In England and Wales, there are rules on what address, a person may be served at, for the purposes of service of a court document. In ordinary civil proceedings in the county court or High Court, the rules are set out in CPR Part 6, entitled 'Service of Documents'.
Where the person to be served, is a director or secretary of a company (or a few other roles connected with a company[1]) registered at Companies House, section 1140 of the Companies Act 2006 (the '2006 Act') may be relevant, since this sometimes offers an additional address at which the director/secretary may properly be served.
This article will consider s.1140 of the 2006 Act, in light of:
(1) Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402 ('Key Homes'), High Court (Master Marsh) on 10.1.14;
(2) Brouwer v Anstey (also known as Re Energy Corrector Ltd) [2019] EWHC 144 (Ch) ('Brouwer'), High Court (ICC Judge Jones) on 31.1.19;
(3) Idemia France SAS v Decatur Europe Ltd [2019] EWHC 946 (Comm); [2019] 2 All ER (Comm) 1020 ('Idemia'), High Court (Richard Salter QC sitting as a deputy High Court Judge) on 15.4.19;
(5) PJSC Bank "Finance and Credit" v Zhevago [2021] EWHC 2522 (Ch) ('PJSC Bank'), High Court (Sir Julian Flaux C) on 21.9.21; and
(6) Farrer & Co LLP v Meyer [2022] EWHC 362 (QB); [2022] Costs L.R. 399 ('Farrer'), High Court (Kerr J) on 26.1.22;
As mentioned, s.1140 applies to more than just directors and company secretaries. However, the focus of this article is just in relation to directors and company secretaries (the full list of who s.1140 applies to, is set out in s.1140(2))
It is noted that section 1139 of the 2006 Act deals with service of documents on a company[2].
Section 1140 of the Companies Act 2006
Section 1140 is entitled 'Service of documents on directors, secretaries and others' and reads (so far as presently material[3]):
'(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.
(5) If notice of a change of that address is given to the registrar, a person may validly serve a document at the address previously registered until the end of the period of 14 days beginning with the date on which notice of the change is registered.
(6) Service may not be effected by virtue of this section at an address-
(a) if notice has been registered of the termination of the appointment in relation to which the address was registered and the address is not a registered address of the person concerned in relation to any other appointment;
(b) in the case of a person holding any such position as is mentioned in subsection (2)(b), if the overseas company has ceased to have any connection with the United Kingdom by virtue of which it is required to register particulars under section 1046.
(7) Further provision as to service and other matters is made in the company communications provisions (see section 1143).
(8) Nothing in this section shall be read as affecting any enactment or rule of law under which permission is required for service out of the jurisdiction.' [bold added]
Section 1143 is entitled 'The company communications provisions'[4]
Key Homes
In Key Homes, the claimants (Key Homes) issued a claim in English High Court against the defendant (Mr Patel), in respect to the diversion of monies out of companies (the claimants) the defendant used to be a director of (paragraph 5). The claim form (and particulars of claim and response pack) was served (13.9.13) on two addresses in England: (a) Romford, London address ('Romford'), a residential address; (b) Barking, London address ('Barking'), a business address. The claimants contended this was good service, but the defendant applied for, amongst other things, 'an order setting aside purported service of the claim form, a declaration that the Romford and Barking addresses are not his usual or last known residence and declaring that the claim form has not been served on him.' (paragraph 2) (the 'Defendant's Application'). The defendant contended that by 13.9.13, '...he was no longer resident in the United Kingdom, and that neither Romford nor Barking were his “usual or last known residence”.' (paragraph 7)
Subsequently, the claimants issued an application for: (a) permission to serve the defendant out of the jurisdiction; and (b) permission to serve the defendant by alternative methods pursuant to CPR r.6.15(1). At an interposed additional hearing (a) (permission to serve the defendant out of the jurisdiction) was granted; (b) was adjourned to a hearing on a hearing on the Defendant's Application.
That hearing came before Master Marsh. He said that:
(a) the issue of whether or not Romford nor Barking were his “usual or last known residence” was a fact sensitive issue which cannot be finally determined: 'The approach I must adopt is to consider whether the Claimants or the Defendant have, on an analysis of the evidence, the better or much the better of the argument.' (paragraph 7)
(b) 'The onus is on the Claimants to establish that proper service in compliance with the CPR has taken place and to establish that one of the two addresses was the usual or last known residence.' (paragraph 7)
On service, the claimants raised what was '...agreed to be a novel point concerning service.' (paragraph 8)[5]. The claimants' contended that:
'...they are entitled to rely upon section 1140 of the Companies Act 2006 (“the 2006 Act”) and that by virtue of that section alone, disregarding the provisions of the CPR, service has been effected.'
Under the heading 'Section 1140 Companies Act 2006', and after setting out parts of s.1140, Master Marsh said, at paragraphs 11 to 17 (paragraph 15 contains a typo: it says 2011 when it should, in the author's view, say 2013):
'11. Section 1141 is headed: “Service address”. It provides a definition of “service address” for the Companies Act and states that it means in relation to a person:
“… an address at which documents may be effectively served on that person.”
The Secretary of State is given power to make regulations to specify conditions with which a service address must comply. Part 3 of the Companies Act 2006 (Annual Return and Service Addresses) Regulations 2008 contain relevant conditions which permit service of documents by physical delivery or by postal delivery.
12. Sections 1140 and 1141 are linked to the information that is required to be recorded in the register of directors pursuant to section 163 of the 2006 Act. Under section 163(1) the register must contain for each director “a service address” and it is also required for the register to specify the country or state in which the director is usually resident. Under section 163(5) a person's service address may be stated to be the company's registered office.
13. Section 1140 came into force on 1st October 2009. Some assistance about its intended meaning can be derived from the commentary relating to the Bill. Clause 747 of the Bill corresponded to section 1140. The commentary is as follows:
“This clause 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. Sub-section (3) provides that the address is effective even if the document has no bearing on the person's responsibilities as director or secretary. The provision also applies to the address on the public record of various other persons for whom the 1985 Act requires an address on the public record.”
Some, perhaps limited, assistance can be obtained from the DTI's consultation paper on Company Law Reform dated March 2005. At paragraph 5.3 under the heading “Directors' Home Addresses” it states:
“… it is important that the service address functions effectively, and the law will be tightened to increase the obligation on directors to keep the record up to date, and ensure that the address on the public record is fully effective for the service of documents.”
14. It is of note that section 163 contains an entirely new provision requiring a service address to be provided. Plainly it was the intention that the register of directors should contain information that made it easier to identify an address in which a company director could be served with appropriate documents. However, the director's privacy could be protected by the director opting for the service address to be the company's registered office. Such an option might well be appropriate for a director to adopt in relation to a company operating in a field attracting controversy. Nevertheless, the register was to provide a specified address for service purposes. Section 1140 is, in my judgment, 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. There are however limiting words in subsection (8) that require further examination.
15. So far as the Defendant is concerned, it is common ground that as at [13.9.11][sic], 10 companies of which the Defendant was a director recorded the Barking address as his address for service and at least two other companies recorded the Romford address as his address for service. [Counsel for the defendant] acknowledged that if section 1140 applies, service on the Defendant has been properly effected by delivery of the claim form and associated documents at those two addresses. However, he observed that the apparent effect of section 1140, if read literally, is startling. The mere fact of a director recording an address for service in a company register will enable a claimant to serve him at that address for all purposes. That is what the section quite explicitly says, but is it what Parliament intended?
16. It is of note that under section 1141 the Secretary of State is able to specify conditions with which a service address must comply. The conditions that have been imposed are set out in Part 3 of the 2008 Regulations. The conditions do not say that an address in the United Kingdom must be provided and, equally, it is not necessary that the address need be a residential address. It would have been possible for the Secretary of State to have specified that a director could not comply with section 163(1)(b) by providing an address outside the United Kingdom, but he has not done so. It follows, therefore, that a director of an English company who is resident abroad is at liberty to specify an address, business or residential, that is outside the jurisdiction provided the conditions set out in Part 3 of the 2008 Regulations are complied with. In this case, the Defendant was at liberty to specify that his service address was in the United Arab Emirates rather than the Romford and Barking addresses. He did not do so.
17. Section 1140 (8) clearly limits the scope of section 1140 overall. However, it appears to me that the effect of section 1140(8) is only to prevent section 1140 permitting service of proceedings on a director who has provided a service address outside the United Kingdom. In such a case it is necessary to comply with the provisions of CPR Part 6 and to obtain permission to serve out of the jurisdiction.'[5a]
Master Marsh then dealt with a submission that '...the effect of section 1140, taking into account subsection (8) and its proper construction overall, is that it does not abrogate what he says is the general rule of conflicts law that a person may not be served at a time when he is not resident within the jurisdiction unless that absence is temporary.'. That is, whether this alleged general rule of conflicts of law (labelled the 'Chellaram principle') exists and whether, if it did, what effect it may have, if any, on section 1140 (paragraph 18). After considering[6]: (1) Chellaram & Another v Chellaram & Others (No. 2) [2002] 3 All ER 17 (2) City & Country Properties Limited v Kamali [2007] 1 WLR 1219 (3) Rolph v Zolan [1993] 1 WLR 1308; (4) SSL International Plc & Anor v TTK LIG Limited & others [2012] 1 WLR 1842; (5) The Theodohos [1977] 2 Lloyd's Rep 428, at paragraphs 18 - 24, Master Marsh in Key Homes (a service on an individual case) said, at paragraph 24 '...I am bound by the decision of the Court of Appeal in Kamali which is underpinned by the earlier decision by the Court of Appeal in Rolph that the Chellaram principle has no application to service of an individual under CPR rule 6.'
Master Marsh in Key Homes then considered: what is the effect of section 1140(8), from paragraphs 25 to 26:
'...Section 1140 in my judgment provides a basis for serving a director which is entirely outside the provisions for service in the CPR. It is a parallel code. The disapproval by the Court of Appeal in Kamali of the general principle enunciated by Lawrence Collins J in Chellaram was expressed in broad terms. It seems to me it is inherently unlikely that in passing section 1140 of the 2006 Act, Parliament can have intended what was clearly designed to be a new manner in which company directors could be served should be subject to a common-law principle which is directly contrary to the clear terms of the section. Nothing in section 1140 suggests that its provisions are limited such as to prevent service upon a director who is not resident within the jurisdiction. A new regime for service of documents on directors was introduced and was intended to have a wide effect. It is not prima facie unfair that a director of an English company who resides abroad, but who gives an address for service in England, should be vulnerable to being served at that address as a choice, or a deemed choice, has been made. And the solution is simple because the director can opt to provide an address abroad in appropriate circumstances. Section 1140(8) is explicable for the very reason that a director may opt to provide a service address which is outside the jurisdiction. Sub-section (8) is designed to make clear that by providing a foreign address, a director is not agreeing that the English court will have jurisdiction to deal with any dispute concerning him. As the sub-section makes clear, the general rule relating to permission for service outside the jurisdiction will still apply.
My conclusions in relation to section 1140 are that it does indeed provide a new set of provisions which are of broad effect. A director who is resident abroad is entitled to provide an address outside the jurisdiction and, if he does so, permission to serve out of the jurisdiction must be obtained before service can be effected. However, whether he is normally resident outside the jurisdiction or not, if he provides an address for service that is within the jurisdiction then he may be served at that address. It may be that [the defendant] did not, in fact, consider the matter but he has held himself out by giving a service address in England as a person who is willing to be served at that address. Parliament plainly intended to institute a revised system that places some importance on the service address being kept up-to-date. The person who has responsibility for doing that is the director himself. If he fails to make an adjustment to his address at a time when he claims to have changed residence from England to the UAE, he has no one to blame but himself. It is also relevant to note here that the Defendant nominated both the Romford and Barking addresses as addresses for service in relation to a number of new companies some time after he claims to have abandoned his residence in England. I therefore conclude that service was properly effected on the Defendant on [13.9.13] by service of the claim form, particulars of claim and response pack at both the Romford and Barking addresses.'
('Having reached that conclusion it is strictly unnecessary for me to deal with the remaining matters...' (paragraph 27) said Master Marsh, though Master Marsh in Key Homes did do so, from paragraphs 28 onwards)
Brouwer
In Brouwer, ICC Judge Jones noted Master Marsh's decision in Key Homes, and applied it to the facts in Brouwer[7].
Idemia
In Idemia, one issue was whether Mr Rahman, the third defendant, had been validly served. Mr Rahman had ceased to be resident in England, but, at the date of service of proceedings, 'Mr Rahman was a director of various UK companies (including Decatur) and that Morris Place was his "registered address" in relation to those companies' (paragraph 114).
On the validity of service, it was argued that Key Homes and Brouwer were wrongly decided, and that 'Service under s 1140(1) at a registered address within the jurisdiction will therefore only be valid if the person to be served is within the jurisdiction of the time of service' (paragraph 116). The deputy Judge went through the law[8]:
(a) he said 'it is right to say that Master Marsh should not have relied on the view expressed in Kamali by May LJ that "there is not, or at least no longer is, the fundamental principles such as Lawrence Collins J supposed". In my judgment, however, there is no tension between the actual decision in Key Homes and the common law principle that was re-stated by the Court of Appeal in SSL International.' (paragraph 121). At paragraph 122 and 123, the deputy Judge reasoned:
'First of all, the re-statement of the principle by the Court of Appeal in SSL International expressly recognises that it can only apply "absent a specific provision". Section 1140 is such a "specific provision", and must be applied in accordance with its terms in order to give effect to its statutory purpose.
Secondly, and perhaps more importantly, the Court of Appeal's re-statement of the principle (unlike the earlier formulation by Lawrence Collins J in Chellaram ) makes it clear that what is required is that the person served should be "subject to" the jurisdiction. Actual physical presence at the moment of service is not necessary.
As Teare J pointed out in his judgment in the Libyan Investment Authority [[2017] EWHC 781 (Comm)] case:
..temporary absence while on holiday is no bar to service by first class post. It is also why the resident of North Cumbria whose trip across the border to Scotland for lunch has so engaged the attention of judges can also be served by first class post, notwithstanding that he is temporarily out of the jurisdiction ..
124. Teare J was there speaking of persons who are subject to the jurisdiction of the court because they are resident within the jurisdiction, even though temporarily absent. However, there are many other ways in which persons can make themselves subject to the jurisdiction of the court, though not physically present here. One such way, provided for by s 1140, is to register a "service address" that is within the jurisdiction.'
(b) note Master Marsh's reference to: (i) DTI's consultation paper on Company Law Reform; (ii) commentary on clause 747 of the Bill as it went through Parliament, and said Master Marsh in Key Homes, could have also referred to to the following further provisions of the Companies Act 2006:
'Section 163(1)(b), which requires that a company's register of directors must contain (interalia) a "service address" for each director (and s167 , which requires those particulars to be notified to the registrar);
Section 1142 , which provides that:
Any obligation under the Companies Act to give a person's address is, unless otherwise expressly provided, to give a service address for that person
Section 1141(1) , which states that:
In the Companies Acts a "service address" in relation to a person means an address at which documents may be effectively served on that person
and to the Companies 2006 (Annual Return and Service Addresses) Regulations 2008, which specify that a "service address":
..Must be a place where (a) the service of documents can be affected by physical delivery; and (b) the delivery of documents is capable of being recorded by the obtaining of an acknowledgement of delivery.'
(c) he concluded, at paragraphs 128 and 129:
'These materials, and the ordinary and natural meaning of the words used in s 1140 itself, all show that the statutory intention was to have a definitive public record of the address at which the persons within this section could validly and effectively be served. That purpose would entirely be defeated if the validity of the address on the register depended upon the accident of whether the person concerned was physically present within the jurisdiction at the moment of service.
A company director or secretary resident abroad is under no obligation to register an address for service that is within the jurisdiction. Mr Rahman could (and should, if he wished to avoid the jurisdiction of the English courts over him) have changed his registered address to his new address in Bangladesh when he ceased to be resident in England. He did not do so. His omission to do so meant that he remained subject to the jurisdiction of the English court, by virtue of having a registered service address that was within the jurisdiction.'
PJSC Bank
This issue of whether s.1140 should be interpreted as permitting a director to be served with proceedings at his Companies House registered address, even if he is not physically present within the jurisdiction at the time of service, arose again in PJSC Bank. Under the heading 'Has the first defendant been validly served?', the Flaux C:
(a) posed the question/issue for consideration:
'...whether service of the proceedings on the first defendant at 55 St James's Street, London SW1 (the registered address of Ferrexpo plc also shown in Form 288a as his "usual residential address") was good service under section 1140 of the Companies Act 2006.'
(b) noted that, '[a]t the time that the proceedings were served at that address on 12 February 2021, the first defendant was not in the jurisdiction, but was living in Dubai.'. Similarly, at paragraph 48, Flaux C said that '...at the time of service in February 2021, the Companies House records showed his residential address as the St James's Street address.'
(c) recorded the first defendant's argument - that '...section 1140(8) expressly preserves the common law requirement that if the defendant is not present in the jurisdiction, permission to serve him out of the jurisdiction, in this case in Dubai, must be obtained under one of the jurisdictional gateways in para. 3.1 of PD6B of the CPR.' (paragraph 49).
After considering various authorities[9], Flaux C rejected this argument. At paragraph 55, Flaux C in PJSC Bank said:
'The whole point of section 1140 is that where a director has provided a "registered address" in the sense set out in subsection (4), which encompasses the "usual residential address" provided for in Form 288a, and that address is within the jurisdiction, the effect of the section is that the director can be served with proceedings at that address even if he is not physically present within the jurisdiction at the time of service. The position is different if the address given on the Form or in the records held at Companies House is an address outside the jurisdiction. As Master Marsh explained in Key Homes that is the situation covered by section 1140(8): if the "service" address provided is outside the jurisdiction, section 1140 cannot be used to effect service and the normal rules requiring permission to serve out of the jurisdiction to be obtained apply.'
Consequently, at paragraph 56, Flaux C held that '...the first defendant was properly served with the proceedings at the St James's Street address under section 1140, even though he was resident in Dubai at the time.'
Farrer
In Farrer, the defendant was a businesswoman, US citizen, resident in Switzerland. In 2018, the defendant instructed the claimant (a firm of solicitors based in London) has her solicitors. Subsequently, the claimant: (a) ceased to act for the defendant, and (b) alleged that the defendant owed, but had failed to pay, the claimant's solicitors fees. In time, a claim was issued by the claimant, against the defendant, for c.£187,000 (the 'Claim') (paragraph 12).
The defendant '...or her companies also use, or have used, three addresses in London; one in WC2, one in SW1 and one in SW5.' (paragraph 2) and '...service was effected at two London addresses used by the defendant for companies of which she was then or is a director.' (paragraph 13). Though shortly after, the defendant emailed the claimant's solicitor, stating that she had heard that a claim had been made (paragraph 14), 'The defendant did not acknowledge service. Default judgment was then obtained on [10.12.19]' (paragraph 15). On c.20.1.19, the defendant applied to set the default judgment aside (paragraph 21). On 20.1.19, the Court made a CPR r.71 standard order - requiring the defendant to attend the Royal Courts of Justice on 5.3.20 to provide: (a) information about her means for the purposes of enforcement; (b) produce documents to the court and (c) answer questions on oath ('Oral Examination'). On 27.2.20, the defendant applied for a stay of execution and an adjournment of the Oral Examination, which was heard on 4.3.20 by Saini J. At the 4.3.20 hearing:
(a) '...the defendant dropped the argument about validity of service, effected under s 1140 of the Companies Act 2006 (the 2006 Act), and that the defendant does not have a complete defence.' (paragraph 29).
(b) Saini J said he was not in a position to judge the merits of the default judgment set aside application (paragraph 31)
Saini J refused the application.
Subsequently, the defendant 'applied to "restore" the application to set aside the default judgment and added a human rights argument about service, seeking a declaration of incompatibility. The application she wished to "restore" was that originally made on or about 20 January 2020 to set aside the default judgment.' (paragraph 51). The defendant contended:
(1) '...where service is effected under s 1140 of the 2006 Act default judgment may not be obtained.' (paragraph 64); alternatively,
(2) 'There was...no case in the books such as this, where (i) the claimant knows the defendant resides outside this jurisdiction; (ii) the business address at which the defendant was served had not previously been used for dealings between the parties, and (iii) the claimant made no attempt to bring the proceedings to the defendant's attention.' (paragraph 66). Furthermore, that:
'...the claimant had sent pre-action correspondence to a different email and postal address and then purported to use s 1140 to support service under that provision (at an address provided to Companies House of a company of which the defendant is a director) before obtaining default judgment.'
This, it was contended, '...was unfair and outside the service rules in CPR rule 6. The cross-reference in rule 6.3(2)(b) to service under the 2006 Act should not be interpreted so as to apply to service on an individual under s 1140 in her capacity as an individual.' (paragraphs 67-68). These interpretations were driven, it was said, by reasons of fairness (paragraph 70). '
'A person against whom default judgment is obtained may not know of the proceedings and may be denied the opportunity to defend against them before judgment is entered. [Counsel for the defendant] referred to the discussion of the issue in the context of article 6 of the European Convention on Human Rights in Akram v Adam [2005] 1 WLR 1762 CA, in the judgment of Brooke LJ at [41]–[43].'
Under the heading 'First Issue: Whether the Default Judgment Should Be Set Aside', Kerr J said
(1) the judgment entered was not irregular (paragraph 94); the concession made by the defendant on 4.3.20 had been correct (paragraph 96).
(2) at paragraphs 96 to 98:
'The decision and reasoning of the Chancellor in the PJSE Bank case, applies directly to this case. It legitimises service on a company director but in the capacity of an individual not corporate person under s 1140 of the 2006 Act at the company address until 14 days after that address is cancelled at Companies House.
...there is no limit to the purpose for which that service can be effected, whether it be of a claim in tort, contract, debt or other proceedings. Nor is there any basis for excluding that mode of service where default judgment is sought. The rules do not so provide expressly and I decline to read into them any implied exclusion for default judgment.
There is nothing unfair about using s 1140 to serve a claim which is then subject to a default judgment. A company director making use of the privilege of incorporation in this country must also accept the burdens and other consequences of that. That means monitoring receipt of documents at the given address while it is in use for the company and for 14 days thereafter.'
On the facts of Farrer, Kerr J said, at paragraph 99:
'It was up to the defendant to do that. It is not the claimant's concern if she failed to do so, any more than it would be if she had been served at her home and had not bothered to open the envelope containing the claim documents before a default judgment was obtained. In both cases, the served party is unaware of the claim until after judgment. In neither case is that unfair.'
SIMON HILL © 2025
BARRISTER
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[1] Section 1140 of the Companies Act 2006 is set out in full in another footnote, but for convenience, section 1140(2) of the Companies Act 2006, which contains the full list of capacities, is set out below:
'(2) This section applies to -
(a) a director or secretary of a company;
(aa) a person who is a registrable person or a registrable relevant legal entity in relation to a company (within the meanings given by section 790C);
(b) in the case of an overseas company whose particulars are registered under section 1046, a person holding any such position as may be specified for the purposes of this section by regulations under that section;
(c) a person appointed in relation to a company as -
(i) a judicial factor (in Scotland),
(ii) an interim manager appointed under section 76 of the Charities Act 2011 or section 33 of Charities Act (Northern Ireland) 2008, or
(iii) a manager appointed under section 47 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27).'
[2] The Companies Act 2006, section 1139 is entitled 'Service of documents on company' and reads:
'(1) A document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company's registered office.
(2) A document may be served on an overseas company whose particulars are registered under section 1046–
(a) by leaving it at, or sending it by post to, the registered address of any person resident in the United Kingdom who is authorised to accept service of documents on the company's behalf, or
(b) if there is no such person, or if any such person refuses service or service cannot for any other reason be effected, by leaving it at or sending by post to any place of business of the company in the United Kingdom.
(3) 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.
(4) Where a company registered in Scotland or Northern Ireland carries on business in England and Wales, the process of any court in England and Wales may be served on the company by leaving it at, or sending it by post to, the company's principal place of business in England and Wales, addressed to the manager or other head officer in England and Wales of the company. Where process is served on a company under this subsection, the person issuing out the process must send a copy of it by post to the company's registered office.
(5) Further provision as to service and other matters is made in the company communications provisions (see section 1143).'
[3] The Companies Act 2006, section 1140 is entitled 'Service of documents on directors, secretaries and others' and reads (in it entirety):
'(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;
(aa) a person who is a registrable person or a registrable relevant legal entity in relation to a company (within the meanings given by section 790C);
(b) in the case of an overseas company whose particulars are registered under section 1046, a person holding any such position as may be specified for the purposes of this section by regulations under that section;
(c) a person appointed in relation to a company as -
(i) a judicial factor (in Scotland),
(ii) an interim manager appointed under section 76 of the Charities Act 2011 or section 33 of Charities Act (Northern Ireland) 2008, or
(iii) a manager appointed under section 47 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27).
(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.
(5) If notice of a change of that address is given to the registrar, a person may validly serve a document at the address previously registered until the end of the period of 14 days beginning with the date on which notice of the change is registered.
(6) Service may not be effected by virtue of this section at an address-
(a) if notice has been registered of the termination of the appointment in relation to which the address was registered and the address is not a registered address of the person concerned in relation to any other appointment;
(b) in the case of a person holding any such position as is mentioned in subsection (2)(b), if the overseas company has ceased to have any connection with the United Kingdom by virtue of which it is required to register particulars under section 1046.
(7) Further provision as to service and other matters is made in the company communications provisions (see section 1143).
(8) Nothing in this section shall be read as affecting any enactment or rule of law under which permission is required for service out of the jurisdiction.'
[4] The Companies Act 2006, section 1140 is entitled 'The company communications provisions' and reads (in its entirety):
'(1) The provisions of sections 1144 to 1148 and Schedules 4 and 5 (“the company communications provisions”) have effect for the purposes of any provision of the Companies Acts that authorises or requires documents or information to be sent or supplied by or to a company.
(2) The company communications provisions have effect subject to any requirements imposed, or contrary provision made, by or under any enactment.
(3) In particular, in their application in relation to documents or information to be sent or supplied to the registrar, they have effect subject to the provisions of Part 35.
(4) For the purposes of subsection (2), provision is not to be regarded as contrary to the company communications provisions by reason only of the fact that it expressly authorises a document or information to be sent or supplied in hard copy form, in electronic form or by means of a website.'
[5a] The White Book 2024 commentary, also considers: (a) the wider sections in the Companies Act 2006; and (b) Companies Act 2006 (Annual Return and Service Addresses) Regulations 2008 (SI 2008/3000)). In the White Book 2024, paragraph 6.3.10, under the heading 'Service on directors and company secretaries, etc.' it states:
'Section 163 of the 2006 Act requires a company to enter a service address for each of its directors in its register of directors; s.167 includes this information among the director’s particulars of which the company must notify the Registrar of Companies. There is similar provision for company secretaries in ss.276 and 277. Section 1140 of the 2006 Act ensures that a document may be effectively served on these company officers at the service address filed under the Act. These are new provisions concerning service on directors, company secretaries (including in insolvency proceedings, judicial factors, receivers and managers) or those specified for overseas companies. This allows the residential addresses of such persons to be withheld. The service address is the one publicly available in the register (which may or may not be the usual residential address). This address is valid for all service (not just matters to do with the company) until: (1) 14 days after the registration of a change of address; (2) all appointments for which this is the registered address have terminated; or (3) if, in respect of an overseas company, it has ceased to have the necessary connection to the UK for registration. By s.1142 unless the contrary is stipulated, all obligations to give an address in the Companies Acts are deemed to be obligations to give the service address. Section 1141 allows the Secretary of State to make regulations, subject to negative resolution, specifying the conditions that have to be met for an effective service address (see the Companies Act 2006 (Annual Return and Service Addresses) Regulations 2008 (SI 2008/3000)). Regulation 10 provides that: “For the purposes of section 1141 of the Companies Act 2006 (conditions with which a service address must comply) the conditions are that the service address must be a place where-
(a) the service of documents can be effected by physical delivery; and
(b) the delivery of documents is capable of being recorded by the obtaining of an acknowledgement of delivery.”
Advantage may also be taken for service of the new provisions on company communications in s.1143.'
[5] In Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402, Master Marsh, at paragraph 9, also noted the absence of any real substantive commentary on the point, in the then current White Book.
[6] In Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402, Master Marsh said, at paragraphs 18 to 24:
'18. [Counsel for the defendant] submitted that the effect of section 1140, taking into account subsection (8) and its proper construction overall, is that it does not abrogate what he says is the general rule of conflicts law that a person may not be served at a time when he is not resident within the jurisdiction unless that absence is temporary. It is therefore necessary to consider whether such a general rule of conflicts law exists and, if so, what effect it may have, if any, on section 1140.
19. In Chellaram & Another v Chellaram & Others (No. 2) [2002] 3 All ER 17 Lawrence Collins J. said at paragraph 47:
“…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.”
That dictum has been considered by the Court of Appeal in two cases which appear to express irreconcilable views about it. In City & Country Properties Limited v Kamali [2007] 1 WLR 1219 the Court of Appeal considered the dictum from Lawrence Collins J in the light of a previous decision of the Court of Appeal concerning the provisions of the CCR – Rolph v Zolan [1993] 1 WLR 1308. The decision in Rolph related to the CCR that were in force prior to the introduction of the CPR. Kamali considered the Rolph case in the light of the introduction of the CPR and whether or not the rule of law expressed in the judgment of Lawrence Collins J. in Chellaram remained correct. May LJ, gave the leading judgment. At paragraph 12 he said:
“12. In my judgment, there is not, or at least no longer is, a fundamental principle such as Lawrence Collins J. supposed. Further, I do not think that he was substantially correct to say, as he did in paragraph 46 of Chellaram's case [2002] 3 All ER 17, that Rolph's case [1993] 1WLR 1305 was not binding. In my view, if it is not strictly binding, it is plainly applicable and not in substance distinguishable.”
Later in the same paragraph he said:
“The courts reasoning and conclusion in Rolph's case are not affected by the existence of provisions enabling an application to be made for service out of the jurisdiction.”
20. Neuberger LJ agreed with May LJ. His analysis was that CPR rules 6.2 to 6.5 did not exclude service in accordance with their terms simply because the defendant is out of the jurisdiction. He considered it was inappropriate to imply the common law principle identified in Chellaram into CPR rules 6.2 to 6.5.
21. Wilson LJ concurred with the reasons given in the judgment of May LJ and Neuberger LJ:
“… particularly because of my disinclination to accept, without express mandate in the new procedure code, that inquiry into the validity of service of the claim form should depend upon where the Defendant turns out to have happened to be present on the day of the deemed service and, indeed, my concern that the enquiry would thus often degenerate into a difficult assessment of the truth of his assertion in such regard”.
22. In Kamali the claim form was served on the defendant at his place of business at a time he was abroad. The application of the principle described by Lawrence Collins J. would have had, therefore, a stark effect. Nevertheless, all three judgments of the members of the Court of Appeal clearly disapproved of Lawrence Collins J's dictum in Chellaram and held that the principle had no application to service of proceedings under CPR rules 6.2 to 6.5.
23. In SSL International Plc & Anor v TTK LIG Limited & others [2012] 1 WLR 1842 a differently constituted Court of Appeal reached the opposite conclusion and Kamali was distinguished. However, the facts in SSL International were markedly different from those in Kamali. SSL International concerned service on a company rather than an individual and the issue concerned the proper construction of CPR rule 6.5(3)(b). The Court of Appeal held that the rule did not permit service of a claim form on a company which did not carry on business within the jurisdiction by leaving it with a person holding a senior position within the company. Stanley Burnton LJ considered the decision of Brandon J, in The Theodohos [1977] 2 Lloyd's Rep 428. In that case the judge concluded at page 431:
“In my view the authorities to which I have been referred compel me to reject Mr Longmore's submission, and to hold that, unless a foreign company is carrying on business as a place within the jurisdiction, it cannot be served with process within the jurisdiction, either by the method employed in the present case or at all”.
That decision was made in a context of the provisions of RSC Ord 65, r3 which expressly permitted personal service of a document on a company by serving it on an officer of the company. The qualification to that rule as expressed in The Theodohos remained an established principle which Stanley Burnton LJ (paragraph 49) described as representing a fundamental rule of the common law. The question he had to consider was whether the CPR had changed the position. Having considered the decision in Rolph, the facts of which he described as “extraordinary” and the decision in Kamali, he went on to say:
“56. I respectfully entirely agree with the decision in City & Country Properties Limited v Kamali. In that case, the defendant carried on business, and presumably resided, in this country (indeed, the claim was for unpaid rent due under the lease of his business premises), and relied on his temporary absence from the jurisdiction as a reason why the claim form had not been validly served. He was, by reason of his business if not his residence, subject to the jurisdiction. It is a very different thing to hold that, in effect, a company which has never had and has no presence within the jurisdiction may be validly served in this country, not by way of substituted service, but as of right if a director happens to be in this country. The artificiality in the present case of the Claimants serving TTK by personal service on their own employee accentuates the unreasonableness of the position if the Claimants are correct.
57. It is a general principal of common law that absent specific provision (as in the rules for service out of the jurisdiction) the courts only exercise jurisdiction against those subject to, i.e. within the jurisdiction. Temporary absence, for instance on holiday, does not result in a person not being subject to the jurisdiction. In my judgment, Lawrence Collins J's statement of principle in Chellaram …was correct if read with that qualification, and was not inconsistent with the decision in City & County Properties v Kamali …”
24. I am bound to say, with respect, that I do not find it easy to reconcile Stanley Burnton LJ's acceptance of the correctness of the decision in Kamali with his approval of Lawrence Collins J's statement of principle in Chellaram (with the qualification he adds). It appears to me that the judgments in Kamali are expressed in wide terms and construe the provisions of CPR Rule 6, so as to exclude the principle described by Lawrence Collins J in Chellaram. However, SSL International relates only to the provisions of CPR rules 6.5(3)(b) concerning service of a claim form on a company. This claim, and Kamali, relate to service on an individual. Although the distinction is a limited one, I consider that I am bound by the decision of the Court of Appeal in Kamali which is underpinned by the earlier decision by the Court of Appeal in Rolph that the Chellaram principle has no application to service of an individual under CPR rule 6.'
[7] In Brouwer v Anstey (also known as Re Energy Corrector Ltd) [2019] EWHC 144 (Ch) ('Brouwer'), there has been an unfair prejudice petition under s.994 of the Companies Act 2006. Judgment was entered, but the issue arose whether the judgment should be set aside, amongst others, because of defective service of 'all relevant applications and orders' (paragraphs 9 + 18). ICC Judge Jones said, at paragraphs 29 to 32:
'29. ...a further submission of [counsel for the petitioner] is that section 1140 of the Companies Act 2006 applies. As a result, [the defendant's] address for service of documents on directors for the Company at Companies House is a permitted service address.
30. The section 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 has no bearing on the person's responsibilities as director or secretary. This provision also applies to the address on the public record of various other persons for whom the Act requires an address on the public record. Subsection (7) similarly makes clear that this section is supplemented by the "company communications provisions" referenced by section 1143."
31. This provision has been considered by Master Marsh (before his appointment to Chief Master) in Key Homes Bradford Ltd and Others v Rafik Patel [2015] 1 BCLC 402 ] [sic]. His decision is not binding upon me as precedent but it is a decision I should treat as strong persuasive authority. It appears within the White Book's notes and has stood as the law for nearly 5 years without appeal. Therefore, it should be followed absent obvious reason for not doing so. It makes no difference that he was specifically addressing the issue of permission out of the jurisdiction. The ratio of his decision applies generally to the service of proceedings and their documents.
32. The learned Master considered the purpose of the statutory provision, looked at its legislative history and concluded:
" 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."'
ICC Judge Jones then applied this to the facts of Brouwser. He said, at paragraphs 33 to 35:
33. Applying that decision, service of documents at 86-90 Paul Street, London was good service. [The defendant] was served, therefore, with: (i) the application and evidence in support for the hearing on 3 November 2017 when the specific disclosure order was made; (ii) the Order made on 3 November 2017; and (iii) the application for an unless order heard on 8 December 2017.
34. However, he was not served at 86-90 Paul Street, London (or at all for the reasons given when addressing the CPR Rules) with the Order made 8 December 2017 or the application for judgment issued on 27 December 2017. The request for judgment must be made by an application under CPR Part 23. The general rule is that such application must be served. There is no Rule, practice direction or court order in this case providing otherwise (see CPR Rule 23.4).
35. In my judgment the failure to serve the 8 December 2017 Order and the failure to give notice of it by service of the subsequent application means Mr Brouwer was not entitled to judgment under CPR Rule 3.5. Furthermore, the failure to serve the application means the hearing in which the Judgment was delivered should not have taken place. [the defendant's] application will succeed if time is extended.'
[8] In Idemia France SAS v Decatur Europe Ltd [2019] EWHC 946 (Comm); [2019] 2 All ER (Comm) 1020 ('Idemia'), High Court (Richard Salter QC sitting as a deputy High Court Judge) said, at paragraphs 113 to 130 (Mr Rahman was the third defendant; footnotes removed):
'113. Idemia, however, has a second basis for its argument that Mr Rahman has validly been served within the jurisdiction. It relies upon the Companies Act 2006 s 1140. This states that:
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;
(b) in the case of an overseas company whose particulars are registered under section 1046, a person holding any such position as may be specified for the purposes of this section by regulations under that section;
..
(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.
(5) If notice of a change of that address is given to the registrar, a person may validly serve a document at the address previously registered until the end of the period of 14 days beginning with the date on which notice of the change is registered.
(6) Service may not be effected by virtue of this section at an address—
(a) if notice has been registered of the termination of the appointment in relation to which the address was registered and the address is not a registered address of the person concerned in relation to any other appointment;
(b) in the case of a person holding any such position as is mentioned in subsection (2)(b), if the overseas company has ceased to have any connection with the United Kingdom by virtue of which it is required to register particulars under section 1046.
(7) Further provision as to service and other matters is made in the company communications provisions (see section 1143).
(8) Nothing in this section shall be read as affecting any enactment or rule of law under which permission is required for service out of the jurisdiction.
114. It is common ground that, both at the date when this action was commenced and at the time of service, Mr Rahman was a director of various UK companies (including Decatur) and that Morris Place was his "registered address" in relation to those companies for the purposes of s 1140.
115. The scope of s 1140 was considered by Master Marsh (before his appointment as Chief Master) in Key Homes Bradford Ltd v Patel. Master Marsh held that the effect of s 1140 is that, when a company director gives an address for service in England and Wales, he can validly be served at that address, even if he is domiciled and resident overseas. Master Marsh's decision was recently followed and applied by ICC Judge Jones in Brouwer v Anstey.
116. It is also common ground that, if the decision in Key Homes is correct, Mr Rahman has been validly served at Morris Place, and that the English court therefore has jurisdiction over him. What [counsel for Mr Rahman submits] is that Key Homes was wrongly decided, and should not be followed. In [counsel for Mr Rahman's] submission (and contrary to the view taken by Master Marsh), the fundamental principles of the common law have not been abrogated by this statutory provision. Service under s 1140(1) at a registered address within the jurisdiction will therefore only be valid if the person to be served is within the jurisdiction of the time of service. That that is the case is shown, in [counsel for Mr Rahman's] submission, by s 1140(8) which expressly preserves "any .. rule of law under which permission is required for service out of the jurisdiction".
117. This fundamental principle of the common law was considered by Master Marsh in his judgment in Key Homes. He began by citing the well-known statement of the principle by Lawrence Collins J (as he then was) in Chellaram v Chellaram (No 2) that:
..[I]t 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.
118. After examining the consideration of this principle by the Court of Appeal in the cases of Rolph v Zolan; City & Country Properties Limited v Kamali; and ...SSL International Plc v TTK LIG Ltd, Master Marsh concluded that that principle did not preclude service under s 1140 on a registered address within the jurisdiction from being effective, even if the person to be served was not in fact resident or physically present within the jurisdiction at the time of service:
Section 1140 in my judgment provides a basis for serving a director which is entirely outside the provisions for service in the CPR. It is a parallel code. The disapproval by the Court of Appeal in Kamali of the general principle enunciated by Lawrence Collins J in Chellaram was expressed in broad terms. It seems to me it is inherently unlikely that in passing s 1140 of the 2006 Act, Parliament can have intended what was clearly designed to be a new manner in which company directors could be served should be subject to a common-law principle which is directly contrary to the clear terms of the section. Nothing in s 1140 suggests that its provisions are limited such as to prevent service upon a director who is not resident within the jurisdiction. A new regime for service of documents on directors was introduced and was intended to have a wide effect. It is not prima facie unfair that a director of an English company who resides abroad, but who gives an address for service in England, should be vulnerable to being served at that address as a choice, or a deemed choice, has been made. And the solution is simple because the director can opt to provide an address abroad in appropriate circumstances.
119. In [counsel for Mr Rahman's submission], this reasoning it is not consistent with the analysis of the authorities by Warren J in Clavis Liberty Fun I LP v Revenue & Customs Commissioners [[2015] UKUT 72 (TCC), [2015] 1 WLR 2949], which was adopted by Teare J in Libyan Investment Authority v SGA Société Général [2017] EWHC 781 (Comm)]. In those two cases, both of which were concerned with witness summonses, Warren J and Teare J accepted as authoritative the following statement of principle by Stanley Burnton LJ in SSL International:
It is a general principle of the common law that, absent a specific provision, as in the rules for service out of the jurisdiction, the courts only exercise jurisdiction against those subject to, i.e. within the jurisdiction.
and noted the approval by Stanley Burnton LJ of Lawrence Collins J's dictum in Chellaram, "if read with that qualification" - that is, if the reference to persons "present in the jurisdiction" is read as meaning persons "subject to, ie within, the jurisdiction".
120. In [counsel for Mr Rahman's] submission, the analysis of the authorities by Warren J in Clavis shows that Master Marsh fell into error in relying on "the disapproval by the Court of Appeal in Kamali of the general principle enunciated by Lawrence Collins J in Chellaram". [Counsel for Mr Rahman] relies upon Warren J's statement that he (like Master Marsh) was "clearly bound by" the explanation of Kamali given by the Court of Appeal in the later SSL International case, "even though there might be perceived a tension between the reasoning of May LJ (adopted by Wilson LJ) in [Kamali] and the reinstatement, if I can put it that way, [in SSL International ] of the fundamental principle stated in Chellaram".
121. Like Master Marsh, Warren J and Teare J, I too am bound by the decision and reasoning of the Court of Appeal in SSL International. It seems to me that [counsel for Mr Rahman] is therefore right to say that Master Marsh should not have relied on the view expressed in Kamali by May LJ that "there is not, or at least no longer is, the fundamental principles such as Lawrence Collins J supposed". In my judgment, however, there is no tension between the actual decision in Key Homes and the common law principle that was re-stated by the Court of Appeal in SSL International.
122. First of all, the re-statement of the principle by the Court of Appeal in SSL International expressly recognises that it can only apply "absent a specific provision". Section 1140 is such a "specific provision", and must be applied in accordance with its terms in order to give effect to its statutory purpose.
123. Secondly, and perhaps more importantly, the Court of Appeal's re-statement of the principle (unlike the earlier formulation by Lawrence Collins J in Chellaram) makes it clear that what is required is that the person served should be "subject to" the jurisdiction. Actual physical presence at the moment of service is not necessary. As Teare J pointed out in his judgment in the Libyan Investment Authority case
..temporary absence while on holiday is no bar to service by first class post. It is also why the resident of North Cumbria whose trip across the border to Scotland for lunch has so engaged the attention of judges can also be served by first class post, notwithstanding that he is temporarily out of the jurisdiction..
124. Teare J was there speaking of persons who are subject to the jurisdiction of the court because they are resident within the jurisdiction, even though temporarily absent. However, there are many other ways in which persons can make themselves subject to the jurisdiction of the court, though not physically present here. One such way, provided for by s 1140, is to register a "service address" that is within the jurisdiction.
125. As for [[counsel for Mr Rahman's] reliance upon s 1140(8), the answer to that submission was cogently provided by Master Marsh in his judgment:
Section 1140(8) is explicable for the very reason that a director may opt to provide a service address which is outside the jurisdiction. Subsection (8) is designed to make clear that by providing a foreign address, a director is not agreeing that the English court will have jurisdiction to deal with any dispute concerning him. As the subsection makes clear, the general rule relating to permission for service outside the jurisdiction will still apply.
126. Section 1140 was a new provision in company legislation, and was brought fully into force on 1 October 2009. In paragraph [13] of his judgment, Master Marsh quoted the DTI's consultation paper on Company Law Reform dated March 2005 which, at paragraph 5.3, stated under the heading "Directors' Home addresses":
..[I]t is important that the service address functions effectively, and the law will be tightened to increase the obligation on directors to keep the records up-to-date, and ensure that the address on the public record is fully effective for the service of documents ..
Master Marsh also quoted the commentary on clause 747 of the Bill (which eventually became s 1140 of the Act) as it was going through Parliament:
This clause 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. Sub-section (3) provides that the address is effective even if the document has no bearing on the person's responsibilities as director or secretary.
127. Master Marsh might also have referred to the following further provisions of the Companies Act 2006:
127.1 Section 163(1)(b), which requires that a company's register of directors must contain (interalia) a "service address" for each director (and s167, which requires those particulars to be notified to the registrar);
127.2 Section 1142, which provides that:
Any obligation under the Companies Act to give a person's address is, unless otherwise expressly provided, to give a service address for that person
127.3 Section 1141(1), which states that:
In the Companies Acts a "service address" in relation to a person means an address at which documents may be effectively served on that person
and to the Companies 2006 (Annual Return and Service Addresses) Regulations 2008 specify that a "service address":
..Must be a place where (a) the service of documents can be affected by physical delivery; and (b) the delivery of documents is capable of being recorded by the obtaining of an acknowledgement of delivery., which
128. These materials, and the ordinary and natural meaning of the words used in s 1140 itself, all show that the statutory intention was to have a definitive public record of the address at which the persons within this section could validly and effectively be served. That purpose would entirely be defeated if the validity of the address on the register depended upon the accident of whether the person concerned was physically present within the jurisdiction at the moment of service.
129. A company director or secretary resident abroad is under no obligation to register an address for service that is within the jurisdiction. Mr Rahman could (and should, if he wished to avoid the jurisdiction of the English courts over him) have changed his registered address to his new address in Bangladesh when he ceased to be resident in England. He did not do so. His omission to do so meant that he remained subject to the jurisdiction of the English court, by virtue of having a registered service address that was within the jurisdiction.
130. In my judgment, therefore, Mr Rahman was validly served at Morris Place, and his challenge to that service and to the exercise by the English court of jurisdiction over him on that basis must be dismissed.'
[9] In PJSC Bank "Finance and Credit" v Zhevago [2021] EWHC 2522 (Ch) ('PJSC Bank'), Flaux C said, at paragraphs 49 to 56:
'49. The argument on behalf of the first defendant by Mr Paul McGrath QC is that section 1140(8) expressly preserves the common law requirement that if the defendant is not present in the jurisdiction, permission to serve him out of the jurisdiction, in this case in Dubai, must be obtained under one of the jurisdictional gateways in para. 3.1 of PD6B of the CPR. The difficulty with that argument is that it is contrary to a number of decisions at first instance. Mr McGrath QC invited me to determine that those cases were wrongly decided and to decline to follow them, so it is necessary to consider that line of authority in a little detail.
50. The principal authority upon which the claimants rely is the decision of Richard Salter QC sitting as Deputy High Court Judge in the Commercial Court in Idemia France SAS v Decatur Europe Limited [2019] EWHC 946 (Comm) which concerned service of proceedings on a director who was resident out of the jurisdiction but who had given an address within the jurisdiction as his "registered address" under section 1140. The judge recognised that he was bound by the decision and reasoning of the Court of Appeal in SSL International Plc v TTK LIG Ltd [2011] EWCA Civ 1170, [2012] 1 WLR 1842 where Stanley Burnton LJ stated the principle:
"It is a general principle of the common law that, absent a specific provision, as in the rules for service out of the jurisdiction, the courts only exercise jurisdiction against those subject to, i.e. within the jurisdiction."
51. However, the judge found at [121] to [124] of his judgment that section 1140 was a "specific provision" which provided for the Court to exercise jurisdiction over persons who had given a registered address within the jurisdiction and that someone can be "subject to" the jurisdiction, here under section 1140, even if not physically present within the jurisdiction.
52. As for the defendant's reliance on section 1140(8) the judge considered that the answer to that point had been given by Master Marsh in his earlier judgment in Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402 as supported by the DTI consultation paper on Company Law Reform in 2005 and the commentary on what became section 1140 when it was going through Parliament. The judge said at [125] and [126]:
"125. As for [counsel for Mr Rahman's] reliance upon s 1140(8), the answer to that submission was cogently provided by Master Marsh in his judgment:
'Section 1140(8) is explicable for the very reason that a director may opt to provide a service address which is outside the jurisdiction. Subsection (8) is designed to make clear that by providing a foreign address, a director is not agreeing that the English court will have jurisdiction to deal with any dispute concerning him. As the subsection makes clear, the general rule relating to permission for service outside the jurisdiction will still apply.'
126. Section 1140 was a new provision in company legislation and was brought fully into force on 1 October 2009. In paragraph [13] of his judgment, Master Marsh quoted the DTI's consultation paper on Company Law Reform dated March 2005 which, at paragraph 5.3, stated under the heading "Directors' Home addresses":
'…[I]t is important that the service address functions effectively, and the law will be tightened to increase the obligation on directors to keep the records up-to-date, and ensure that the address on the public record is fully effective for the service of documents …'
Master Marsh also quoted the commentary on clause 747 of the Bill (which eventually became s 1140 of the Act) as it was going through Parliament:
'This clause 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. Sub-section (3) provides that the address is effective even if the document has no bearing on the person's responsibilities as director or secretary.'
53. The same conclusion as the judge reached in that case had been reached some three weeks earlier, albeit apparently without argument, by Jacobs J in Arcelormittal USA LLC v Essar Steel [2019] EWHC 724 (Comm). Permission to appeal was given in Idemia but the case settled before any judgment was given by the Court of Appeal. In the subsequent case of Njord Partners SMA Seal v Astir Maritime [2020] EWHC 1035 (Comm), Foxton J referred to those two cases and said:
"It is fair to say that the statutory effect which section 1140 has been held to have or assumed to have is surprising, albeit when the wording of the section is read, it is easy to see why such findings or assumptions have been made, I have decided to follow those judgments at first instance."
54. Both Waksman J in Republic of Mozambique v Safa (2020) 30 July (unreported) and Bryan J in Abu Dhabi Commercial Bank v Shetty [2020] EWHC 3423 (Comm) considered that these cases had placed the correct interpretation on section 1140 and followed them. More recent cases which have followed them have been where only one party was represented.
55. Despite the argument to the contrary by Mr McGrath QC, I consider those cases are correctly decided. The whole point of section 1140 is that where a director has provided a "registered address" in the sense set out in subsection (4), which encompasses the "usual residential address" provided for in Form 288a, and that address is within the jurisdiction, the effect of the section is that the director can be served with proceedings at that address even if he is not physically present within the jurisdiction at the time of service. The position is different if the address given on the Form or in the records held at Companies House is an address outside the jurisdiction. As Master Marsh explained in Key Homes that is the situation covered by section 1140(8): if the "service" address provided is outside the jurisdiction, section 1140 cannot be used to effect service and the normal rules requiring permission to serve out of the jurisdiction to be obtained apply.
56. In the circumstances, I consider that the first defendant was properly served with the proceedings at the St James's Street address under section 1140, even though he was resident in Dubai at the time.'