Substituted Service in UK Law

Secondly it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service.

Once they are added as defendants they would be in a position to urge that the order for substituted service was not properly made and should be set aside. The affidavit in support was insufficient to warrant the order, for the simple reason that it did not show that the writ was likely to reach the defendant Circuit, nor to come to his knowledge. It would be different if the defendant was insured with the Royal Insurance Co.: but that was not suggested.

The order for substituted service obtained on Mr Gurtner's own affidavit, for he was then acting in person, was obviously wrong. There was no possible reason for serving Mr Circuit at the address of the Royal Insurance.

There may be others, though for my part I would be reluctant to see much extension of the classes, (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings, (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirements see e.g. Finnegan v. Cementatidn Co. Ltd. (1953) 1 Q.B. 688.

I do not myself attach importance to the question whether it is proper to label a judgment obtained in circumstances such as this as "Irregular" or "a nullity". The defect is in my judgment so fundamental as to entitle the defendant as of right ex debito justitie to have the judgment avoided and set aside.

Wnen construing this section, it Is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes any order against him.

The issue between the parties is, if I may term it this way, one of touch. If Mr. Morby had been touched by the Petition he would have been personally served. Mr. Morby had knowledge: knowledge that what was contained in the sealed envelope was the Petition. I recognise that there may be more than one view regarding my finding and therefore go on to consider substituted service and the cure provision contained within the IR 1986.