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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Murrills v Berlanda & Anor  EWCA Civ 6 (30 January 2014)
Cite as:  EWCA Civ 6
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
HHJ DENYER QC (sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
SIR STANLEY BURNTON
| Mrs Mary Joesphine Murrills (previously Nee)
|- and -
|Dr Maurizio Berlanda
The Belvedere Medical Group Ltd
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Howard Elgot (instructed by Kobalt Law LLP) for the Respondents
Crown Copyright ©
Sir Stanley Burnton:
"We understand that you are no longer consulting at that address and if you wish us to use an alternative correspondence address for service of proceedings, please notify us accordingly, otherwise we will continue to use the Reshape address."
The letter outlined the procedural position, stating that the proceedings were due to be served by posting them on 19 June 2012. This was of course true if the claim form was to be served within the jurisdiction; if it was to be served in Italy, the form would be valid for an additional 2 months. The letter suggested that the parties should agree for the claim form to be served on each Defendant with a 6-month extension of time for service of other documents, including Particulars of Claim, expert evidence and schedule of loss. Parenthetically, I express some surprise that, despite the expiration of the limitation period and the requirements of the clinical negligence protocol, the solicitors were apparently not in a position to serve the Particulars of Claim or to comply with paragraphs 4.2 and 4.3 of Practice Direction PD 16.4, and that they sought such a long extension of time, but nothing turns on this. The letter asked the Respondent to confirm his address for service in England, and stated that if the Appellant's solicitors did not hear from the Respondent by 12 June, "we will make application to Court in any event and will serve proceedings at the address previously given by you", by which they meant the address of Re-Shape in Kent.
"Please confirm your address for service. You previously gave us the address of Re-Shape … but we have received a note from them advising you are no longer at that address, and they have no forwarding address for you. If we do not receive an alternative address for service by 22 October 2012, we will apply to the Court for permission to serve you at your email address … under Rules 6.15 and 6.27 of the Civil Procedure Rules 1998 (as amended)."
The judgment appealed from
"This is not a case where D1 was seeking to avoid service. He had provided requisite information to C. It follows that it would be a wrongful exercise of discretion (assuming I have such a discretion) where the correct procedure was not followed, where following the correct procedure was not unduly burdensome or difficult and where the defendant was not deliberately making life difficult were I not to accede to the Defendant's application and strike out these proceedings."
The grounds of appeal
"Persons carrying on business in another name
5C.1 This paragraph applies where –
(1) a claim is brought against an individual;
(2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and
(3) that business is carried on in a name other than that individual's own name ('the business name').
5C.2 The claim may be brought against the business name as if it were the name of a partnership."
Lord Justice Beatson:
Lord Justice Kitchin: