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||Neutral Citation Number:  EWCA Civ 20
||Case No: B1/2005/1231, B1/2005/0226, B1/2005/0964, B1/2005/1248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) THE POOLE COUNTY COURT (Deputy District Judge Mathews)
(2) THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION (Gray J)
(3) THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION, BRISTOL DISTRICT REGISTRY (His Honour Judge Darlow)
(4) THE MANCHESTER COUNTY COURT (His Honour Judge Tetlow)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||25th January 2006
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE DYSON
LORD JUSTICE NEUBERGER
|| (1) COLLIER
||- and -
(2) MARSHALL RANKINE & ANR
- and -
- and -
MARSDEN & ANR
- and -
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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(1) Mr. Christian Sweeney (instructed by Messrs Coles Miller) for the Appellant
Mr. Glyn Edwards (instructed by Messrs Lyons Davidson) for the Respondent
(2) Mr. Nik Yeo (instructed by Messrs Russell-Cooke) for the Appellant
Mr. Andrew Butler (instructed by Messrs Forsters) for the Respondent
(3) Mr. Christopher Sharp QC and Mr. John Livesey (instructed by Messrs John Hodge) for the Appellant
Mr. Michael de Navarro QC (instructed by Messrs Radcliffes Le Brasseur Bevan Brittan) for the Respondent
(4) Mr. Ronald Walker QC (instructed by Messrs Berrymans Lace Mawer) for the Appellant
Dr. K Naylor (instructed by Messrs Neil Millar & Co.) for the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Dyson LJ: this is the judgment of the court to which all its members have contributed.
- We heard over three days six appeals which raised points on CPR Part 6 (the rule relating to service), and CPR Part 7.6 (the rule relating to the extending of time for service of the claim form). These rules have generated an inordinate amount of jurisprudence. This is greatly to be regretted. The CPR were intended to be simple and straightforward and not susceptible to frequent satellite litigation. In this area, that intention has not been fulfilled. As a result, the explicit aims of the Woolf reforms to reduce cost, complexity and delays in litigation have been frustrated. We understand that the Civil Procedure Rule Committee will shortly embark on a review of the rules relating to service. This is a welcome development. These appeals have revealed yet again that these rules are difficult to understand and apply. In this judgment, we deal with four of the appeals.
- Collier v Williams (paras 41-49 below) is an appeal from District Judge Mathews, and was concerned with whether a claim form had been validly served on a firm of solicitors nominated by an insurance company for that purpose. The insurers argue that because the nominated solicitors did not themselves notify the serving solicitors that they were authorised to accept service, this service was invalid. This appeal raises issues as to the proper interpretation of CPR 6.4(2) and 6.5.
- Marshall and Rankine v Maggs (paras 50-105 below) is an appeal from Gray J. The three points of principle arising are (i) the meaning of "solicitor is acting for the party to be served" in CPR 6.5(5) and (6): if a solicitor is acting but does not confirm that he is authorised to accept service, are the methods of service contemplated by CPR 6.5(6) available to the claimant? (ii) the meaning of "last known residence" in the table of places for service in CPR 6.5(6): in particular is the honest and reasonable belief that a defendant resided at an address sufficient if the defendant has in fact never resided at that address? (iii) the correct approach to extending time for service of the claim form under CPR 7.6(2): was the guidance by this court in Hashtroodi v Hancock  EWCA Civ 652,  1 WLR 3206 being properly applied?
- Leeson v Marsden and United Bristol Health Care NHS Trust (paras 106-134 below), is an appeal from a decision of His Honour Judge Darlow. By virtue of a respondent's notice an issue is raised which has significance well beyond CPR 6 or CPR 7.6. If a claimant has issued a "without notice" application, and the court then refuses it on paper, has the court jurisdiction to reconsider whether to make the order or is the proper course for the claimant to appeal the order? The second issue is whether, if the court has jurisdiction, the guidance given in Hashtroodi's case was properly applied.
- Glass v Surrendran (paras 135-156 below), is an appeal from the decision of His Honour Judge Tetlow. It originally raised only the question whether the judge had exercised his discretion in accordance with Hashtroodi's case. However the appellant sought permission to amend his notice of appeal to raise the jurisdiction point referred to at para 4 above, it being a case where a "without notice" application had been refused on paper, but the district judge was prepared to reconsider the matter at a hearing requested by the claimant. The district judge then made an order allowing the application.
- The three issues of the most general significance raised by these four appeals are (i) the proper construction of CPR 6.4(2) and 6.5, (ii) the question whether a court has jurisdiction to reconsider an application made without notice and on paper, and (iii) the question whether the guidance in Hashtroodi's case is being properly followed. As regards Hashtroodi's case, guidance on whether it is being properly applied is best considered by reference to particular facts of the cases in which the issue arises. We deal with this at paras 85-88, 131-133 and 149-155 below. But we propose to deal with the first two issues before we come to the facts of the appeals in which they arise.
CPR 6.4, 6.5(5) and (6)
- One of the issues arising in Collier v Williams is whether the claim form was validly served on a firm of solicitors nominated by the defendant's insurance company to accept service in circumstances where the nominated solicitors did not notify the claimant's solicitors that they had been authorised to accept service. One of the issues arising in Marshall and Rankine v Maggs is whether the solicitors who were acting for the defendant in a general sense before proceedings were issued were "acting for the party to be served" within the meaning of CPR 6.5(6) for the purposes of service of the claim form if they had not given notification to the claimants' solicitor that they were authorised to accept service of the claim form. Since the resolution of both issues involves a detailed consideration of the rules for service contained in CPR 6, it is convenient to deal with these issues at the outset before we turn to the facts of the individual cases.
- So far as material, CPR 6 provides as follows:
"Methods of service—general
6.2 - (1) A document may be served by any of the following methods–
(a) personal service, in accordance with rule 6.4;
(b) first class post;
(c) leaving the document at a place specified in rule 6.5;
(d) through a document exchange in accordance with the relevant practice direction; or
(e) by fax or other means of electronic communication in accordance with the relevant practice direction.
(2) A company may be served by any method permitted under this Part as an alternative to the methods of service set out in–
(a) section 725 of the Companies Act 1985 (c.6) (service by leaving a document at or posting it to an authorised place);
(b) section 695 of that Act (service on overseas companies); and
(c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).
6.4 – (1) A document to be served may be served personally, except as provided in paragraph (2)
(2) Where a solicitor–
(a) is authorised to accept service on behalf of a party; and
(b) has notified the party serving the document in writing that he is so authorised,
a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.
(3) A document is served personally on an individual by leaving it with that individual.
(4) A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.
(5) A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with–
(a) a partner; or
(b) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
Address for service
6.5 - (1) Except as provided by Section III of this Part ] (service out of the jurisdiction) a document must be served within the jurisdiction.
(2) A party must give an address for service within the jurisdiction.
(3) Where a party–
(a) does not give the business address of his solicitor as his address for service; and
(b) resides or carries on business within the jurisdiction,
he must give his residence or place of business as his address for service.
(4) Any document to be served–
(a) by first class post;
(b) by leaving it at the place of service;
(c) through a document exchange; or
(d) by fax or by other means of electronic communication,
must be sent or transmitted to, or left at, the address for service given by the party to be served.
(a) a solicitor is acting for the party to be served; and
(b) the document to be served is not the claim form;
the party's address for service is the business address of his solicitor.
(Rule 6.13 specifies when the business address of a defendant's solicitor may be the defendant's address for service in relation to the claim form)
(a) no solicitor is acting for the party to be served; and
(b) the party has not given an address for service,
the document must be sent or transmitted to, or left at, the place shown in the following table.
|Nature of party to be served
||Place of service
||Usual or last known residence.
|Proprietor of a business
||Usual or last known residence; or
Place of business or last known place of business.
|Individual who is suing or being sued in the name of a firm
||Usual or last known residence; or
Principle or last known place of business of the firm.
|Corporation incorporated in England and Wales other than a company
||Principal office of the corporation; or
Any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
|Company registered in England and Wales
||Principal office of the company; or
Any place of business of the company within the jurisdiction which has a real connection with the claim.
|Any other company or corporation
||Any place within the jurisdiction where the corporation carries on its activities.
Any place of business of the company within the jurisdiction.
(7) This rule does not apply where an order made by the court under rule 6.8 (service by an alternative method) specifies where the document in question may be served."
Service of claim form by the court—defendant's address for service
6.13 - (1) Where a claim form is to be served by the court, the claim form must include the defendant's address for service.
(2) For the purposes of paragraph (1), the defendant's address for service may be the business address of the defendant's solicitor if he is authorised to accept service on the defendant's behalf but not otherwise."
Solicitors nominated to accept service who have not confirmed in writing that they are authorised to accept service in accordance with CPR 6.4(2)
- It seems surprising that it is even arguable that, where a defendant (or his insurer) has nominated a solicitor for service, the business address of that solicitor should not be the defendant's address for service unless the solicitor has notified the claimant in writing that he is authorised to accept service. CPR 6.5(2) and (4) are plain and unqualified on their face. A party must give an address for service within the jurisdiction (CPR 6.5(2)); and any document to be served by post or one of the other methods stated in CPR 6.5(4) must be sent or transmitted to, or left at, the address for service given by the defendant (CPR 6.5(4)). Why should these words not be given their natural meaning? In particular, why should the fact that the solicitor whose address for service the defendant has given has not confirmed in writing that he has authority to accept service mean that it is not the address for service?
- In Nanglegan v Royal Free Hampstead NHS Trust  EWCA Civ 127,  1 WLR 1043, the defendant's insurer notified the claimant's solicitor that the claim form should be served on named solicitors and by mistake the claim form was sent to the chief executive of one of the trust's hospitals. It was held by this court that this was not good service. It was said that this was the effect of CPR 6.5(2) and 6.5(4). Thorpe LJ said (para 10) in relation to CPR 6.5(2) to (5) that "it seems right that he [the defendant] should be in a position to nominate, at a very early stage, solicitors to accept service on his behalf, and the obligation must then be on the claimant to use that nomination." Buxton LJ said (para 22) that CPR 6.5(5) does not have the effect of exempting from the CPR 6.5(4) regime the claim form in circumstances where an address for service has been given by the party to be served. It is true that the nominated solicitors had written to the claimant's solicitors confirming that they were authorised to accept service and it was common ground that CPR 6.4, being a rule specifically dealing with personal service, had no application.
- But in Knight v Alberto-Culver Company Limited (8 April 2002) His Honour Judge Hickinbottom took a different view. In that case, the defendant's insurer nominated a solicitor for service of the claim form, but the solicitor did not confirm to the claimant that he was authorised to accept service. Judge Hickinbottom decided that service on the nominated solicitor would not have been good service. He held that CPR 6.4(2), requiring service on a solicitor if, but only if, the solicitor has given written confirmation to the party serving, is on its face not restricted to cases of personal service: it is of general application. He found support for that conclusion in the fact that, if CPR 6.4(2) is left out of account, CPR 6.5 and 6.13 contain no provision for service of the claim form on a solicitor other than by the court. That, he said, would be a surprising lacuna in the rules. He was of the view that CPR 6.4(2) defined when a solicitor was "acting" for the purposes of CPR 6.5(5) and (6): otherwise there was no provision which dealt with service on a solicitor who was authorised to accept service. He also relied on a decision of Morland J in Smith v Probyn  All ER (D) 250 to the effect that service on solicitors who were "acting" but not authorised to accept service was not good service. As part of his reasoning, Morland J treated CPR 6.4(2) as being of general application. Judge Hickinbottom also found support for his interpretation in some practical considerations. Mere nomination by a defendant of a solicitor as his address for service without more may have unwelcome consequences for the solicitor. Having regard to the importance of the solicitor's role in litigation (being "on the record" gives rise to rights and obligations), the need for some degree of formality in the form of a written authorisation would be understandable and desirable.
- In the appeal of Collier v Williams, Mr Edwards relies on the reasoning of Judge Hickinbottom. We cannot accept it. In our judgment, there is no reason not to give CPR 6.5(2) and (4) their natural and ordinary meaning. Although based on the concession that CPR 6.4(2) had no relevance, we consider that the approach adopted by this court in Nanglegan was correct. CPR 6.4 is concerned with personal service only and CPR 6.4(2) is only concerned with preventing personal service. There is no need to provide for an address for service if service is to be effected personally. CPR 6.5 is concerned with service by means other than personal service and provides rules for determining the address at which such other service may be effected. CPR 6.4 and 6.5 are, therefore, dealing with fundamentally different methods of service. Neither rule refers to the other.
- CPR 6.4(2) serves one purpose only. It is to prevent personal service where a solicitor is authorised to accept service and has notified the serving party in writing that he is so authorised, unless personal service is required by an enactment, rule, practice direction or court order. It is not its purpose to say anything about other methods of service. We should add that, if a defendant has given an address for service, including that of a solicitor, it is still open to the claimant to serve personally on the defendant unless he has received a notification in accordance with CPR 6.4(2). But if a claimant wishes to use one of the types of service referred to in CPR 6.5(4), for example, first class post, then if he has been provided with a solicitor's address as the address for service, he will not be able to post the document to the defendant himself: he must post it to the address of the solicitor.
- In our view, therefore, the language of the rules compels the conclusion that, where a defendant gives the claimant a solicitor's address for service, the claim form may validly be served at that address by one of the permitted methods of service. Judge Hickinbottom was influenced in reaching his decision by what he saw as a lacuna in CPR 6.5 and 6.13 if CPR 6.4(2) is not of general application. The argument is that CPR 6.5 and 6.13 do not contain provisions for service of the claim form on a solicitor except by the court under CPR 6.13. Judge Hickinbottom said (para 7): "Mere nomination by the defendant himself, or authorisation without such written confirmation are, in my view, insufficient for the purposes of endowing a solicitor with the requisite power and obligation to accept service on the defendant's behalf". We note that CPR 6.13(2) does not state that the defendant's solicitor must give written confirmation that he is authorised to accept service of the claim form by the court.
- We do not, however, accept that there is a lacuna, or one that demands recourse to CPR 6.4(2) in a context in which CPR 6.4 plainly does not apply. It is clear that the draftsman of CPR 6.5 had service of the claim form well in mind. The words in parenthesis in CPR 6.5(5) are important. They are intended to point to the circumstances where CPR 6.5 contemplates good service of the claim form on a solicitor. These words cannot have been intended merely to refer to what constitutes good service by the court. There would be little point in that. CPR 6.5 is concerned with the address where service is to be effected by the parties. CPR 6.13 is dealing with the defendant's address for service where service is to be effected by the court. CPR 6.13(2) provides that service can be effected on the defendant's solicitor "if he is authorised to accept service on the defendant's behalf, but not otherwise". In our judgment, the words in parenthesis in CPR 6.5(5) are intended to direct attention to CPR 6.13(2) and thereby to identify the circumstances when a claimant can serve a solicitor with a claim form.
"No solicitor acting for the party to be served": CPR 6.5(6)
- In Marshall and Rankine v Maggs, Gray J. said:
"56. That brings me to CPR 6.5 (5) and (6). In construing those rules it is necessary to have in mind also CPR 6.4 (1) and (2) as well as 6.5 (2) and (3). It appears to me that, reading all those rules together, the position is as follows: once the proceedings are on foot, ie the claim form has been served; documents which need to be served are to be served on the opposite parties' solicitor if he or she has one. If there is no solicitor acting then provided only that the opposite party has not given an address for service, service may be effected by sending the document in question to, or leaving it at, any of the places of service listed in the table to CPR 6.5.
57. But the position is different in relation to service of the claim form. The combined effect of 6.4 (2) and 6.5 (5)(b) is, as it appears to me, to require personal service of the claim form on any defendant, even if that defendant has a solicitor acting, unless that solicitor has notified the claimant that he is authorised to accept service and has notified the party to be served of that fact.
58. I cannot accept the suggestion of Mr. Yeo that in 6.5 (5) "acting" as to be construed to mean "instructed to accept service". That is not what 6.5 (5) says. If that was what it was intended to mean the draftsman would surely have used the words which appears in 6.4(2).
59. Nor do I think that Mr. Yeo is right when he says that the Rules Committee cannot have intended a defendant who has not instructed a solicitor to be in a worse position than a defendant who has done so (in the sense that the service options are wider in the latter case). I accept that the paramount objective underlying the relevant rules is to ensure that the proceedings are brought to the attention of the party to be served. If that party has instructed a solicitor the address could be obtained from the solicitor. If no solicitor is acting it may be impossible to ascertain the whereabouts of the party to be served. Wider service options are, therefore, necessary to achieve the objective."
- CPR 6.5(6) is on any view at least directed at the situation where the party to be served is a litigant in person and has not given an address for service. No solicitor is "acting" in any sense of the word. In these circumstances, it is open to the party wishing to serve to do so by personal service in accordance with CPR 6.4. But if he does not wish to use personal service, he must send, transmit or leave the document to be served at the place of service in accordance with the table set out in CPR 6.5(6). So much is clear. But what is meant by "no solicitor acting"?
- Both Mr Yeo and Mr Butler made elaborate submissions on these difficult rules. In summary, Mr Yeo contends that "acting" in CPR 6.5(5) must bear the same meaning as in (6), which, he submits, is "acting so that the solicitor can be served" or "acting in a capacity such that service can be effected on the solicitor". Anything less will mean that a claimant will not be able safely to use the table in CPR 6.5(6) and will have to have recourse to personal service under CPR 6.4 or to apply to the court for service by an alternative method under CPR 6.8. If that were the position, CPR 6.5(6) would be emasculated. Mr Butler submits that Gray J was correct. He contends that Mr Yeo is interpolating words into CPR 6.5(6) without justification. The words "solicitor acting" mean what they say. They refer to a solicitor acting for the client in the particular case and include one who does not have instructions to accept service. CPR 6.5(6) is intended to provide a means of service of last resort. If a claimant has any doubt as to whether a solicitor is "acting" so as to take the claimant outside CPR 6.5(6), there are alternative steps that he can take: personal service; asking squarely in correspondence for an address for service; making an application to the court for an extension of time for service or for an order under CPR 6.8 or for an order requiring the provision of an address for service or possibly even an order dispensing with service.
- We prefer the submissions of Mr Yeo. The practical effect of Mr Butler's submissions is that, where a solicitor is acting for a defendant but does not confirm that he has authority to accept service, the claimant will be unable to use the table in CPR 6.5(6). In practice, he will have to serve the claim form personally. The alternatives suggested by Mr Butler are likely to be time-consuming and uncertain of outcome. The CPR permit a wider range of methods of service than had been permitted under the Rules of the Supreme Court. Personal service remains a permitted method of service, but as Mr Adrian Zuckerman points out at para 4.20 of Civil Procedure (2003), postal service is a more satisfactory means of notification than personal service. Personal mobility is far greater than it used to be. It is difficult enough to locate a defendant's abode or place of business, without having to tie them down to a time and place where they might be served personally. Where the defendant is a litigant in person, there will be many situations in which the claimant will prefer to serve under CPR 6.5(6) rather than personally, and will be able to do so securely and effectively. But on the basis of Mr Butler's submissions (which were accepted by Gray J), where a defendant has a solicitor acting for him in a general sense, in practice a claimant will be compelled to serve personally rather than use CPR 6.5(6) in case the solicitor does not in fact have authority to accept service. We do not believe that this is what was intended. In our view, this unsatisfactory result can be avoided by interpreting the phrase "no solicitor acting" as meaning "no solicitor acting so that he can be served". We put it that way because, unless the claimant has been made aware by the defendant or his solicitor that the solicitor is authorised to accept service, the claimant would be ill-advised to serve on the solicitor. It is this factor that led Gray J. back to CPR 6.4(2) and personal service, but, as we have already said, where CPR 6.4(2) applies it prevents personal service. CPR 6.5(6) was not intended to be a trap for the unwary. If the claimant knows that a solicitor is authorised to accept service, then it is right that the methods of service set out in CPR 6.5(5) should not be available. But if the claimant is told that a solicitor is "acting", but that he is not authorised to accept service, it makes no sense to insist that personal service be used. It must have been intended that in these circumstances CPR 6.5(6) could be used. Even more obviously must it have been intended that CPR 6.5(6) could be used where the claimant does not even know that a solicitor is acting for the defendant.
Paper applications without notice
- In the appeals before us we have examples of solicitors seeking to apply at the last moment before the life of an issued claim form expires for extensions of time for service. The rules allow such an application to be made without notice (see CPR 7.6(4)(b)). CPR 23.8 also permits a court to deal with an application without a hearing if:
"(a) the parties agree as to the terms of the order sought;"
(b) the parties agree that the court should dispose of the application without a hearing, or
(c) the court does not consider that a hearing would be appropriate."
- By CPR PD 23 para 11.2 it is provided that "where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order of its own initiative." This is a reference to the power of the court to make orders of its own initiative under CPR 3.3. This rule provides:-
"3.3— Court's power to make order of its own initiative
(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
(Part 23 sets out the procedure for making an application)
(2) Where the court proposes to make an order of its own initiative–
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes–
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days' notice of the hearing.
(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made–
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application."
- It is also necessary to refer to CPR 3.1(7) which provides:-
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
- It seems from the application forms before us that the standard forms at all courts contain a box which allows the person making the application to tick so as to indicate his preference for having the application considered on paper or having a hearing. In the cases before us, there are examples of without notice applications for an extension of time for service of the claim form made on paper, and applications made with a request for a hearing. Even in urgent cases, applications have been made on paper in the hope that the court could deal with them as quickly as possible. But sometimes the court has not been able to deal with them until after the date from which an extension was being sought. In other urgent cases, a hearing has been sought and the application has been heard on the day on which it was made.
- We understand that, in relation to without notice applications made on paper, courts are taking the view that, if the order refuses the application or does not give the applicant all the relief sought, it is open to the applicant to ask the court to reconsider the matter and seek a different order, rather than appeal. This standard practice is reflected in the judicial template.
- Mr de Navarro QC submits that the court has no jurisdiction to reconsider the matter at the behest of the applicant. He contends that, if an applicant makes a without notice application which is dismissed without a hearing, the only route of challenge open to the applicant is an appeal. Mr Sharp QC on the other hand submits that the court has jurisdiction to reconsider the matter in such circumstances and even has jurisdiction to entertain successive paper applications for the same relief. He advances three alternative arguments. The first is as follows. CPR 23.8 deals with applications without a hearing. CPR 23.8(a) does not apply since the parties have not agreed terms. CPR 23.8(b) does not apply because the parties have not agreed that the court should dispose of the application without a hearing. But CPR 23.8(c) does apply. The steps in the argument in support of the proposition that CPR 23.8(c) applies are as follows:
i) Where a request is made to have an application disposed of without a hearing, it must be considered by the master or district judge to decide whether it is suitable for consideration without a hearing (CPR PD 23 para 2.3);
ii) Where the master or district judge agrees, the court will so inform the applicant and the respondent and may give directions for the filing of evidence (CPR PD 23 para 2.4); and
(iii) Where the court so informs the parties, it follows that the court "does not consider that a hearing would be appropriate" (CPR 23.8(c));
iv) under CPR PD23 para 11.2, where CPR 23.8(c) applies the court treats the application as if it is proposing to make an order on its own initiative; and
v) thus the order made by the court must be treated as made on the court's own initiative and under CPR 3.3 (5) the applicant as a party affected by the order, can apply to have it set aside or varied.
- The second argument involves a direct route to CPR3.3(5).The argument is that the court has to consider whether a hearing is appropriate, and when the court concludes that it is not, it is deciding that point on its own initiative and that provides a direct route to CPR3.3(5).
- The third argument is based on the general power to vary or revoke under CPR3.1(7).
- The direct route to CPR 3.3(5) seems to us unarguable. CPR 3.3 recognises that the court can exercise its powers on an "application" or "of its own initiative". CPR3.3(5) only applies where the court has made an order of its own initiative. Where a court is considering an application without notice requesting that it be dealt with on paper and decides that the application is suitable for consideration without a hearing, two things seem to us to be obvious. First the court is acting on an application and not of its own initiative, and secondly the only decision which could conceivably be said to be of its own initiative is the decision not to have a hearing. But it is not that decision which the applicant is seeking to set aside or vary.
- We turn to the indirect route to CPR 3.3(5). We note at the outset that it is for the court to decide whether to deal with an application without a hearing: "the court may deal with an application…" (CPR 23.8). In considering the scope and meaning of CPR 23.8, we bear in mind two factors. First, generally speaking, there are huge benefits in disposing of routine applications without a hearing. The need to conduct litigation efficiently and proportionately requires that, so far as practicable, applications should be disposed of without a hearing. Routine case management decisions are obvious candidates for such treatment. Secondly, if it were decided by this court that an applicant cannot, as a party affected by an order, invoke CPR 3.3(5), but is obliged to appeal if he wishes to challenge an order made without an hearing, that would deter applicants from asking for their applications to be disposed of without a hearing. We say this because it is necessary to obtain permission to appeal, and it might be difficult to persuade the court to grant permission in many cases, since most decisions made without a hearing would be likely to involve an exercise of discretion, which would be inherently difficult to challenge on appeal.
- What then is the position where an applicant requests the court to dispose of a without notice application on paper? If the court accedes to such a request, does it do so under CPR 23.8(b) (as Mr. de Navarro QC and Mr. Walker QC submit) or under CPR 23.8(c) (as Mr. Sharp QC submits)? The answer to this question will determine whether the court has jurisdiction to entertain an application by the original applicant to have the order set aside, varied or stayed under CPR 3.3(5). There is no doubt that the respondent to the original application can apply to set aside the order: see CPR 23.10.
- So far as the original applicant is concerned, we can leave out of account those cases where the court grants the relief sought in full. In such a case, the applicant will not normally wish to make a subsequent application to set aside, vary or stay the order. But the court may refuse the application altogether, or grant the applicant only part of the relief that he seeks or some other relief, for example, an extension of time for a shorter period than that which he seeks. When the court makes an order in such a case without a hearing, is it acting on the footing that the applicant has "agreed that the court should dispose of the application without a hearing" under CPR 23.8(b), or is it acting on the footing that it does not consider that a hearing would be appropriate under CPR 23.8(c)?
- We accept that the CPR are in a statutory instrument, originating from SI 1998 No 3132, so that the provisions of section 6 of the Interpretation Act 1978 apply (see sections 5 and 11). Accordingly, "unless the contrary intention appears….words in the plural include the singular". During the course of argument, we were impressed with the submission that CPR 23.8(b) applies where a court makes an order without a hearing, and that the words "the parties agree that the court should dispose of the application without a hearing" should be interpreted as including the situation where the court agrees to dispose of a without notice application on paper. But on reflection, to construe these words as applying in that situation is to give them a strained interpretation. The word "agree" in CPR 23.8(b) refers naturally to an agreement between the parties to the application, rather than to an agreement between one party and the court. Indeed, the concept of a party making an "agreement" with the court is strange. It seems to us that CPR 23.8(b) is not saying anything about the willingness or otherwise of the court to dispose of an application without a hearing. That is the subject of CPR 23.8(c).
- CPR 23.8(c) on its face appears to cover any situation where, regardless of what one or more of the parties may say, the court does not consider that a hearing would be appropriate. In other words, this gives the court the jurisdiction to dispose of any application without a hearing.
- Why should CPR 23.8(b) and (c) not be construed in this way? A possible concern is that, if CPR 23.8 is so construed, there is no express provision in the rules or the practice direction to prevent an unsuccessful applicant from asking the court to reconsider the order it made on paper, rather than appeal. In our view, there is nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed, whether the applicant requested a hearing in the first place or not. This accords with standard practice referred to at para 24 above and reflects the fact that efficient and proportionate case management often requires that orders be made on paper, but recognizes that a party may be able to put his case more persuasively at a hearing. We can find nothing in this practice which casts doubt on what we consider to be the natural construction of CPR 23.8.
- But it may be said that, if this construction of CPR 23.8 is correct, there is nothing to prevent a party from returning time and again to make such an application without notice following repeated rejections of his application, whether at a hearing or on paper. If that were the inevitable consequence of the natural construction of CPR 23.8, it would cast doubt on whether it is correct.
- We would point out, however, that there is no express provision which prevents an unsuccessful applicant from asking the court to reconsider the matter (rather than appeal) in the event that the court makes an order without a hearing even where the applicant has requested a hearing, ie in a case to which CPR 23.8(c) unquestionably applies. It follows that the mere fact that the rules and practice direction do not expressly prohibit successive applications for the same relief after orders have been made without a hearing is not a good reason for giving the words of CPR 23.8(b) and (c) a meaning that they do not naturally bear.
- But it is not necessary to deny the court jurisdiction to entertain an application under CPR 3.3(5) where an order has been made without a hearing under CPR 23.8(c) in such cases in order to prevent repeat applications by unsuccessful applications. The solution lies in the proper exercise of the discretion conferred by that rule. We suggest that it is good practice to require any application under CPR 3.3(5) to be made at a hearing rather than on paper. If, a judge dismisses an application under CPR 3.3(5), whether on paper or at a hearing, any further application under CPR 3.3(5) should usually be struck out as an abuse of process, unless it is based on substantially different material from the earlier application (in which case different considerations will arise). We do not consider that the possibility that such further applications might be made is a good reason for adopting a strained interpretation of CPR 23.8.
- Before turning to the third argument, we would like to emphasise one further point. On receipt of a without notice application with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing. In our view, there is a danger in dealing with important applications on paper. An application for an extension of time for service of the claim form is potentially of critical importance, especially where the application is made shortly before the end of the 4 months period for service and where the cause of action has become time-barred since the date on which the claim form was issued. If the application is allowed and an extension of time is given, the defendant can always apply under CPR 23.10 for the order to be set aside, in which case the applicant may be worse off than if it had been refused in the first place. It is highly desirable that on the without notice application, full consideration (with proper testing of the argument) is given to the issue of whether the relief sought should be granted. Equally, if an application is made late in the day and refused on paper when proper argument would have made it proper to grant, a great deal of heart-ache can be saved. We think that applications of this kind, where time limits are running out, should normally be dealt with by an urgent hearing. We accept, however, that owing to time constraints, pressure of business and the like, it will sometimes not be possible to deal with such an application other than on paper. Even in such cases, however, consideration should be given to dealing with the application by telephone.
- We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen  EWHC 1740 (Ch). He said at paragraph 7:-
"The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."
- We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).
Collier v Williams
- This was a personal injury action. The claimant suffered personal injuries in an incident on 9 April 2001. The details do not matter for present purposes. The claim form was not issued until 1 April 2004. The insurers acting for the defendant were Royal & Sun Alliance. On 29 April 2004 they wrote to the solicitors acting for the claimant saying:-
"Given limitation has expired we presume you have issued and served proceedings? If so when and on whom?"
- On 5 May 2004, the solicitors replied stating that they would serve the claim form together with particulars of claim as soon as they were in a position to do so. They said: "perhaps you would be kind enough to nominate solicitors to accept service." The insurers, by letter dated 12 May 2004, said:-
"We would nominate Lyons Davidson of Victoria House, 51 Victoria Street, Bristol BS1 6Ad for the attention of Ms J Darlington. Please advise when you anticipate proceedings will be served in order that our file of papers may be sent to them without delay."
- On 8 July 2004, the solicitors for the claimant wrote to the insurers saying:-
"We anticipate serving the claim form within the next two weeks. This will be sent directly to Lyons Davidson as per your letter of the 12 May."
- The claim form was sent to Lyons Davidson by letter dated 23 July 2004 and copies of that documentation were sent directly to the insurers, under cover of a letter of the same date.
- By letter dated 6 August 2004, Lyons Davidson wrote to the solicitors for the claimant saying:-
"We note that you have purported to serve the proceedings on ourselves. However, we are of the view that service has not been effected and the proceedings have not been served. We have never confirmed that we are instructed to accept proceedings and therefore the proceedings should have been served on the defendant, Miss Williams, directly. We will file our defence (copy attached in draft) but will be making an application to strike your client's claim out directly."
- It is right to say that, if the claim form had not already been served, it would have expired on 1 August 2004 and the claim would have been time-barred.
- By an application dated 6 August 2004, Lyons Davidson applied to strike out the claimant's claim in reliance on CPR 6.4(2)(a) and (b). As was made clear by the skeleton arguments supporting that application, it was the defendant's case that the rules required the claimant to obtain written confirmation from the defendant's nominated solicitor prior to trying to serve upon him or her, whether or not the defendant had stated that service should be upon the solicitor. Reliance was placed on the judgment of Judge Hickinbottom in Knight v Albert-Culver.
- The matter came before District Judge Matthews and by an order dated 11 January 2005 the dismissed the application. The district judge granted permission to appeal and the appeal was transferred to the Court of Appeal by order of His Honour Judge Ian Hughes QC by order dated 11 April 2005. That transfer was confirmed by Neuberger LJ by order dated 17 May 2005.
- For the reasons that we have given when discussing CPR 6.4(2) and 6.5 in paragraphs 9-15 above in our view the district judge was plainly right and we accordingly dismiss the appeal.
Marshall and Rankine v Maggs
- The claimants are stockbrokers. From July 1997, they were in partnership with each other, and were registered representatives of, Branston & Gothard Limited ("B&G"), then a member of the London Stock Exchange. The defendant was a client of the claimants and maintained share trading accounts with B&G. The claimants contend that pursuant to a number of share trading transactions, the defendant incurred a debt to B&G of approximately £44,500 (plus interest). In August 1998, B&G went into liquidation. By deed of assignment dated 11 April 2003, the liquidators assigned B&G's right of action against the defendant to the claimants. On 30 June 2003, the claimants' solicitors, Messrs Russell Cooke, sent a standard letter before action to the defendant. They sent it to 47 Hays Mews, London W1J 5QE. This evoked a response dated 9 July from Messrs Jeffrey Green Russell, solicitors, saying: "We act for Mr Douglas Maggs and have for attention your letter of 30 June with enclosure. We are taking instructions and will revert to you." On 24 July, Jeffrey Green Russell wrote again saying that the claim was "entirely spurious".
- On 28 January 2004, the claimants issued a claim form. On 27 April, Russell Cooke wrote to Jeffrey Green Russell confirming that a claim form had been issued on 28 January, and saying that before serving it, they wished to explore once again the possibility of settling the matter. They concluded: "Given the time available for us to serve the Claim Form with Particulars we would ask for a response within the next 7 days." Jeffrey Green Russell replied on the next day saying that it would not be possible to respond within 7 days and asking to be allowed 14 days in which to respond before the claim form was served. Russell Cooke acceded to this request. But by 20 May, there had been no response from the defendant or Jeffrey Green Russell. On 20 May, Russell Cooke wrote to Jeffrey Green Russell asking them to confirm by return whether they were instructed to accept service, failing which they would arrange "for the proceedings to be issued (sic) on your client at the address to which we have previously corresponded." Jeffrey Green Russell provided no such confirmation. Accordingly, on 24 May Russell Cooke sent to the defendant by first class post at 47 Hays Mews the claim form, particulars of claim and response pack. As a matter of courtesy, on the same date they sent copies of the claim form and particulars of claim to Jeffrey Green Russell. On 26 May, Jeffrey Green Russell wrote: "Our client has not resided at 47 Hays Mews for some months now. We don't know what the arrangements are for forwarding the post."
- On 27 May, Russell Cooke sought Jeffrey Green Russell's confirmation that the defendant had been properly served, failing which the claimants would make an application to the court. No such confirmation was forthcoming. On the same day, an application was made without notice for an order that the claim form had been effectively served, alternatively that the time for service be extended by 21 days. A hearing was requested and granted. Later that day, Master Eyre ordered that receipt by Jeffrey Green Russell of the claim form and particulars of claim was "to be deemed good service". It is common ground that, since there is no jurisdiction to order alternative service retrospectively, the master's order was wrong.
- On 28 May, Russell Cooke served the order on Jeffrey Green Russell. In June, the defendant instructed new solicitors, Messrs Forsters. On 17 June, the defendant issued an application for an order setting aside the order of 27 May, and for a declaration that service of the proceedings had not been validly effected and that the proceedings be struck out. On 29 June, the claimants made another application in substantially the same terms as the application of 27 May, but also seeking in the alternative an extension of time under CPR 7.6(3), and asking that if an extension of time were granted under either CPR 7.6(2) or (3), then service be dispensed with under CPR 6.9.
- These applications were heard by Master Eyre. By order dated 12 October 2004, he allowed the claimants' applications and dismissed that of the defendant. He held that service had been effected under CPR 6.5(6) by posting the claim form to 47 Hays Mews. In summary, his reasons were as follows. There was no solicitor "acting" for the defendant at the relevant time. 47 Hays Mews was the defendant's "last known address" within the meaning of the table in CPR 6.5(6). The master said at para 29 of the reasons for his decision:
"(1) Any ambiguity as to the Defendant's usual or last-known place of residence is entirely of his own making. His own solicitor believed him to have resided at 47 Hays Mews (20 above), and nothing has been said by him to explain away that belief, presumably acquired as a result of his instructions.
(2) For the Defendant to object that the Claimants have failed to show sufficient energy in finding out how to serve him, he must also rely on his own solicitor's persistent failure to answer requests for information. That reliance must be contrary to any ordinary principle of fair play, as well as being the plainest possible breach of Rule 1.3.
(3) Moreover, in view of the numerous unexplained inconsistencies to which reference has already been made in the case advanced by the Defendant, the evidence of the Claimants that 47 Hays Mews was, and was known to them as, his last-known residence is unhesitatingly to be preferred. (The evidence of Miss. Nicklin and Mr. Lukas is quite incomplete, and in any event does not bear on what was known to the Claimants, and why)."
- It followed that if no solicitor was "acting for the defendant", service of the claim form by posting it to 47 Hays Mews was good service. In any event, the master decided that the claimants were entitled to an order extending the time for service until the final date of the hearing before the master under CPR 7.6(3) and an order dispensing with service under CPR 6.9. He did not deal separately with the application under CPR 7.6(2).
- Permission to appeal to the judge was given to the defendant by Burton J. Gray J allowed the appeal. He held that the order of 27 May could not be a valid order for service by an alternative method under CPR 6.8, since the order purported to operate retrospectively. There is no challenge by the claimants to that part of Gray J's order. The judge also held that the defendant had never lived at 47 Hays Mews and that the master's contrary finding was wrong. There is no challenge to this part of the judge's decision either.
- But the judge reached the following conclusions which are the subject of challenge in this court:
(a) Jeffrey Green Russell was "acting" for the defendant within the meaning of CPR 6.5(6) at the time of purported service of the claim form on the defendant, although they did not have instructions to accept service of the claim form. Accordingly, CPR 6.5(6) was not available as a means of service of the claim form;
(b) 47 Hays Mews was not the defendant's "usual or last known residence" within the meaning of CPR 6.5(6):these words require that the defendant should have lived at that address at some time;
(c) The court cannot exercise the power to extend time for service under CPR 7.6 and then dispense with service under CPR 6.9, since the "remedies" envisaged by these rules are intended to be alternatives;
(d) The claimants' application of 27 May was abandoned or superseded by the time of the inter partes hearing; and
(e) In any case, when considering whether or not to grant an extension of time under CPR 7.6(2), the court must ask itself whether the requirements of CPR 7.6(3)(b) and (c) have been satisfied: there is little difference between CPR 7.6(2) and CPR 7.6(3).
Ground 1: CPR 6.5(6)
- The issue that arises here is whether a claimant can serve a claim form by sending or transmitting it to, or leaving it at, a place for service shown in the table set out in rule 6.5(6) if the defendant has a solicitor acting for him in some capacity, but without instructions to accept service. We have already set out paras 56 -59 of Gray J's judgment (see para 16 above).
- It will be apparent from our discussion at paras 16-19 above that in our judgment the judge reached the wrong conclusion on this point. Because the claimants had not been told by Jeffrey Green Russell that they were acting on behalf of the defendant and were authorised to accept service, there was no solicitor "acting" for the defendant within the meaning of CPR 6.5(6): there was no solicitor acting so that he or she could be served. Accordingly, the claimant was justified in serving the claim form in accordance with the table set out in CPR 6.5(6). The claimant succeeds on the first ground of appeal.
Ground 2: CPR 6.5(6) and "usual or last known residence".
- There was a good deal of direct evidence which showed convincingly that the defendant had never lived at 47 Hays Mews. It was on the strength of that evidence that the judge reversed Master Eyre's finding that the defendant had lived at that address. At para 55 of his judgment, he said:
"In all these circumstances it appears to me that although I am dealing with the case on appeal, I can and should decide the issue of the validity of service on 47 Hays Mews afresh for myself. For the reasons which I have given I find that 47 Hays Mews was neither the current address of the defendant at the date of service nor was it his last known address. I accept that he has never resided at 47 Hays Mews."
- It appears from para 46 of the judgment that Mr Yeo submitted that "provided such reasonable steps have been taken [viz to ascertain what is the last known address of a defendant], an address may qualify as a defendant's last known address if it is honestly believed to be such, even if that is not in fact the case." The judge did not deal with this submission explicitly. As we read his judgment, however, he seems to have regarded the fact that the defendant had never lived at 47 Hays Mews as decisive of the issue.
- As we have already said, the appellants do not challenge the judge's finding that the defendant had never lived at that address.
- The meaning of the phrase "last known residence" has caused some difficulty. In Smith v Hughes  EWCA Civ 656,  1 WLR 2441 this court held that service at a defendant's last known residence was good service even if the claimant knew that the defendant was no longer living there. At para 103, the court said:
"As we have said, there is no suggestion in this case that Whitworth Close was not Mr Hughes's last known residence. If the MIB had disputed the claimant's claim that this was Mr Hughes's last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant's actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal."
- The question of what the claimant has to show in order to establish that the address was the "last known residence" arises for decision in the present case. In Mersey Docks Property Holdings v Michael Kilgour  EWHC 1638 (TCC), His Honour Judge Toulmin QC said:
"62. I have therefore the two alternatives: either to construe "last known place of business" as the last place known to the claimant (the claimant's contention), or alternatively the last known ascertainable place of business or, put another way, the last place of business known generally, which is the defendant's primary contention. The defendant's contention is that these words envisage the situation where the person to be served no longer has a usual place of business and the proceedings must therefore be served on the last known place of business.
63. It seems to me that the proper construction is last known place of business in the sense of last place of business known to the claimant. This is, in itself, a relatively onerous provision, since in order to acquire the requisite knowledge a party must take reasonable steps to find out at the date of service what is the current place of business or the last place from which the party carried on its business. It will be a matter of evidence whether or not a party has discharged the obligation to have the requisite knowledge at the time of service. On balance, this seems to me to be a fairer and more workable test than one which refers to an objective standard of general knowledge or ascertainability.
64. I am confirmed in this view both by the fact that a similar test was operated under the previous rules involving similar wording with little difficulty, and by the fact that although they did not address the issue directly, this appears to have been implicit in the approach taken by Dyson LJ in Cranfield v Bridge and Mummery LJ in Arundel v Khakher."
- We have been referred to an article by Mr Zuckerman, "Service of the claim form" (2005) Civil Justice Quarterly 401. Mr Zuckerman wrote at p 404:
"While it is right to reject whimsical knowledge, care needs to be taken to avoid imposing conditions that may make the process of service more difficult and which would give rise to satellite litigation about compliance. The rule, as Dyson L.J. observed above, "is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied". It follows from this that the test must not make it too cumbersome for claimants to serve a defendant who has failed to provide an address for service. It should be borne in mind that a test that makes it easy for claimants to comply with the time limit for service of the claim form and thereby avoid being statute barred does not disadvantage defendants. A defendant who has not received the claim form would find no difficulty in setting aside any default judgment entered. Lastly, one should also bear in mind that one of the aims of the CPR was to cut down the potential for litigation over compliance with service requirements that existed in the past. Put together, these considerations argue for a liberal interpretation of the "last known residence". Accordingly, they suggest a test that merely requires claimants to show that they believed the address in question to be the defendant's last known residence and that such belief was not patently unreasonable, in the sense that the claimant did not turn a blind eye to facts that suggested otherwise. Unfortunately, there is no clear and authoritative pronouncement on this point with the result that much effort and expense have been invested in unnecessary disputes."
- Mr Yeo submits that the correct interpretation of "last known residence" is that advocated by Mr Zuckerman, or alternatively that tentatively suggested by this court in Smith v Hughes, which is not materially different from that propounded by Judge Toulmin QC in the Mersey Docks Property Holdings case. On this basis, he submits, the judge should have found that service was effected on the defendant's last known residence because (a) the first claimant honestly believed that 47 Hays Mews was the defendant's last known residence and that belief was not patently unreasonable, or alternatively (b) that address was the defendant's last known residence on the basis of the knowledge that the first claimant had, or that, exercising reasonable diligence, he could have had.
- Mr Yeo contends that, in construing the meaning of the phrase "last known residence", the court should not indulge in fine philosophical notions of "knowledge", and should adopt a practical common sense approach which does not impose unfair burdens on a claimant.
- No authority has been cited to us in which the court has had to decide whether an address can be a person's last known residence if it was never his residence at all. As Mr Butler points out, the rule could have been expressed in terms of "the address reasonably believed to be the usual or last residence of the individual". The use of the concept of knowledge was deliberate. There is no other area of the law where the concept of knowledge is equated with that of belief. No authority has been cited to us in support of the proposition that a piece of information which is false can nevertheless be known. As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.
- We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.
- It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.
- What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of "last known residence", we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. What state of mind in the server is connoted by the words "last known"? In our judgment, Mr Zuckerman's interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.
- For the reasons that we have given, however, the claimant failed to effect good service by sending the claim form to 47 Hays Mews on 24 May 2004. In the result, it was necessary for him to persuade the court to grant him an extension of time for service under CPR 7.6. It is to the issues relating to that rule that we now turn.
Ground 3: extension of time and dispensing with service
- The master extended the time for service of the claim form until 30 September 2004 and made an order under CPR 6.9 dispensing with service. At para 61 of his judgment, Gray J said that it was inappropriate to make both orders: "They are intended as alternative and not conjunctive remedies. If a requirement has been dispensed with there is no point in extending time for carrying it out, and vice versa".
- Mr Yeo submits that this is an unjustified fetter on the court's power to dispense with service. If, as in the present case, the defendant has already acknowledged service (albeit conditionally and subject to their jurisdictional challenge), it serves no useful purpose to require the claimants to re-serve the proceedings.
- The judge was plainly right to say that, if a court dispenses with service under CPR 6.9, there is no point in granting an extension of time for service under CPR 7.6. But the converse is not necessarily correct. It does not follow from the fact that a court grants an extension of time for service that it should then necessarily not dispense with service. Whether the court decides to exercise its discretion under CPR 6.9 will depend on the circumstances of the case. If the defendant has already received the claim form (although it has not been properly served in accordance with the rules), the court may well dispense with service on the grounds that, once a decision has been made to extend the time for service, there is no point in requiring the claimant to serve the document.
- On the facts of the present case, the master granted an extension of time until 30 September 2004 and then dispensed with service. The defendant was already in receipt of the relevant documents. There was, therefore, no point in both requiring re-service and dispensing with service. Accordingly, the judge reached the right conclusion, and there is nothing in the third ground of appeal.
Grounds 4-9: extension of time for service of the claim form
- By way of introduction, it may be helpful to summarise the issues raised by the various grounds of appeal. These are:
i) Ground 4: whether the judge was right to hold that it made "very little difference" whether the entitlement to an extension of time was considered under CPR 7.6(2) or (3);
ii) Ground 5: whether the judge was right to hold that the application of 17 June 2004 for an extension of time under CPR 7.6(2) was "abandoned and superseded" by the later application of 29 June;
iii) Grounds 6-9: whether the judge adopted the correct approach to his consideration of the master's decision in relation to the question whether the pre-conditions stated in CPR 7.6(3)(b) and (c) were satisfied;
- It is logical to start with ground 5. The judge held that the application of 27 May 2004 (which was made within the period of 4 months for service of the claim form), was abandoned and superseded by the later application of 29 June (which was made after the end of the 4 months period). His reason was that:
"65. If the earlier application was still subsisting in June 2004, it is difficult to understand why a fresh application for an extension was thought to be necessary, and particularly difficult to understand why it should have referred to CPR 7.6 (3)."
- The judge did not dwell on the point, however, because it appeared to him to make little difference whether the application for an extension of time was made under CPR 7.6(2) or 7.6(3).
- The first application was undoubtedly made under CPR 7.6(2). There was some debate as to when an application to extend the time for service is "made" within the meaning of CPR 7.6(2). Mr Butler submits that it is when the application is heard by the court and not when the notice of application is issued. We are in no doubt that the application is "made" when the notice is issued and not when it is heard. It would be surprising if it were the latter date, since that is something over which the applicant has no control once the application is issued. But the issue is resolved by CPR 23.5 (to which Mr Butler responsibly drew our attention) which provides: "Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time". In fact, the application was issued and heard by the court on 27 May in any event.
- Mr Butler submits that the earlier application under CPR 7.6(2) was abandoned because it was superseded by the later application for relief under CPR 7.6(2) and/or (3) and the later application was not made without prejudice to the existence of the earlier application. In short, the later application was meaningless if the earlier application for the same relief was still on foot.
- In our view, it is not correct to analyse this in terms of abandonment. The application of 29 June was a fresh application. It did not purport to be an application to vary the earlier order. Even if the claimants had purported to apply to vary the order of 27 May under CPR 3.1(7), there were no circumstances which could have justified the exercise of that power see paras 39 and 40 above. It was simply a free-standing application for an order that (i) service was properly effected in accordance with CPR 6.5; (ii) "in the event that the claimants are now out of time for an extension of time under CPR 7.6(2) (as applied for by the Claimants in their Application Notice dated 27 May 2004) the Claimants be given an extension of time to re-serve these proceedings under CPR 7.6(3); and (iii) service of these proceedings be dispensed with under CPR 6.9": see para 3 of the witness statement of the first claimant. The court had no jurisdiction to entertain an application under CPR 7.6(2) after the expiry of the 4 months period.
- But the master also had before him the defendant's application to set aside his earlier order. The hearing of that application was not a review of the earlier decision, but, in effect, the hearing afresh of the claimants' application of 27 May. Once the defendant had issued his application to set aside, the claimants did not need to issue a fresh application under CPR 7.6(2). But the fact that they did cannot change the nature of the hearing that was to take place before the master. Of course, they did need to issue a fresh application under CPR 7.6(3).
- In short, faced with the defendant's application to set aside the earlier order, the master had to decide whether the claimants were entitled to the order that they sought on 27 May. This included resolving the question whether they were entitled to an extension of time under CPR 7.6(2). The master did not do this. He merely decided (but without giving any reasons) that the claimant's were entitled to an extension of time under CPR 7.6(3).
- Mr Yeo submits that by refusing to recognise that there is a substantial difference between rule 7.6(2) and (3), the judge misdirected himself and misunderstood the decision of this court in Hashtroodi's case. The judge cited extensively from the judgment. The following passages are relevant:
"17 Moreover, there are reasons internal to CPR r 7.6 itself which show that it was not intended to impose any threshold condition on the right to apply for an extension of time under CPR r 7.6(2). The contrast between rule 7.6(2) and rule 7.6(3) is striking. Rule 7.6(3) empowers the court to grant an extension of time to a claimant who applies after the end of the specified period only if the conditions stated in paragraphs (a) or (b) and (c) are satisfied. The reference to conditions in rule 7.6(3), and the absence of any such reference in rule 7.6(2) must have been deliberate. Against the background of the case law on Ord 6, r 8, and in view of the introduction of new and stringent conditions in rule 7.6(3), it cannot have been intended that rule 7.6(2) should be construed as being subject to a condition that a "good reason" must be shown for failure to serve within the specified period, or indeed subject to any implied condition.
18 In the absence of any such condition, therefore, the power must be exercised in accordance with the overriding objective: see CPR r 1.2(b). What does that mean in practice? We have no doubt that it will always be relevant for the court to determine and evaluate the reason why the claimant did not serve the claim form within the specified period. This has nothing to do with the fact that under the former procedural code, the threshold requirement was that the plaintiff should show good reason. It is because the overriding objective is that of enabling the court to deal with cases "justly", and it is not possible to deal with an application for an extension of time under CPR r 7.6(2) justly without knowing why the claimant has failed to serve the claim form within the specified period. As a matter of common sense, the court will always want to know why the claim form was not served within the specified period. As Mr Zuckerman says in Civil Procedure, p 180, para 4.121: "For it is only fair to ask whether the applicant is seeking the court's help to overcome a genuine problem that he has encountered in carrying out service or whether he is seeking relief from the consequences of his own neglect. A claimant who has experienced difficulty should normally be entitled to the court's help, but an applicant who has merely left service too late is not entitled to as much consideration. Whether the limitation period has expired is also of considerable importance. If an extension is sought beyond four months after the expiry of the limitation period, the claimant is effectively asking the court to disturb a defendant who is by now entitled to assume that his rights can no longer be disputed."
19 Whereas, under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so (the CPR r 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve. The weaker the reason, the more likely the court will be to refuse to grant the extension.
20 If the reason why the claimant has not served the claim form within the specified period is that he (or his legal representative) simply overlooked the matter, that will be a strong reason for the court refusing to grant an extension of time for service. One of the important aims of the Woolf reforms was to introduce more discipline into the conduct of civil litigation. One of the ways of achieving this is to insist that time limits be adhered to unless there is good reason for a departure. In the Biguzzi case  1 WLR 1926 Lord Woolf MR said, at p 1933: "If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant."
21 It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim: see CPR r 16.2(1)(a). These are generous time-limits."
- At para 66, Gray J said that it appeared to him to make "little difference" whether the application for an extension of time was made under CPR 7.6(2) or (3). It was no doubt for this reason that at para 67 he said that the questions to be asked were whether the claimants could satisfy the requirements of CPR 7.6(3)(b) and (c): he gave no separate consideration to CPR 7.6(2).
- In our judgment, he was wrong to treat the CPR 7.6(2) issue as if it would be determined by his decision on the application under CPR 7.6(3). There is a clear difference between the two sub-rules. CPR 7.6(3) is subject to pre-conditions: relief cannot be granted if the conditions are not satisfied. Under CPR 7.6(2), there are no pre-conditions, so that relief can be granted under that rule even if the court is not satisfied that the claimant has taken all reasonable steps to serve and has acted promptly. The decision in Hashtroodi's case highlights the importance of the reason why the claim form was not (if it was not) served within the 4 months period. We would agree that the CPR 7.6(3) requirements are relevant to the exercise of the discretion given by CPR 7.6(2). But the fact that the pre-conditions stated in CPR 7.6(3)(b) and (c) are not satisfied is not necessarily determinative of the outcome of an application under CPR 7.6(2). That is clear from the passages set out at para 87 above. When deciding whether to grant an extension of time under CPR 7.6(2), the court is required to consider how good a reason there was for the failure to serve in time (assuming that the application is dealt with after the end of the 4 months period): the stronger the reason, the more likely the court will be to extend time; and the weaker the reason, the less likely. This involves making a judgment about the reason why service has not been effected within the 4 months period. It is a more subtle exercise that that required under CPR 7.6(3) which provides that unless all reasonable steps have been taken, the court cannot extend time.
- In these circumstances, we are of the view that the judge adopted the wrong approach. He should have applied CPR 7.6(2) and considered the matter in accordance with the guidance given in Hashtroodi's case. Mr Yeo advances a number of elaborate arguments in support of the submission that, even if the judge was right to treat the matter as governed by CPR 7.6(3), he reached the wrong conclusion in relation to CPR 7.6(3) and therefore even more obviously reached the wrong conclusion on the basis of CPR 7.6(2). We shall consider these arguments in outline, because in our view, since the judge failed to deal with the matter under CPR 7.6(2), it falls to this court to exercise afresh the discretion given by that rule. This we do at paras 95-105 below.
Grounds 6-9: challenge to the approach of the judge to CPR 7.6(3)
- The judge dealt with the CPR 7.6(3) issue at paras 67-80. He concluded that the claimants had not shown that they had taken all reasonable steps to serve the claim form but had been unable to do so (CPR 7.6(3)(b)) or that they had acted promptly in making their application (CPR 7.6(3)(c)). As regards CPR 7.6(3)(b), he said (para 77) that there were steps which it was open to the claimants, through their solicitor, to take to effect service which they failed to take. These included: asking the defendant for his address and in the event of not obtaining an answer seeking an order (CPR 6.5(2)); attempting to serve the defendant personally (enquiries at 47 Hays Mews would almost certainly have revealed his actual address); or serving the defendant at his Checkendon address (see further para 96 and 97 below).
- As regards CPR 7.6(3)(c), the judge said (para 79) that he was not persuaded that the claimants acted promptly. There could be no criticism of the timing of the application of 27 May, but that application did not result in an extension of time. The second application was not made until 29 June, a full month after the expiry of the 4 months period. The only explanation advanced by Mr Yeo for the delay in making this further application is that until 17 June, when the defendant applied to set aside the order of 27 May, there was no need for the claimants to do anything, since they had the benefit of that order.
- Mr Yeo first submits that the judge adopted the wrong approach to his examination of the decision of the master. As we have said, the master had granted an extension of time for service under CPR 7.6(3) until the date of the order (30 September 2004). Mr Yeo submits that, as an appellate court, the judge should not have determined afresh (by way of rehearing) the question whether the CPR 7.6(3) pre-conditions were satisfied. He contends as follows. Questions of whether the pre-conditions are satisfied are not questions of primary fact. Rather, they require evaluative conclusions to be reached by the tribunal in the light of the primary facts. The judge appears to have acknowledged this when he said: "these appear to me to be questions of fact, albeit secondary fact" (para 75). Mr Yeo submits that evaluations of this kind are analogous to the exercise of a discretion and should be viewed as such by an appellate court. In support of this, he relies on the observations of Clarke LJ in Assicurazioni Generali Arab Insurance  1 WLR 577 para 16.
"Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."
- We accept that what Clarke LJ said is of application to findings that the pre-conditions in CPR 7.6(3) are or are not satisfied. But where a judge holds that the master's findings of primary fact are unsustainable, the factual basis of the master's evaluation is undermined. In those circumstances, the judge is not inhibited by the master's evaluation of the facts: he must carry out his own evaluation. The same applies where the factual basis on which a decision-maker's exercise of discretion is made: the reviewing person must exercise the discretion afresh. In the present case, the judge differed from the master in relation to three important findings of fact namely whether (a) the defendant had ever lived at 47 Hays Mews, (b) the defendant's solicitors had persistently failed to answer requests for information, and (c) the defendant's evidence contained "numerous unexplained inconsistencies". In our view, Mr Butler is right when he says that these departures were so fundamental that they completely altered the landscape against which the evaluation exercise had to be conducted.
- In fact, the judge gave a different reason for not treating himself as bound by the master's evaluation and being free to consider the matter afresh, namely that the master had not given any reasons for his decision. Nowhere in his reasons did the master mention the pre-conditions to the operation of CPR 7.6(3), still less did he give any reasons for his decision to extend time. Mr Yeo responds that the master heard detailed submissions in relation to the pre-conditions and must have been persuaded that they were satisfied. In these circumstances, he submits, the defendant clearly knows why the master decided to extend time under CPR 7.6(3). In our judgment, that is not enough. It was incumbent on the master to give at least brief reasons for his conclusion on this central issue. We conclude, therefore, that the judge was entitled to consider whether to grant an extension of time under CPR 7.6(3) afresh.
- In our judgment, the judge's assessment of whether the conditions stated in CPR 7.6(3)(b) and (c) were satisfied can only be challenged successfully if it was plainly wrong or if he reached a decision which was outside the band of decisions reasonably open to a decision-maker: see Assicurazioni. We have summarised his conclusions at paras 89 and 90 above. In our judgment, Mr Yeo comes nowhere near demonstrating that the judge made an error of this kind.
Our decision under CPR 7.6(2)
- The starting point is to "determine and evaluate the reason why the claimant did not serve the claim form within the specified period": Hashtroodi's case para 18. We have already set out some of the essential facts. As we have said, there is no challenge by the claimants to the judge's finding that the defendant never resided at 47 Hays Mews. It is also accepted by Mr Butler that at all material times the claimant believed that the defendant did reside at that address. Mr Butler submits, however, that this belief was unreasonable. Before expressing our conclusion on whether the reason for the failure to serve the claim form in time was sufficiently good to justify the exercise of the CPR 7.6(2) discretion in favour of the claimants we need to set out a few more facts.
- Until 1993, the defendant was living at Bellmans, Checkendon, Reading. The first claimant knew this. For several years from 1993, the defendant spent a great deal of time in Hong Kong. In 1999, a meeting took place between the first claimant and the defendant at 47 Hays Mews, which the first claimant says the defendant had described as "his new address" (the defendant does not dispute this). The purpose of the meeting was to discuss the account balances which were to become the subject-matter of the present proceedings. The first claimant says that he believed that the address was the defendant's residence. In his first witness statement, he says (which is not disputed) that the property is located in a residential mews, and that at the time of the meeting there was nothing to indicate that the property was in commercial use. The meeting took place in a dining room, which he says, was "furnished in a manner that you would expect in a residential property".
- In his first witness statement, the defendant says that 47 Hays Mews was an address that in 1999 was used by three businesses, and was also the residence of a Portuguese man called Mr Pinto. In the view of the defendant, the property "never really had the appearance overall of a residential address". In his third witness statement, the defendant says that he severed all links with Hong Kong in 1999, and thereafter worked exclusively from Hays Mews. He continued to live at Bellmans, and in April 2002 he purchased a property in Charles Street, London W1, which he used as a pied-a-terre.
- Mr Yeo submits that on those facts, it was reasonable for the first claimant to believe in May 2004 that 47 Hays Mews was the defendant's last known residence, even though for the reasons given in relation to ground 2 above this was a mistaken belief. He relies in particular on (a) the circumstances of the meeting in 1999, and the facts that (b) the property is in a residential mews, (c) the letter before action which was sent to 47 Hays Mews in July 2003 was sent on to Jeffrey Green Russell (d) the lack of response to the claimant's solicitors letter of 20 May which stated that, if Jeffrey Green Russell did not confirm that they had instructions to accept service, the proceedings would be served on 47 Hays Mews and (e) on 26 May, Jeffrey Green Russell wrote to Russell Cooke saying that the defendant had not resided at 47 Hays Mews "for some months now".
- We understand why the first claimant believed that 47 Hays Mews was the defendant's last known residence, but in our judgment this belief was not reasonable. The defendant had never told him that he lived at that address. The claimant's belief was largely based on the meeting in 1999. But the mere fact of the meeting and that it was held at a property which appeared to be residential was not in our judgment enough to justify the belief that it was the defendant's residence. The fact that the letter dated 9 July 2003 reached the defendant's solicitors does not show that the property was the defendant's residence. It was consistent with its not being a residence at all. Nor does Jeffrey Green Russell's failure to respond to the letter of 20 May advance matters. The defendant's solicitors were under no obligation to the claimants to reveal the defendant's address for service. Finally, there is the statement by Jeffrey Green Russell in their letter of 26 May that the defendant had not resided at 47 Hays Mews "for some months now". This is something of a mystery. It has not been explained. But in our judgment, the reasonableness of the claimant's belief depends on an assessment of the facts which were known to him. It is not suggested that the claimants or their solicitors relied on the letter of 26 May. Estoppel is not asserted: the claim form had been sent to 47 Hays Mews on 24 May.
- Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied. If the application is made within the time for service, the criteria are somewhat less strict. But the decision in Hashtroodi's case shows that the weaker the reason for not serving within the 4 months period, the less likely the court will be to extend time.
- If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence. If the claimant is misled by the defendant as to his residence, then the court is likely to hold that the claimant had reasonable grounds for his belief. In such circumstances, the court is likely to hold that there is a very good reason for the claimant's failure to serve within the 4 months period and to grant an extension of time under CPR 7.6(2). In such a case the defendant may even be estopped from denying that the address to which the document is sent is his last known residence.
- But it is incumbent on a claimant to take reasonable steps to ascertain a defendant's last known residence. What that involves must depend on the circumstances of the case. In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.
- But the present case shows how dangerous it can be to make assumptions. In our judgment, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence. He did not know that the defendant had ceased to reside at Bellmans. He merely knew that the defendant invited him to a business meeting at an address which was described to him by the defendant as his "new address". He is unable to point to anything about the address which appeared to indicate that the defendant was living there as his residence at the time.
- In our view, the evidence on which the first claimant based his erroneous conclusion that 47 Hays Mews was the defendant's last known residence was very slender. The difficulties which faced the claimants in the present case flowed from the fact that Russell Cooke did not start to try to effect service until 20 May, 8 days before the end of the 4 months period. If they had started the process earlier, they would have had time to take the necessary steps. These could have included making serious efforts to establish the defendant's last known residence. It is noteworthy that in her witness statement dated 27 May, Ms Talbot (of Russell Cooke) said that she was requesting an extension of time for service "so that I may arrange for the defendant's home address to be established and further copies sent to him at that address"(emphasis added). As the judge pointed out at para 77 of his judgment, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.
- Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.
Leeson v Marsden and United Bristol Health NHS Trust
- Between 27 November and 14 December 2000, Ms Leeson was treated by Dr Marsden, a general practitioner, and the United Bristol Health Care NHS Trust ("the Trust") for an epidural abscess. She alleges that the defendants negligently failed to diagnose a developing neurological condition until 13 December 2000. On the following day, she underwent emergency surgery for the epidural abscess. She made only a partial recovery, and has been left with a residual quadriparesis.
- On 27 August 2002, her solicitors, Messrs John Hodge & Co, sent letters of claim in accordance with the clinical negligence protocol to both defendants. The NHS Trust defendant delayed its response for approximately one year and the general practitioner defendant provided no response at all. On 24 November 2003, the claim form was issued. On 9 February 2004, the solicitors requested both defendants to agree to a 6 months extension of time for service of the proceedings. On 17 February, the Trust agreed to extend time by 3 months. On 24 February, Dr Marsden's solicitor sent a letter agreeing to an extension of time for the service of the particulars of claim, a medical report and schedule of loss and damage. No reference was made to an extension of time for service of the claim form: the solicitor did not consider that there were grounds for extending the time for service of the claim form.
- On 9 March 2004, Ms Leeson applied without notice for an extension of time for service of the claim form until 20 September. The application notice requested that the court deal with the matter without a hearing. The grounds relied on in support of the application were that:
"An extension of time is required to enable the second defendant to provide a protocol letter of response to the claimant's letter of claim. Thereafter, some time will be required in order to allow the claimant to finalise particulars of claim in light of both defendants' response to the clinical negligence protocol".
- A further extension of time of 3 months was agreed by the Trust by their letter to the claimant's solicitors dated 16 March. They added:
"If you wish to obtain the extension ex parte and wish us to sign a consent order, please let us have a draft shortly".
- On 22 March (2 days before the end of the 4 months period from the date of the issue of the claim form), the claimant's solicitor telephoned the court to enquire about the progress of her application. The court informed the solicitor that the application had been given the wrong case number. The application was sent again to the court with the words in manuscript "limitation (service) expires on Wednesday!"
- On the same day, the claimant's solicitor dictated letters to the solicitors of both defendants. They were not, however, placed in the DX or post until the following day. They would not, therefore, have been deemed to have been served until 25 March i.e. 1 day out of time: see CPR 6.7(1). Nor had the claimant's solicitor been notified that the defendants' solicitors were authorised to accept service of the claim form.
- On 23 March and without a hearing, District Judge Daniels made an order extending time for service of the particulars of claim by 4 months, but refusing to grant an extension of time for service of the claim form. The terms of this order were communicated by telephone to Ms Leeson's solicitor on 24 March. On 30 March, the Trust's solicitors wrote to Ms Leeson's solicitors saying that service of the claim form had not been effective because it was deemed to have been made on 25 March On 1 April, the claimant's solicitors wrote a letter to the court saying that the district judge's order of 23 March had put the claimant in "an impossible position with regard to serving her claim form within time". They enclosed a statement setting out the chronology events, and requested that the court "considers urgently the position in this matter" and amend the date for service of the claim form by granting an extension of time for service of 7 days.
- On 6 April and once again without a hearing, Deputy District Judge Paddison purported to grant a retrospective extension of time for service of the claim form until 31 March. Ms Leeson's solicitor received notice of this order on 7 April. On the same day, she wrote another letter to the court this time requesting an extension of time for service until 15 April. On 8 April yet again without a hearing, District Judge Singleton extended the time for service of the claim form until 15 April. The claim form and a copy of District Judge Singleton's order were sent by post to the Trust and to Dr Marsden's solicitor on 8 April.
- On 15 April, the Trust issued an application to set aside the order of 8 April and for a declaration that the claim form served on the Trust had been served out of time and for an order that the claim against the Trust be struck out. This application was heard by District Judge Singleton on 13 July and concluded at the adjourned hearing held on 26 November. The District Judge treated the matter as a re-hearing of the earlier without notice applications, and treated the application as being made under CPR 7.6(2). He ordered that the time for serving the claim form against Dr Marsden be extended to 25 March 2005, and against the Trust to 14 April 2005 and that the orders of 23 March, 6 April and 8 April 2004 be set aside.
- Both defendants appealed against this order. Two grounds of appeal were advanced: (i) there was no jurisdiction to rehear the earlier applications (the claimant's only remedy being to appeal against the order of 23 March) and (ii) if there was such jurisdiction the district judge wrongly exercised his discretion in setting aside the previous orders.
- District Judge Singleton did not give a formal judgment on the jurisdictional issue. Argument was addressed to him by the legal representatives of both parties in relation to CPR 3.3, 3.1(7) and 23. He started his formal judgment on the exercise of his discretion under CPR 7.6(2) by saying that he had decided that he had to rehear the original application (ie the application of 9 March) "for reasons which I have already given". It is difficult to see precisely what those reasons were. They seem to have included the fact that all the previous orders had been made without a hearing (see page 25 of the transcript of argument).
- The judge held that the court did not have jurisdiction to entertain an application by the claimant to vary District Judge Daniels's order of 23 March under CPR 3.3(5) by the "direct" route because the order was in response to the claimant's application. He was right so to hold: see para 28 above.
- Judge Darlow went on, however, to decide that the court did have jurisdiction to entertain an application to vary the order of 23 March under CPR 3.5(5) by the "indirect" route of CPR 23.8(c) and PD23 para 11.2. We agree that the court did have jurisdiction: see paras 29-37 above. But the applications of 1 and 7 April (which must have been made under CPR 3.3(5)) were merely repeats of the application of 9 March. Both applications should have been disposed of at a hearing and the application of 7 April should have been struck out as an abuse of process (see paras 37 and 38 above).
- The possibility of recourse to CPR 3.1(7) remains to be considered. As we have said earlier, this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion. We refer to paras 39 and 40 above and our approval of the observations of Patten J in Lloyd's Investment (Scandinavia) Limited's case. Mr Sharp submits that the mere fact that an application is refused without a hearing is a sufficient reason for requiring CPR 3.1(7) to be construed as enabling a court to vary or revoke an order even where no new material is deployed by the applicant. He says that any other interpretation is inconsistent with article 6 of the European Convention on Human Rights. We disagree. The existence of the right of appeal adequately protects an applicant's article 6 rights. Moreover, if an applicant reasonably considers that an oral hearing is necessary to explain the point properly, the court will usually accommodate a request for a hearing. At para 38 above, we warn of the dangers of making an application for the grant of an extension of time for the service of a claim form without a hearing.
- In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.
- In the present case, Mr Sharp relies on one matter that was not before District Judge Daniels. It seems that in connection with the inter partes hearing, District Judge Singleton spoke to District Judge Daniels about the case. According to the transcript, District Judge Singleton showed District Judge Daniels his note of the decision of 23 March. District Judge Singleton recorded the following statement by District Judge Daniels:
"It is quite likely that I was not aware that the C's application had been put in 2 weeks earlier and that there was only one day to go when I made my decision—if I had been aware of that I would have granted a short extension of 7 to 14 days".
- We think that this private conversation between the two judges was unfortunate to say the least, although we accept that it was mitigated to some extent by the fact that District Judge Singleton did inform the parties about it. We very much doubt whether, as a matter of principle, it can have been right for District Judge Singleton to have taken the contents of such a conversation into account when deciding the issue that was before him. But, even if it was, in our judgment, this conversation, several months after dealing with a paper application, was a wholly inadequate foundation on which to base a conclusion that there was sufficient new material to justify invoking the CPR 3.1(7) jurisdiction. It is most unlikely that District Judge Daniels would have recalled the application. Indeed, his comment, if accurately recorded, would suggest that he had no recollection of it. There is no reliable evidence that District Judge Daniels was not aware at the time that the application notice had been lying unattended in the court office for 2 weeks before it was brought to his attention.
- We conclude, therefore, that the judge should have allowed the appeal at least on the grounds that the claimant's application of 7 April to vary the order of 23 March under CPR 3.3(5) should have been struck out as an abuse of process and that, if the district judge purported to vary the order under CPR 3.1(7), he was wrong to do so because, in substance, the circumstances that obtained at the time of the claimant's later applications were no different from those that obtained at the date of the application of 9 March.
CPR 7.6(2) discretion
- In view of this conclusion, the question of discretion under CPR 7.6(2) does not arise. But we heard full argument on it. Since it seems that there may be some misunderstanding about the guidance given in Hashtroodi's case, it may be helpful if we express our views on the discretion issue as well.
- The district judge purported to decide the issue of discretion "having regard to the overriding objective and what is said in Hashtroodi's case". He considered that the claimant's solicitors acted reasonably and quickly to obtain the extension "by issuing in good time and the chasing the court". He considered that the points made on behalf of the defendants were "technical arguments". He regarded the Hashtroodi case as "quite a unique case", where the need to serve the claim form had been overlooked until the last day for service. In that case, the only reason why the claim form had not been served was incompetence by the solicitors: there was no explanation for the failure to serve.
- At para 8 of his judgment, District Judge Singleton turned to consider the overriding objective. He went through the check list in CPR 1.1(2). He considered the need to ensure that parties are on an equal footing. He thought that the need to save expense would not be well served by making a decision which would be bound to lead to a negligence claim by the claimant against her solicitor. It would not be proportionate to dismiss the claim because it was served one day late on the first defendant "when an application was made within the four months period and when the first defendant was not being difficult about matters, and against the second defendant when they had admitted a breach of duty and agreed an extension of time until 30 June for serving the claim form".
- Judge Darlow disagreed with the district judge's conclusion. In our judgment, he reached the right decision on this part of the case and for the right reasons. The district judge did not apply himself to the question why the claim form was not served in time. The critical passage in Judge Darlow's judgment is at para 58:
"It seems to me that, unfortunately, and for whatever personal reasons there may be, the failure to carry out the simple, and I use the word 'simple' advisedly, process of service, was that of the Claimant's solicitor. All that was necessary, in the absence of formal notification as to what had happened to her Application, was for her to put two letters into the post on the 22nd March, correctly addressed to the parties and not their Solicitors. Whenever those letters arrived, even if they didn't arrive at all, she and her client would be protected by that deemed service. The difficulties of the last minute scramble that occurred were, I regret, her choice in leaving it that late. Unusually, therefore I find in the circumstances of this case, there was an unreasonable exercise of discretion."
- In our judgment, there was no good reason for the failure by the claimant's solicitors to serve by 24 March. The witness statement by the solicitor who was dealing with the case on behalf of the claimant, makes clear that she knew that the claim form had to be served by 24 March. At para 6, she gave the reason why she was applying for an extension of time. It was because she had received no substantive response from the first defendant to the clinical negligence protocol letter of claim. She said: "This is a serious and potentially substantially valuable claim for the claimant and I do not believe that it is in her interests nor cost effective to serve proceedings and particulars of claim now until we have a substantive response from the first defendant as to what issues are still likely to remain between the parties".
- In our judgment, the failure of the first defendant to respond to the letter of claim was no reason at all for not serving the claim form. It may have been a sufficient reason for seeking an extension of time for service of the particulars of claim, although even that is questionable. But there was no obstacle to serving the claim form. It is not suggested that the claimant's solicitor did not know where to effect service. In not serving the document, the claimant's solicitor made a serious error of judgment.
- Like the judge, we regret that we cannot share the district judge's assessment of the conduct of the claimant's solicitor. We do not consider that she acted reasonably and quickly to apply for the extension of time. By 9 March, there remained only 15 days of the 4 months period and this was a case where the cause of action had become statute-barred in December 2003. Even if there were difficulties in effecting service, the solicitor left matters until very late before she made a move. And when she received the order of 23 March refusing to grant an extension of time for service of the claim form, she could and should have taken immediate steps to serve the document so as to ensure that it was served by 24 March. She failed to send the document by first class post on 23 March and failed in any event to obtain notification from the defendants' solicitors that they were authorised to accept service.
- In our judgment, District Judge Singleton plainly reached the wrong conclusion on the CPR 7.6(2) issue. It is true that in Hashtroodi's case, the court said at para 18 that the power in CPR 7.6(2) had to be exercised in accordance with the overriding objective. But it went on to say that this means that it will always be relevant for the court to determine and evaluate the reason why the claimant did not serve the claim form within the specified period. That is the critical inquiry that the court must undertake in these cases. The strength or the weakness of the reason for the failure to serve is not one of a number of factors of roughly equal importance to be weighed in the balance. The exercise of going through the check list of factors set out in CPR 1.1(2) will often not be necessary. If, as in the present case, there is no reason to justify the failure to serve the claim form in time, it should normally not be necessary to go further. The facts of the Hashtroodi's case itself illustrate the point. In that case, the only reason for the failure to serve the claim form in time was the solicitors' incompetence. It was submitted on behalf of the claimant that an application of a number of the factors set out in CPR 1.1(2) should have led to an extension of time. The submissions were similar to those which found favour with District Judge Singleton in the present case. We cite para 35 of the judgment in Hashtroodi's case:
"It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant's legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time. Despite this, Mr Gore submits that an extension should be granted. In relation to the application of the overriding objective, he relies on the following factors. First, the claim is very substantial. Secondly, the issues in the case were identified early on, so that a short extension of time would not undermine the case management process. Thirdly, the extension of time would not put the parties on a more or less equal footing than they would have been if the extension were not granted. Fourthly, the extension would not increase the cost of the litigation. Fifthly, it would be disproportionate to refuse the extension. Finally, the defendant has not suffered any prejudice as a result of the extension, since at the date of the claimant's application; the defendant had not yet acquired an accrued limitation defence."
- And yet, at para 36 the court said:
"We are in no doubt that the time for serving the claim form should not be extended in this case. The absence of any explanation for the failure to serve us is, on the facts of this case, decisive. Sadly, the errors on the part of Mr Pike were particularly egregious. The other factors identified by Mr Gore are not sufficient to outweigh the complete absence of any reason which might go some way to excusing the failure to serve in time. If we were to grant an extension of time in the present case, it seems to us that the rule stated in CPR r7.5 would cease to be the general rule. Moreover, there would be a real risk that statements made by this court about the importance of the need to observe time limits would not be taken seriously. That would be most unfortunate."
- It should clearly be understood, therefore, that where there is no reason, or only a very weak reason, for not serving the claim form in time, the court is most unlikely to grant an extension of time. It is no answer to say, as District Judge Singleton said in this case, that to insist on service within the time specified by the rules is to adopt a "technical" approach. In a sense, all rules may be said to be "technical". We reiterate what the court said at para 21 in Hashtroodi's case:
"It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim: see CPR r 16.2 (i)(a). These are generous time-limits"
- For the reasons that we have given, Ms Leeson's appeal must be dismissed.
Glass v Surrendran
- On 5 September 2001, the claimant and the defendant were involved in a road traffic accident, as a result of which the claimant suffered injuries to his neck and back. Following a letter of claim from the claimant in November 2001, liability was admitted by the defendant the following month. On 3 September 2004, three or four days before the limitation period expired, the claimant's solicitors issued a claim form out of the Manchester County Court, stating that the value of the claim was less than £15,000. The time for service of the claim form accordingly expired on 3 January 2005, four months after the day of issue: see CPR 7.5(2).
- On 21 December 2004, the claimant's solicitors, Neil Miller & Co, issued an application for permission "to extend service time from the 3 January 2005 to 3 February 2005". The form of application asked whether the applicant wanted a hearing, and, if he did, how long such hearing was expected to last. The claimant's solicitors initially appear to have ticked the box indicating they wanted a hearing, but then to have crossed out the tick, and to have ticked the box saying that they did not want a hearing. However, they did not delete their entry of "5 minutes" as the estimated length of the hearing.
- The grounds upon which the application was said to be made was that the claim form had been issued on 3 September 2004 but not served, that "papers had been with counsel to draft particulars of claim" and that "when returned claimant has to approve, sign and return the particulars of claim". The claimant's solicitors telephoned the court on 23 December 2004, the date when the application was received by the court, and were assured that the application would be dealt with promptly.
- In fact, the application was not dealt with until 4 January 2005, when it came before Deputy District Judge Haworth who dealt with it on paper, and refused the application. After the order refusing the application, the form of judgment included these words:
"any party affected by the terms of this order may apply to have it set aside or varied".
By the time the order was received by the claimant's solicitors, the time for service of the claim form had, of course, expired.
- Following receipt of this order, the claimant's solicitors made a further without notice application ("the second application") seeking to set aside the order of 4 January 2005 and an order granting an extension of time "to file and serve the particulars of claim for such period as the court deems reasonable and at the least until 3 February 2005". The grounds relied on to support the second application were somewhat fuller than those supporting the earlier application. It was explained that the defendant had admitted liability, and that the defendant had been "served with the documents relating to both general and special damages by no later than 16/12/04 and can suffer no prejudice by the extension". It was also explained that, at the time of the issue of the claim form, there was no accountancy evidence available, that the accountant's report "did not arrive until after 29/11/04", that the claimant's approval to that report had not been obtained until 15 December 2004, and that the particulars of claim drafted by counsel had been sent to the claimant on 23 December 2004. It was also stated that the defendant had obtained his own medical report.
- The second application came before District Judge Stephens, who dealt with it at a hearing, at which, of course, only the claimant's solicitors appeared, on 13 January 2005. She acceded to the second application, and ordered that the Deputy District Judge's order of 4 January 2005 be set aside, and that time for "the service of process" be extended to 4pm on 2 February 2005.
- Pursuant to the order of District Judge Stephens, the claim form was duly served on the defendant's solicitors. They then applied on behalf of the defendant to set aside the extension of time granted by District Judge Stephens. The defendant's application was heard by District Judge Stephens, who considered that there was no good reason for departing from her earlier order. The defendant appealed that decision to Judge Tetlow.
- It was common ground before Judge Tetlow that the hearing between the parties before District Judge Stephens on 17 February 2005 should effectively have been treated as a rehearing of the claimant's application to extend time, whereas the district judge appears to have approached the question on the basis that she was, in effect, reviewing her earlier decision. Accordingly, when the defendant's appeal came before Judge Tetlow on 29 April 2005, it was agreed that he should consider the question of whether or not to extend the time for the service of the claim form afresh. In a full judgment, Judge Tetlow concluded that he ought to extend time. The Judge, in common with the parties in argument before him, proceeded on the basis that he was considering the application to extend time before the time for service had expired: in other words, like the parties, he was treating the application as made under CPR 7.6(2), rather than under CPR 7.6(3).
- After setting out the basic facts, the judge rightly referred to Hashtroodi's case as being the relevant authority giving guidance as to the proper approach to applications under CPR 7.6(2). Having referred to the overriding objective, the judge concluded that he ought to extend time for the following reasons:
i) The worst that could be said about the claimant's application was that it had "proceeded on the wrong basis", in that the delay in obtaining the accountant's report would have justified an application to extend time for the service of the particulars of claim, rather than of the claim form;
ii) If he did not extend time, "the choice of the wrong form of application… has meant a windfall (aided by the court's lack of expedition) for the defendant in a case where liability is admitted";
iii) He was not "not convinced" that the claimant's solicitor should be said to be at fault, negligent in choosing to adopt the course he did";
iv) While there had been delay, it had been "short", that this was "not the weak case of the Hashtroodi type" even if the claimant's solicitors had not been "as efficient as [they] might have been" and that the defendant had "been kept informed";
v) The defendant had "know[n] where he is and … has suffered no great prejudice by the extension of time".
- The defendant applied for permission to appeal to this court, arguing that it was a first appeal, but that, even if it was a second appeal, permission to appeal ought to be given. When considering the application, Neuberger LJ decided that, even though Judge Tetlow had effectively considered matters afresh, it was a second appeal, but that the hurdle imposed for a second appeal, namely that contained in CPR 52.13, was crossed in the present case.
- Until shortly before the hearing of the appeal, the only ground upon which the defendant sought to argue that the judge was wrong was that he had not applied the right criteria for considering whether to extend time for service of the claim form under CPR 7.6(2), and that, had he applied the right criteria, he could only have come to the conclusion that he ought not to extend time. Shortly before the hearing of this appeal, Mr Ronald Walker QC, who appeared for the defendant, raised a further point, namely that, in the light of the fact that the claimant's first application for an extension had been refused on 4 January 2005, it was not then open to the claimant to renew his application for an extension of time at least under CPR 7.6(2), as he effectively did in the second application.
- We turn first to consider the defendant's original argument, which was taken before Judge Tetlow, and upon which permission to appeal was granted. In that connection, we must proceed on the simple basis that the claimant had obtained on 8 January 2005 an order without notice for an extension of time for service of the claim form pursuant to an application made under CPR 7.6(2), and that that extension of time had been confirmed by Judge Tetlow on 29 April 2005 after a hearing between the parties.
- As Judge Tetlow rightly said, any court when considering whether to extend time for service of a claim form pursuant to CPR 7.6(2) should follow the guidance given by this court in Hashtroodi's case. We have already set out and analysed that guidance when considering the appeals in Marshall's case and in Leeson's case - see at paras 85 to 88 and 131 to 133 above.
- In our view, what was said by the Court of Appeal in paras 35 and 36 of Hashtroodi's case is equally applicable here. As in that case, the claimant in the present case is unable to identify anything which can fairly be characterised as a reason for extending time for service of the claim form. As Mr Walker said, the apparent justification advanced on behalf of the claimant, namely that his solicitors were awaiting receipt of the accountant's report, is not a reason for delaying service of the claim form. In the first place, if that point could justify any extension of time, it would be an extension for the service of the particulars of claim, not the service of the claim form. The judge appears to have accepted that, but it does not seem to us that this can simply be explained away, as the judge sought to do it, by describing the claimant as having made "the wrong form of application". The essential point is not that the claimant made the wrong form of application, but that the reason which may justify an extension of time for service of the particulars of claim does not justify an extension of time for the service of the claim form.
- Quite apart from this, although the accountant's report may have been received later than the claimant's solicitors had hoped, it was received more than a month before the time for the service of the claim form expired. Further, the particulars of claim had actually been drafted by counsel some two weeks before the expiry of the 4 months period for service of the claim form. Accordingly, the matters relied on by the claimant as a reason for not serving the claim form in time would not, in our view, even have justified an extension of time for service of the particulars of claim.
- Accordingly, it seems to us that this case is very similar to Hashtroodi's case, in the sense that there was simply no basis upon which a competent litigation solicitor, had he thought about the matter properly, could have justified delaying the service of the claim form beyond the date by which it should have been served pursuant to CPR 7.5(2).
- Dr Naylor, on behalf of the claimant, relied on the overriding objective, and on the factors which impressed the judge. As it seems to us, most of those factors were similar to the points prayed in aid on behalf of the claimant in Hashtroodi's case, as referred to in para 35 of the judgment in that case. They do not assist the claimant here any more than they assisted the claimant there.
- It is true, as the judge pointed out, that the claimant's solicitors were apparently led by the court to expect that the application for an extension of time would be disposed of before the date upon which time for service expired, namely 3 January 2005. However, we do not think that fact is of any assistance to the claimant. The claimant's solicitors were well aware at the time they originally made the application for an extension of time that time for service of the claim form would expire on 3 January 2005, and they could, at any time up to that date, have served the claim form. The fact that there was an outstanding application for an extension of time is, therefore, irrelevant. It must follow that the fact that the court indicated that it would deal with the application promptly is also irrelevant.
- In our judgment, the closing comments of this court in para 36 of his judgment in Hashtroodi's case apply with equal force to the present case. Accordingly, we would allow this appeal on the ground upon which permission was given. In these circumstances, it is unnecessary to consider the additional ground of appeal which Mr Walker has sought to raise on behalf of the defendant. But in the light of our conclusions in relation to renewed without notice paper applications for extensions of time at paras 29-40 above, there was no jurisdictional bar to the claimant making the second application.
- The defendant's appeal is therefore allowed and we set aside the extension of time for the service of the claim form granted by District Judge Stephenson.
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