Amalgamated Metal Trading Ltd v Baron
| Jurisdiction | England & Wales |
| Judge | HH |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWHC 3207 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim No: 2010 Folio 395 |
| Date | 21 December 2010 |
[2010] EWHC 3207 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MERCANTILE COURT
Before: His Honour Judge Chambers Qc
(sitting As A Judge Of The High Court)
Claim No: 2010 Folio 395
Edmund Cullen (instructed by SNR Denton LLP) for the Claimants
Charles Dougherty (instructed by Hill Dickinson LLP) for the Defendant
Hearing date: 15 th November 2010
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.
HHJ Chambers QC:
Introduction
This judgment is concerned with whether or not there was good service of these proceedings upon the Defendant in Peru and what should happen in the event that there was not.
The relatively straightforward facts relating to the issues now in question produce some relatively difficult matters for decision.
References in this judgment are to bundle and divider numbers. The bundle is not paginated.
The facts
On 26 March 2010 His Honour Judge Mackie QC gave permission to serve the claim form and the particulars of claim in this action on the Defendant in Peru. There is no suggestion that the permission was defective in any way. Thus it is accepted by the Defendant that there is at least a serious issue to be tried in respect of the allegation that by reason of the Defendant's fraudulent misrepresentations made in late 2007 and early 2008 as to the solvency of a company called BHL Resources Limited Inc (“BHL”) the Claimants, who are all metal brokers, afforded BHL facilities in respect of metal trading on the London market. It is said that in consequence of the insolvency of BHL the Claimants have suffered losses which total some US$ 5,503,382.97.
On 20 April 2010 there was an attempted service of the proceedings upon the Defendant at his apartment in Lima, Peru. Accounts differ as to what occurred. I shall set out each account in detail. I start with the Defendant.
In a statement dated 1 June 2010 (TB1/3) the Defendant gives the relevant narrative as follows:
“…
6. At about 11am on Tuesday, 20 April 2010, my maid, Yaned Quirita Saavedra answered the videophone in my apartment to a gentleman who, she told me, informed her that he had some documents for me (although he did not say what the documents were). I understand that the gentleman concerned was Mr Victor Hugo de la Trinidad Suarez whom I believe to be a private investigator employed by Asesoria General, Privada E.I.R.L. There is now shown to me [TB2/2] a copy of Mr Hugo's business card …
7. Ms. Quirita Saavendra allowed Mr Hugo into the apartment via the service lift which can be controlled only from the apartment. She brought the documents to me in the study while Mr Hugo waited in the service corridor.
8. She showed me a letter from Denton Wide Sapte LLP dated 29 March 2010 … and certain documents. The documents did not include any translations into the Spanish language.
9. I returned the letter and documents to Ms Quirita Saavedra and asked her to inform Mr Hugo that I would not receive them and that he should take the documents away with him, which I believe she did.
10. I understand that all the documents were returned to Mr Hugo who left my apartment. I did not have any face-to-face contact with Mr Hugo and neither was I shown nor did I sign any receipt.
11. Later that day, at about 12.30pm, the maid discovered the package of documents in the laundry, which is located in my apartment close to the service lift. Neither I nor my maid were aware that Mr Hugo had left the documents in the apartment until they were discovered. I am informed by Ms. Quirita Saavedra and believe that she asked Mr Hugo as he was leaving if he had the documents and he replied that he did.
…”
An acknowledgment of Service stating an intention to challenge the jurisdiction was filed on 10 May 2010 (TB2/2).
The Defendant made his application under CPR Pt 11 on 4 June 2010 (TB1/1).
On 15 September 2010 the validity of the claim form was extended for six months commencing on 29 September 2010 (TB1/13).
In the trial bundle at TB1/5 is an affidavit by Daniel Cabrera Arvazzetti. It is dated 21 September 2010 and relevant parts read as follows:
“I, Daniel CABRERA ARVAZZETTI am a process server acting under the instruction of my supervisor, Victor de la Trinidad Saurez (sic) from the firm Asessoria General Privada, a sub-contractor of the Latin America Group, Inc., Miami, Florida, USA whose President/CEO is Michael Youngs. I make oath and swear as follows:
“1. [Describes an abortive visit to the apartment building on 19 April 2010.]
2. Thereafter, the following morning, Tuesday the 20 th, April 2010, I returned to the same location and after security personnel at the building called the apartment of [the Defendant] they indicated that he was there and then I was told to go up the elevator. As described in paragraph 3 below, at 11:03am, I personally served the following legal papers on [the Defendant] at his apartment [address given] by handing them to and leaving them with [the Defendant]:
(A) Claim form issued by the English High Court
(B) Response Pack
(C) Order of His Honour Judge Mackie dated 26 March 2010
(D) Application Notice dated 24 March 2010
(E) Witness Statement of Andrew James Myers
(F) Exhibit “AJM 1”.
3. [The Defendant's] maid was waiting for me when the elevator opened at his apartment and I advised that I had a package for [the Defendant]. [The Defendant] then appeared from another room and came to receive the package personally. I asked him in Spanish if he was [the Defendant] and he answered in the affirmative. I told him that I had some papers for him. I then gave him the documents and I also gave him a business card with the name of my supervisor Victor de la Trinidad thereon in case he had any questions regarding the package. I told him to call Victor if he had any questions regarding the documents. I did not introduce myself as Victor de la Trinidad. He then turned round and walked for about two or three meters and after looking at the documents turned round again, said he did not sign anything (in Spanish) and gave the documents to his maid to give back to me as I was leaving. I refused to take the documents back and went down the elevator of the building and left the area. I did not see what the maid did with the documents.”
On 26 October 2010 the Claimants applied for various forms of relief in the event that service was bad (TB1/2).
In a brief statement dated 28 October 2010 (TB1/7) Ms Quirita Saavedra confirmed the Defendant's account of events.
I thus have two competing accounts of which neither has any real corroboration. As will appear, I do not think that it matters which is correct insofar as the question of good service is concerned but the circumstances of the visit will assume greater significance later in this judgment.
I start with the assumption that one should not be over swift to embrace the evidence of one in respect of whom there is a serious issue of fraud to be tried. While I appreciate the fact that Ms Quirita Saavreda has given evidence, obvious reservations may be expressed as to its acceptability. I further bear in mind that, from an English point of view, what Mr Cabrera Arvazzetti is said by the Defendant to have done is precisely what someone effecting personal service ought not to do, namely to give the documents to a third party for delivery to the defendant. But these are simply starting points.
Mr Cabrera Arvazzetti was not an English process server. He was serving process in a country where, as I shall find, the normal process of service was through an official.
Whatever the faults of the Defendant may be there can be no doubt of his promptness in producing detailed evidence of what he said had occurred. I find his account to be entirely in keeping with what one might expect of a cautious man who is used to treating a servant in the manner that he describes and the introduction to his apartment of an unknown such as Mr Cabrera Arvazzetti via the service lift. I am also struck by the description of the subsequent discovery of the package in the laundry.
Mr Cabrera Arvazzetti's account is also coherent. The problem is that it is too coherent. By this I mean, for instance, that I have some difficulty with the statement that the documents were served at 11:03am. To make such a statement five months after the event is either incredible or comes from a note. But there is no note.
Whatever Mr Cabrera Arvazzetti's view of how he should have gone about preparing his evidence, it is a common place known to any competent solicitor that, where there is a conflict of evidence, one looks for a contemporaneous note to support the account that is being given. I think it axiomatic that a process server charged with service of documents in what will often be controversial circumstances would be expected to make a prompt and detailed note of what is said to have occurred. In the present case, there was plenty of time for the London solicitors to seek the production of such a note but none was produced. I infer that there was none.
As I have indicated, there being no note, the detail of Mr Cabrera Arvazzetti's account becomes suspect. Nor am I persuaded that Mr Cabrera Arvazzetti would have produced his supervisor's card for the reasons that he gives. He does not say that he introduced himself and he probably did not, otherwise the Defendant would not have been confused as to his identity. Nor, had he explained whose card it was, would the Defendant have thought that it was the process server whose name appeared upon it.
On balance I accept the version of...
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