Barclays Bank of Swaziland Ltd v Hahn
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brightman,Lord Templeman,Lord Griffiths,Lord Lowry |
| Judgment Date | 18 May 1989 |
| Judgment citation (vLex) | [1989] UKHL J0518-2 |
| Date | 18 May 1989 |
| Court | House of Lords |
[1989] UKHL J0518-2
Lord Keith of Kinkel
Lord Brightman
Lord Templeman
Lord Griffiths
Lord Lowry
House of Lords
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Brightman. I agree with it, and for the reasons given by him would dismiss the appeal.
My Lords,
The question before your Lordships is the validity of the service of a writ on the appellant, Mr. Hahn. The mode of service adopted by the respondents' solicitors was the insertion of the copy writ through the letter box of Mr. Hahn's home at Amersham. At that particular moment it so happened that Mr. Hahn was outside the jurisdiction, though he came within the jurisdiction some two hours later. Mr. Hahn claims that such service was ineffective owing to his absence from the jurisdiction at the material time.
Mr. Hahn is a national of the Republic of South Africa. He has, however, a home in England, consisting of a flat near Amersham in Buckinghamshire, which his wife has rented since 1985. Having been accepted by the revenue as a non-resident for tax purposes, Mr. Hahn does not stay in England for more than six months in any tax year; on average he is here for some three months in the year, although sometimes longer.
The respondents, Barclays Bank of Swaziland Ltd. claim that in 1982 Mr. Hahn executed a deed guaranteeing the banking account of a company called Swaziland Chemical Industries (Pty.) Ltd. That company went into liquidation in 1984 owing (it is said) some £12 million to the bank. The bank sought payment from Mr. Hahn and issued proceedings against him in South Africa. These proceedings were abandoned owing to difficulties of service. On 16 December 1986 the bank issued a writ against Mr. Hahn in this country for recovery of the money. In January 1987 leave was obtained to serve the writ out of the jurisdiction but it did not prove possible to effect service. The bank then sought to serve Mr. Hahn in England.
Ord. 10, r. 1, to which I will refer in detail later, enables a writ instead of being served personally, in certain circumstances to be served by inserting through the letter box of the defendant's usual or last known address a copy of the writ enclosed in a sealed envelope addressed to the defendant. On 14 April 1987 a person acting on behalf of the bank's solicitors attended at Mr. Hahn's home with an envelope containing a copy of the writ. The door was opened by Mr. Symonds, the caretaker, who said that Mr. Hahn was not there but might be arriving later in the day. The solicitors' representative then put the envelope containing the copy writ through the letter box and left. This occurred at about 15.30.
Mr. and Mrs. Hahn had left South Africa on 12 April en route for England and were due to arrive at Heathrow at about 17.30 on 14 April. Mr. Symonds and his wife had already prepared the flat for occupation by Mr. and Mrs. Hahn when the solicitors' representative called. Shortly thereafter Mr. Symonds drove to the airport to fetch Mr. and Mrs. Hahn. At the start of their journey home Mr. Symonds told Mr. Hahn that a man had called at the flat that afternoon and put through the letter box an envelope addressed to him, which Mr. Symonds stated he had not opened. On receiving this news, Mr. Hahn instructed Mr. Symonds to drive to the White Hart Hotel at Beaconsfield, where the car dropped Mr. Hahn. Mrs. Hahn continued on to the flat, where she was shown the envelope. She then returned to the White Hart at about 19.45, and both of them proceeded to the Holiday Inn near Heathrow for the night. Mr. Hahn left Heathrow the following day for Geneva, without having visited the flat then or at any later time in that year.
The terms of R.S.C. Ord. 10, r. 1 so far as material for present purposes, 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 letterbox 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 … 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 (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, the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee."
It is Mr. Hahn's claim that the writ was not duly served on him because on its true construction Ord. 10, r. l(2)( b) requires that the defendant shall be physically present within the jurisdiction at the time of service, and Mr. Hahn was outside the jurisdiction when the envelope was inserted through his letter box. Put shortly, it was argued on Mr. Hahn's behalf that the jurisdiction of the court to entertain an action in personam depended historically on the defendant being served personally with the King's writ. When the Rules of the Supreme Court were amended in 1979 to permit "letter box service," it was not intended to alter the...
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Olafsson v Gissurarson
...is to inform the defendant of the contents of the claim form and the nature of the claimant's case: see eg Barclays Bank Ltd v Hahn [1989] 2 All ER 398 per Lord Brightman at 402H and the definition of “service” in the Glossary to the CPR, which describes it as “steps required to bring docu......
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Alexandre Yakovlevich Tseitline v Leonid Victorovich Mikhelson and Others
...knowledge, prior dealings or from conduct at the time of or after service, including conduct in evading service: see Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506 at 512A. The burden and standard of proof 35 It is common ground that it is for Mr Tseitline to demonstrate a good arg......
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Gary Kenneth Morby v Gate Gourmet Luxembourg Iv Sarl and Another
...knowledge, prior dealings or from conduct at the time of or after service, including conduct in evading service: sec Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506 at 512A." 40 The only remaining question, therefore, is whether the document was left "with or near" the Appellant at t......
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Chellaram v Chellaram (No. 2)
...residence. That in turn depends on whether the effect of the decision of the House of Lords in Barclays Bank of Swaziland Ltd v. Hahn [1989] 1 WLR 506 (that under the RSC service by post within the jurisdiction was only permissible if the defendant was in England at the time the writ was s......