Bernstein v Jackson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN,LORD JUSTICE SLADE |
| Judgment Date | 19 March 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0319-2 |
| Docket Number | 82/0124 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 1982 |
[1982] EWCA Civ J0319-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, LEEDS DISTRICT REGISTRY
MR. JUSTICE LAWSON
Royal Courts of Justice
Lord Justice Dunn
Lord Justice Slade
82/0124
and
and
MR. G. LUMLEY (instructed by Messrs. Beachcroft, Hyman Isaacs, London Agents for Messrs. Emsley Collins & Co., Leeds) appeared on behalf of the Appellant.
MR. J. M. COLLINS (instructed by Messrs. Waterhouse & Co., London Agents for Messrs. Walker Morris & Coles, Leeds) appeared on behalf of the Respondents.
This is an interlocutory appeal by leave of this court from part of an order made by Mr. Justice Lawson in Chambers on 23rd November 1981 whereby he ordered that the first defendant, who is the appellant in this court, should be at liberty to defend the action upon condition that she file a memorandum of appearance or acknowledgement of service within fourteen days; and he dismissed an application by the first defendant that the action should be struck out for want of prosecution.
The facts of the case are exceedingly unusual, if not unique, and I take them from the judgment of the learned judge. On 13th May 1977 the plaintiffs, who are a firm of attornies resident in South Africa, obtained a judgment in South Africa in the sum of some 6,000 Rands against the first defendant, Mrs. Jackson, and her husband and son. Nothing was paid under that judgment, which was a default judgment in the sense that she did not appear and none of the defendants appeared, and in May 1977 execution was levied on the judgment.
The first defendant had a sum of some £3,000 on deposit with the Leeds Building Society and she gave the Society authority to transfer that sum of money to South Africa in part satisfaction of the judgment. In fact, the money was never transferred, it is said, because she took no step to obtain exchange control and, accordingly, the plaintiffs in South Africa proceeded with the execution, and certain goods and chattels of the first defendant and her family were seized and put up for auction. On 7th December 1977 the writ in these present proceedings was issued in this country, relying on the agreement to transfer the £3,000 from the Leeds Building Society to the plaintiffs in South Africa. The Building Society had been joined as second defendants in the proceedings and an injunction was sought against them and against the first defendant restraining them from paying out any sums standing to the credit of the first defendant with the Building Society so as to reduce the amount held below £3,000. On 20th December 1977 Mr. Justice Bush granted an interlocutory injunction effectively in those terms. The injunction recited an undertaking by the plaintiffs to prosecute the action with expedition.
At that time the first-defendant was still resident in South Africa and on 6th January 1978 the District Registrar gave the plaintiffs leave to serve notice of the writ out of the jurisdiction under the provisions of Order 11 of the Rules of the Supreme Court. It proved impossible to serve the writ out of the jurisdiction. We were told that early in 1978 the first defendant and her family returned in a slow boat to this country. In March 1978 there was some communication between the plaintiffs' solicitors and the solicitors for the Building Society, and on 29th March 1978 those latter solicitors wrote to the plaintiffs' solicitors saying that they had forwarded to the first defendant a letter from the plaintiffs' solicitors in effect giving her notice of the proceedings. By October 1978 the first defendant and her family were in the Leeds area and arrangements were made for her to attend at the offices of the solicitors for the second defendants for the purpose of accepting service of the writ; but, due to a misunderstanding, the solicitors for the plaintiffs were unable to attend the meeting and no service was effected.
On 6th December 1978 the time for service of the writ on the first defendant expired and there has never at any time been an application to renew the writ for service on the first defendant, although the second defendants entered an appearance on 12th December 1977.
The action then appears to have gone to sleep until the end of 1980 when the plaintiffs made an application to the District Registrar who, on 28th January 1981, made what the judge described as "a most unusual order". He gave the plaintiffs leave to serve notice of the writ on the first defendant by substituted service by serving a copy of the notice by first-class pre-paid letter post addressed to the second defendants, i.e., the Leeds Permanent Building Society. When he made that order the Registrar did not renew the writ, nor was there any application to renew the writ. However, the first defendant had, by that time, instructed solicitors. The writ or notice of the writ appears to have been served on them because, on 27th February 1981, they wrote to the plaintiffs' solicitors: "We have been instructed by Mrs. Jackson to defend the proceedings commenced by your clients and we will file a Memorandum of Appearance in due course." According to the learned judge, it was common ground that the first defendant in fact had the proceedings handed to her.
In spite of that, the first defendant took no step to acknowledge service or enter an appearance and, indeed, instructed her solicitors that she was not prepared to disclose her whereabouts to the plaintiffs; and, having given due notice by letter during April, on 22nd May 1981 the plaintiffs' solicitors signed judgment in default against the first defendant for damages to be assessed. On 13th July 1981 the first defendant issued her summons, firstly, applying to set aside the order for substituted service made on 28th January, and also the judgment of 22nd May. She also made application that the plaintiffs' action be dismissed for want of prosecution and those matters were adjourned to the judge; and he made the orders in the form that I have indicated.
The learned judge held that it was a "condition precedent of obtaining an order for substituted service, or an order for substituted service of notice of the Writ, that there must be a Writ valid for service." He also held that the writ in this action was not valid for service because it had not been renewed in accordance with the provisions of Order 6 Rule 8. But he went on to hold that that was an irregularity with which he had jurisdiction to deal under Order 2 Rule 1 of the Rules of the Supreme Court. Accordingly, as a matter of discretion he made the order which he did, namely that the first defendant should have liberty to defend the action on condition that she filed a memorandum of appearance or acknowledgement of service within 14 days. He took that course, as appears from his judgment, firstly because he was of the opinion that, to a substantial part of the claim, the first defendant had no defence and, secondly, because he was quite satisfied that "the First...
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