Austin Rover Group Ltd v Crouch Butler Savage Associates
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE LLOYD,SIR JOHN MEGAW |
| Judgment Date | 25 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0325-10 |
| Date | 25 March 1986 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0338 |
[1986] EWCA Civ J0325-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
OFFICIAL REFEREES BUSINESS
(His Honour Judge John Davies, Q.C. Official Referee in Chambers)
Royal Courts of Justice
Lord Justice May
Lord Justice Lloyd
and
Sir John Megaw
86/0338
MR. TIMOTHY S. ELLIOTT (instructed by Howard Bedford Beake, Esq.) appeared on behalf of the Respondents/Plaintiffs.
MISS GENEVRA CAWS (instructed by Messrs Pinsent & Co., Birmingham) appeared on behalf of the Appellants/First Defendants.
This is now an appeal against an order of His Honour Judge John Davies, Q.C. dismissing a summons issued by the first defendants on 25th June 1985. That summons asked (1) that an order made by Master Topley on 18th January 1985, extending the validity of the writ in this action until 26th March 1985 should be discharged and that service of the renewed writ on 29th January 1985 should be set aside; and (2) for a declaration that the writ of summons had never been duly served on the first defendants on the grounds that the purported service in December 1984 did not comply with the Rules of the Supreme Court.
The learned judge held that the writ had been valdidly served in December 1984. He went on in the alternative to hold that if he had been wrong about the service in December 1984 the writ had been validly renewed and then properly served in January 1985.
Having been granted leave by this court, the first defendants now appeal against the order of the learned judge, asking that Master Topley's order be set aside and for a declaration that the writ in this action has never been validly served.
The facts of the matter I take quite shortly from the judgment of the learned judge below. The litigation concerns the construction of a block of offices in Birmingham. The plaintiffs (the respondents in this appeal) became lessees of that block of offices. They were built in 1976 through to 1977 and the architects concerned in their construction were the first defendants, the present appellants. In 1983 or thereabouts the respondents became aware of defects in the floors and windows of the premises and on 28th December 1983 they issued writs against the builders and the architects, but did not serve them. It would seem that those writs are what are commonly described as "protective" writs, guarding against the possibility that the limitation period might be running.
The respondents had been in correspondence with the appellants in 1976, before they had entered into possession. They were in contact again in 1977 and 1978 and finally in April 1984 when there were further investigations into what was occurring at the premises. That is material, as the learned judge below pointed out, because letters from the appellants bore the addresses of their places of business, the relevance of which will become apparent in a moment. The address which figured first, and was the material one at the time to which I have referred, was an address at 533 Coventry Road, Birmingham.
The writ having been issued in December 1983, by December 1984 the time was coming when that writ had to be served, and when purporting to do so the plaintiff/respondent addressed it to "The Secretary, Crouch Butler Savage and Associates" (being, with one minor error, the name of the architects) at the address 533 Coventry Road Birmingham, as the one they knew. As sometimes happens when time is allowed to pass, unknown to the respondents the architects (the appellants) had in the three months or so before the attempted service of the writ moved their office from Coventry Road to another address in Birmingham and had asked the Post Office to forward their correspondence to that address. They moved it seems in about September 1984.
It is not disputed that the writ, having been put in the post addressed as I have indicated, through the good offices of the Post Office was redirected and ultimately arrived at the new address, the proper place of business at that time of the architects, on 21st December 1984, that is to say some six days before it would have expired. Nor is it disputed that the envelope was opened either by a Mr. Cliff, a partner in the firm, or alternatively by his secretary who immediately handed the contents of the writ to him. The architects (appellants) got in touch with their solicitors on 2nd January 1985—which, it will be appreciated, was over a year after the original issue of the writ in December 1983. Their solicitors told the respondents that in their view service had not been properly effected and that the writ was in consequence invalid. The plaintiffs (respondents) then applied to Master Topley, as I have indicated, to renew the writ and he ordered that that should be done on 18th January 1985. That renewed writ was served on 29th January 1985.
It is against that background that the points which arise in this case have to be determined.
Two questions need consideration. First, whether the service or purported service of the writ by post in December 1985 was valid. Secondly, if it was not, whether the learned judge properly exercised his discretion in dismissing the appeal against Master Topley's renewal of the validity of the writ so that the second service on 29th January 1985 was itself valid.
I deal with the first question initially, namely whether the service in December 1984 was or was not valid. The relevant parts of the Rules of the Supreme Court are, first, Ord. 10, r.1, sub-rules (1), (2) and (3) of which are as follows:
"(1) A writ must be served personally on each defendant by the plaintiff or his agent.
(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 letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.
In sub-paragraph (a) 'first-class post' means first-class post which has been pre-paid or in respect of which prepayment is not required.
(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 (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to or, as the case may be, inserted through the letter box 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 (or, if the deponent is the plaintiff's solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to, or, as the case may be inserted through the letter box for, the address in question, will have come to the knowledge of the defendant within 7 days thereafter; and
(ii) in the case of service by post, a copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee."
Then there is Ord.81, which deals with actions by and against firms of partners. By rule 1—
"Subject to the provisions of any enactment, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue, or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued."
One can then turn to Ord.81, rule 3 from which it is necessary to read sub-rules (1), (2) and (4):
"(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2) [I interpolate that that is not relevant], be served—
(a) on any one or more of the partners, or
(a) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control, or management of the partnership business there; or
(b) by sending a copy of the writ by ordinary first-class post (as defined in Order 10, rule. 1(2) to the firm at the principal place of business of the partnership within the jurisdiction
and subject to paragraph (2) where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a writ is served on a firm in accordance with sub-paragraph (1)(c)—
(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5) after the date on which the copy was sent to the firm; and
(b) any affidavit proving due service of the writ must contain a statement to the effect that—
(i) in the opinion of the deponent (or, if the deponent is plaintiff's solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to the firm at the address in question, will have come to the knowledge of one of the persons mentioned in paragraph (1)(a) or (b) within 7 days thereafter, and
(ii) the...
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