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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Collier v Williams [2006] EWCA Civ 20 (25 January 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/20.html Cite as: [2007] 1 All ER 991, [2006] EWCA Civ 20, [2006] 1 WLR 1945 |
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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)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DYSON
and
LORD JUSTICE NEUBERGER
____________________
| (1) COLLIER |
Appellant |
|
| - and - |
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| WILLIAMS --- (2) MARSHALL RANKINE & ANR - and - MAGGS --- (3) LEESON - and - MARSDEN & ANR --- (4) GLASS - and - SURRENDRAN |
Respondent Appellant Respondent Appellant Respondent Appellant Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
____________________
Crown Copyright ©
Dyson LJ: this is the judgment of the court to which all its members have contributed.
CPR 6.4, 6.5(5) and (6)
CPR 6
"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).
Personal service
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.
(5) Where–
(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)
(6) Where–
(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 |
| Individual | 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)
"No solicitor acting for the party to be served": CPR 6.5(6)
"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."
Paper applications without notice
"(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."
"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."
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
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 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."
Collier v Williams
"Given limitation has expired we presume you have issued and served proceedings? If so when and on whom?"
"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."
"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."
"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."
Marshall and Rankine v Maggs
"(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)."
(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)
Ground 2: CPR 6.5(6) and "usual or last known residence".
"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."
"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."
"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."
"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."
Ground 3: extension of time and dispensing with service
Grounds 4-9: extension of time for service of the claim form
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;
Ground 5
"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)."
Ground 4
"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 [1999] 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."
Grounds 6-9: challenge to the approach of the judge to CPR 7.6(3)
"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."
Our decision under CPR 7.6(2)
Leeson v Marsden and United Bristol Health NHS Trust
"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".
"If you wish to obtain the extension ex parte and wish us to sign a consent order, please let us have a draft shortly".
Jurisdiction
"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".
CPR 7.6(2) discretion
"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."