Mooney (Arthur) and Declan Rodgers P/A Declan Rodgers and Company Solicitors

JurisdictionNorthern Ireland
JudgeMaguire J
Judgment Date23 March 2020
Neutral Citation[2020] NIQB 41
CourtQueen's Bench Division (Northern Ireland)
Docket NumberRef: MAG11042
Date23 March 2020

[2020] NIQB 41

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

Maguire J

Ref: MAG11042

2013 No. 49068

Between:
Arthur Mooney
Plaintiff/Appellant;
and
Declan Rodgers P/A Declan Rodgers and Company Solicitors
Defendant/Respondent.

Judgment: approved by the Court for handing down (subject to editorial corrections)*

Maguire J

Introduction

1

In this case the plaintiff/appellant is a Mr Arthur Mooney and the defendant/respondent is Declan Rodgers p/a Declan Rodgers and Co solicitors.

2

What is before the court are two appeals against decisions of Master Bell made on 7 December 2017. In respect of the first, the Master set aside service of a writ dated 13 March 2014 by consent under Order 12 Rule 8. In the second, he refused an application under Order 6 Rule 7 to extend time for service of a writ of 9 May 2013 to 23 July 2014. Mr Lyttle QC appears on behalf of the appellant and Mr MacMahon BL appeared on behalf of the respondent. The court is grateful to both of them for their well-focussed submissions.

The Factual Background

3

The factual background can be conveniently set out in bullet point form as follows:

• The underlying dispute between the parties relates to an alleged business transaction going back to 2007. In essence, it is alleged to have involved the defendant receiving a sum of money (£100,000) from the plaintiff for the purpose of the said sum being invested on 31 May 2007 in a company called Liberty Investment Plc.

• On 9 May 2013 the plaintiff took out a writ in relation to this transaction. The writ was directed at “Declan Rodgers p/a Declan Rodgers and Company solicitors of 463–469 Lisburn Road, Belfast BT9 7EZ”. The writ sought repayment from the defendant of the sum of £100,000 or alternatively damages, with interest and costs.

• The writ had the usual one year period of validity.

• The writ initially was held back and was not served.

• However, the plaintiff claims that his solicitors purported to serve the writ under cover of a letter dated 13 March 2014 addressed to the defendant at 463–469 Lisburn Road, Belfast. The service which the plaintiff purportedly effected of the writ was by first class post, the letter and the writ being allegedly posted on 13 March 2014. Service in this way is not unusual and there is no dispute that, if legally effective, the writ would have been served at a point where it would have been within the period of validity, which did not expire until 8 May 2014.

• On the same date — 13 March 2014 — the plaintiff sent (again by post) a copy of the writ (together with a covering letter) to Marsh Claims Consulting, who were claims handlers for the defendant's professional indemnity insurers, who on 21 March 2014 instructed a firm of solicitors to act for it (McCloskeys).

• McCloskeys became active in the case on 27 March 2014. On that day they wrote to the defendant and to the plaintiff's solicitors. The defendant was provided with a copy of the 13 March letter to Marsh Claims Consulting and a copy of the writ. The defendant was asked to confirm whether or not the writ had been served on him and if it had what the date of service was. He was told that McCloskeys would not enter an appearance to the writ until it had received confirmation from him that the writ had been validly served. As regards McCloskeys contact with the plaintiff, it asked the plaintiff's solicitors to provide details to them of service of the writ on Mr Rodgers.

• A reply was received by McCloskeys from the plaintiff's solicitors on 2 April 2014. It stated that service of the writ had been on Declan Rodgers by first class post at the last known address they had for Mr Rodgers. The solicitor at that time acting for McCloskeys has averred in respect of the receipt of this letter that “I noted that the plaintiff's solicitors had addressed their letter to the defendant (viz the letter of 13 March 2014) at 463–469 Lisburn Road, Belfast” whereas “the address that I had in corresponding to the defendant was 420–422 Lisburn Road, Belfast, as this was the address I understood the defendant was practising from”. The solicitor drew this to the plaintiff's solicitor's attention by a letter dated 10 April 2014. This letter recorded what is stated above and ended by saying that “we have written to our client again today with regard to the service of proceedings. We would ask you to bear with us for a short time longer”.

• As far as the contact between McCloskeys and the defendant was concerned, the defendant, in respect of the letter sent to him by McCloskeys of 27 March 2014, supra, has averred that he received it and its enclosures, including a copy of the writ, but that “it appears that I did not answer that correspondence”. The defendant acknowledges that this led to McCloskeys sending him a further letter of 10 April 2014. That letter had again asked the defendant to confirm whether or not proceedings had been served on him and had enclosed again the earlier correspondence between the parties of 27 March 2014 and a copy of the plaintiff's solicitor's letter to McCloskeys of 2 April 2014. It also noted that “the time period for entering an appearance to the proceedings has long since passed”. Speaking of this letter, the defendant has averred that “I do not know … whether I was aware at that stage that the writ had been served to the wrong address”. However, it is clear that on 10 April 2014 the defendant e-mailed McCloskeys stating that “I never received correspondence from McCanns” (the plaintiff's solicitors). Notably the defendant also averred that he did not believe that he made “a specific visit to the Bedeck building (i.e. the address to which the writ was claimed to have been originally sent) to check for the letter before replying”, though he goes on to say that “it is highly likely that he had collected mail in the period between 19 March 2014 and 10 April 2014”.

• On 15 April 2014 McCloskeys wrote to the plaintiff's solicitors to tell them that the defendant “has instructed us that he has received no correspondence from you”. The letter also imparted the information that McCloskeys had also been instructed by the defendant that he (the defendant) had been declared bankrupt on or about 28 February 2014. The letter goes on:

“You will appreciate that in light of, firstly our client's instructions that proceedings were not served on him and, secondly, that he had been declared bankrupt, it would be inappropriate for us to enter an appearance to the writ of summons”.

• The validity of the writ expired on 8 May 2014.

• On 11 July 2014 the Post Office returned to the plaintiff's solicitors unopened its correspondence with the defendant of 13 March 2014 together with the Writ. It was addressed to 463–469 Lisburn Road, Belfast. This fact was not communicated to the defendant's solicitors until shortly before the hearing of December 2017 before the Master.

• On 22 July 2014 the plaintiff's solicitor served the writ of summons on the defendant at his 420–422 Lisburn Road address. It was served by first class post and there is no dispute that it was received but, as already noted, by this date it had expired.

• On 2 September 2014 the defendant's solicitors wrote to the plaintiff's solicitors as follows:

“We write to reaffirm that our client's instructions are that the writ of summons was not served on him. The validity of the writ has now expired and therefore you will either have to issue a fresh writ of summons or make an application for leave to extend the validity of the writ. If you intend to make an application for an extension of the validity of the writ then please provide us with a copy of the application as we wish to appear at the hearing of the application.”

• A reminder, in similar terms, was sent by the defendant's solicitors to the plaintiff's solicitors on 4 January 2016 and later on 5 January 2017.

• On 27 March 2017 the defendant's solicitors initiated proceedings for a declaration that the writ had not been duly served on the defendant. This was probably brought about by the receipt of a Statement of Claim from the plaintiff earlier that month.

• On 24 May 2017 the plaintiff applied to the court for leave to extend time for service of the original writ.

• On 7 December 2017 Master Bell made the orders referred to at the outset of this judgment. This led to the plaintiff appealing the orders made by Master Bell to the High Court.

The relevant legal provisions

(1) Service of the writ

4

Order 10 Rule 1(2) is the Rule which applies in this case. It states that:

“(2) A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served —

(a) By sending a copy of the writ by ordinary first class post to the defendant at his usual or last known address, or

(b) If there is a letterbox for that address, by inserting through the letterbox a copy of the writ enclosed in a sealed envelope addressed to the defendant …

(3) Where a writ is served in accordance with paragraph (2) —

(a) The date of service shall, unless the contrary is shown, be deemed to be the seventh day … after the date on which the copy was sent to or, as the case may be, inserted through the letterbox for the address in question.

(b) Any affidavit proving due service of the writ must contain a statement to the effect that —

(i) In the opinion of the deponent the copy of the writ, if sent to, or, as the case may be, inserted through the letterbox for, the address in question, will have come to the knowledge of the defendant within seven days thereafter; and

(ii) In the case of service by post, the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee.”

(2) Extension of time under Order 6 Rule 7

5

Order 6 Rule 7(2) states as follows:

“(2) Where a writ has been served on a defendant, the court may by order extend the validity of the writ...

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