(1) Hallam Estates Ltd (2) Michael Stainer v Theresa Baker
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 24 April 2012 |
| Neutral Citation | [2012] EWHC 1046 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10D01721 |
| Date | 24 April 2012 |
[2012] EWHC 1046 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ10D01721
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Lewis (instructed by Girlings Solicitors) for the Claimants
Jonathan Price (instructed by Gaby Hardwicke) for the Defendants
Hearing dates: 18 April 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The issue in this appeal is whether the claim form in this action for libel was served in time. The words complained of are in an e-mail dated 17 May 2010. The one year period of limitation had therefore expired by 17 May 2011. The claim form was issued shortly before that date, namely on 11 May. In accordance with CPR Part 7.5(1) the time for service expired before midnight on the calendar day four months after the date of issue of the claim form, namely 11 September 2011. The claim form was in fact served on 9 November 2011. Service was pursuant to an order obtained on 30 August 2011 under CPR 7.6(2), by which the Master ordered that the time for service be extended to midnight on 11 November 2011.
The Master's order extending the time for service was made without notice to the Defendant. It therefore provided that the Defendant might apply to set it aside pursuant to CPR Part 23.10(1). On 19 September 2011 the Defendant did apply to set aside the order. On 7 November Master Kay heard that application and reserved his judgment. On 9 November he refused the Defendant's application. He also made an order for service of the claim form by an alternative method, namely upon the solicitors whom the Defendant had instructed, and who represented her on her application to set aside the order of 30 August 2011 (but who did not have instructions to accept service of the claim form).
The Defendant appealed with permission granted by Eady J on 30 January 2012. At the end of the argument on 18 April 2012 I stated that I would allow the appeal and give my reasons in writing later, which I now do.
The nature of the claim and the background to it are set out in the Particulars of Claim. The First Claimant is the freehold owner of premises in Folkestone known as The Grand, at which the Defendant formerly occupied an apartment. The First Claimant owns the goodwill in the business. The Second Claimant is the sole director and the licensee and together with his wife he also finances the operations of the business. Between August 2008 and August 2011 the Defendant complained of noise with the result that a noise abatement notice was issued against the First Claimant. The Defendant also complained of what she alleged to be breaches of planning laws. The Claimants contend that the Defendant's complaints were totally unjustified. The words complained of in the e-mail dated 17 May were addressed to six individual publishees. One of the addressees is the editor of the Folkestone Herald, but it is not alleged that he republished the allegations complained of.
The meanings which the Claimants attribute to the words complained of can be summarised as follows. The Claimants ignored complaints about excessive noise from many residents, they breached a court injunction and a Planning Obligation Agreement with the local council by allowing amplified speech, they routinely permitted drunkenness and such like behaviour beyond midnight, they routinely caused or permitted the illegal serving of alcohol to minors, and other similar allegations. The claim includes one for aggravated damages, and an injunction.
There is exhibited a file of correspondence. The Letter of Claim purportedly sent in accordance with the Pre-Action Protocol for defamation was not sent until 22 August 2011. However, there had been references on behalf of the Claimants to a possible claim in defamation, amongst other causes of action, in letters dated 2 June 2010, 19 July 2010 and 17 November 2010.
On 18 August 2011 solicitors for the Claimants had sent a fax to the solicitors for the Defendant asking whether they were instructed to accept service of proceedings. They also wrote that they would be sending a letter pursuant to the Pre-Action Protocol and would serve a claim form with that. When they did send the Letter of Claim the final words read as follows:
"Given your failure to respond to our fax of 18 August 2011 we are taking steps to serve a sealed copy of the claim form directly on your client, and the relevant certificate of service will in turn be filed at court. We enclose a further copy. We are also sending your client a copy of this letter. Unless we hear from you with suitable proposals in respect of the relief sought above, we will file and serve Particulars of Claim in due course. In this regard, if it is your client's intention to put forward suitable proposals, then please say so by return. We can then agree a formal extension to the time for service of the particulars. If we do not hear from you, the particulars must be served by 9 September 2011. There is, therefore, no scope for ambiguity on this issue. In any event we look forward to your substantive response to this letter of claim by 6 September 2011".
On 25 August 2011 solicitors for the Claimants again wrote asking the Defendant's solicitors whether they were instructed to accept service of the proceedings and, if not, to provide the Defendant's current residential address and contact details. By that time they had appreciated that the Defendant no longer lived at The Grand. They also asked for an extension of time for service of the claim form. On 23 August the solicitors for the Defendant had written that they were seeking instructions from the Defendant, but they have never stated that they had instructions to accept service on her behalf.
THE APPLICABLE LAW
The CPR make provision for service of a claim form where the defendant does not give an address at which the defendant may be served. They include the following:
"6.9 (2) subject to paragraphs (3) to (6), the claim form must be served on the defendant at…[her] usual or last known residence…
(3) Where a claimant has reason to believe that the [usual or last known residence]… is an address at which the defendant no longer resides…, the claimant must take reasonable steps to ascertain the address of the defendant's current residence ("current address").
(4) Where, having taken the reasonable steps required by paragraph (3), the claimant -…
(b) Is unable to ascertain the defendant's current address, the claimant must consider whether there is –
(1) an alternative place where; or
(2) an alternative method by which, service may be effected.
(5) If, under paragraph (4) (b) there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15. [Service of claim form by an alternative method or at an alternative place]
(6) Where paragraph (3) applies, the claimant may serve on the defendant's usual or last known address… where the claimant –
(a) cannot ascertain the defendant's current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b)."
CPR Part 7 .6 includes the following:
"(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made (a) within the period specified within rule 7.5 …"
The Court of Appeal authorities on the exercise of the court's discretion under CPR Part 7.6(2) are Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 WLR 3206; Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945, Hoddinott v. Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203; [2008] 1 WLR 806 and Cecil v Bayat [2011] EWCA Civ 135; [2011] 1WLR 3086.
These authorities support the following propositions:
"1. In the absence from CPR 7.6(2) of any condition such as is specified in CPR Part 7.6(3) (a claimant who applies for an extension of time after the end of the period specified by Rule 7.5 the court may make such an order only if the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so), the power under CPR 7.6(2) must be exercised in accordance with the overriding objective: Hashtroodi para [18].
2. 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 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 rule 7.6(2) justly without knowing why the claimant has failed to serve the claim form within the specified period: ibid. In that paragraph the court quoted with approval the following passage from Professor Zuckerman's book Civil Procedure (2003) page 180:
"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…"
3. 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. The weaker the reason the more likely the court will be to refuse to grant the...
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