Arab Monetary Fund v Hashim (No. 4)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE WOOLF,LORD JUSTICE FOX |
| Judgment Date | 17 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0716-1 |
| Docket Number | 92/0669 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 1992 |
[1992] EWCA Civ J0716-1
Lord Justice Fox
Lord Justice Nourse
Lord Justice Woolf
92/0669
CH 1988 A. No. 9317
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HOFFMANN)
Royal Courts of Justice,
MR DANIEL SEROTA Q.C. (instructed by Messrs. Proctor Gillette) appeared on behalf of the Appellant (5th Defendant).
MR C. FLINT (instructed by Freshfields) appeared on behalf of the Respondents.
The principal question with which we are here concerned is whether, for the purposes of RSC Ord. 4, r.9 (Consolidation, etc.) a cause or matter becomes "pending" on the issue of the originating process, or only when it is served. In the court below Hoffmann J. was of the opinion that the former alternative was correct.
The background to the proceedings and their history to date are set out in the judgment of Hoffmann J., which is reported at (1992) 1 W.L.R., 553. Little repetition is necessary. The Judge had before him an application by Mr Jalal Ohan Stephan, a resident of the State of Texas, to set aside an order for the renewal of a writ made by him on 15th June 1990, an order made by the Master on 14th June 1991 under Ord. 11, r. 1 (1) (c), giving leave for the issue of a concurrent writ for service on Mr Stephan out of the jurisdiction and also the service itself. The application was dismissed.
With the leave of the Judge, Mr Stephan appeals to this Court. He does not raise all the points that he raised below. He contends that the Judge's refusal to set the service aside proceeded on an error of law; further or alternatively, on a single error of principle in the exercise of his discretion.
I deal first with the alleged error of law. On 8th December 1989 Hoffmann J. ordered two actions commenced by the Arab Monetary Fund ("the AMF") and known as "the main action" and "the secondary action" respectively, to be consolidated. Mr Stephan was a defendant to the secondary action, but not to the main action. At the time when the order for consolidation was made the writ in the secondary-action had not been served either on him or on any of the other defendants to that action. He contends that the secondary action was therefore not "pending" and that the order was on that ground invalid. If the order was invalid, so that the secondary action retained its separate existence, it could not have been said that "the claim is brought against a person duly served within or out of the jurisdiction" within Ord. 11, r. 1 (1) (c), and Mr Stephan's application to set the service aside must succeed.
So far as material, Ord. 4, r. 9 (1) is in these terms:
"Where two or more causes or matters are pending in the same Division then, if it appears to the Court—the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them".
Immediately following r.9 in the Supreme Court Practice 1992, there is a Note which reads thus:
"There is a discretion to consolidate 'pending' actions, that is to say actions in which the writ has been served ( The Helenslea (1882) 7 P.D. 57), and in which judgment has not yet been obtained and satisfied".
Ord. 4, r.9 was introduced as part of the 1962 revision (originally as r.10), when it replaced Ord. 49, r.8. There has been a reference in the Notes in the Supreme Court Practice to The Helenslea as authority on the meaning of the word "pending" since 1905, and perhaps earlier.
The Helenslea is the foundation of the argument of Mr Serota, Q.C., for Mr Stephan, that the writ must be served before the action can become "pending". On 24th January 1881, when that case was decided, the general practice was governed by Ord. 51, r.4 of the Rules in the First Schedule to the Supreme Court of Judicature Act 1875:
"Actions in any division or divisions may be consolidated by order of the Court or a Judge in the manner heretofore in use in the Superior Courts of Common Law".
It is to be noted that the rule did not refer to "pending" actions. However, Ord. 49, r.8 of the Rules of the Supreme Court 1883, which came into force on 24th October 1883, was in these terms:
"Causes or matters pending in the same Division may be consolidated by order of the Court or a Judge in the manner in use before the commencement of the principal Act in the Superior Courts of Common Law".
In The Helenslea Sir Robert Phillimore declined to consolidate two cross-actions between the owners of two vessels which had been involved in a collision on the ground that the writ in one of the actions had not been served. At p. 60 he said:
"Two suits can only,I think,be consolidated after each of them has become a lis pendens; and it is clear that a suit in personam does not become a lis pendensuntil after service of the writ of summons. On this point the well-known case of Ray v. Sherwood is an authority".
Mr Serota submitted that in arriving at his decision Sir Robert Phillimore must have had the wording of Ord. 48, r.9 in mind. I cannot accept that submission. Not only was he speaking nearly three years before Ord. 48, r.9 came into force; the terms in which he expressed himself suggest that he cannot have been considering a provision which contained the word "pending". If he had any provision of the rules in mind, it must have been the original Ord. 51,r.4.
At first blush Sir Robert's words do nevertheless give some general support to Mr Serota's submission. He thought that two suits could only be consolidated after each of them had become a lis pendens, in other words, a pending action, and that a suit in personam did not become such until after service of the writ. However, like Hoffmann J., I think that Sir Robert Phillimore must be taken to have been applying the practice of the Admiralty Court. It does not follow that the practice of that court would have been a reliable guide to the effect of the original Ord. 51, r.4, or the substituted Ord. 49, r.8, far less to that of the modern Ord. 4, r.9. I therefore agree with the Judge that The Helenslea can have no decisive...
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