do not provide any ground in rule 54(2) which would enable the Tribunal to consider whether it was in the interests of justice to set aside the order.

Mr Rainey KC additionally submitted that even if service was valid, the fact that the application did not come to the attention of the relevant persons at Southwark would be relevant to the exercise of the Tribunal’s discretion to set aside. That is no doubt true, up to a point, but the Tribunal’s discretion only arises on being satisfied of one of the conditions in rule 54(2), and in that event, consideration would also have to be given to the circumstances in which an envelope delivered to Southwark’s offices, addressed to the correct department and identifying (subject to a spelling mistake) the officer concerned, nevertheless failed to come to the attention of that officer.