Carnegie v Drury
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Dyson |
| Judgment Date | 23 May 2007 |
| Neutral Citation | [2007] EWCA Civ 497 |
| Docket Number | Case No: A2/2006/2607 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2007 |
[2007] EWCA Civ 497
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE EADY
HQ06X0181
Lord Justice Dyson and
Lady Justice Smith
Case No: A2/2006/2607
Desmond Browne QC and Lorna Skinner (instructed by The BBC Litigation Department) for the Appellant
The Respondent appeared in person
Hearing date: 14 May 2007
This is an appeal by Mr Douglas Carnegie brought with the permission of Keene LJ against the decision of Eady J, who granted Mr Stephen Drury a substantial extension of time for service of the claim form and Particulars of Claim upon Mr Carnegie as second defendant in this libel action.
History
From 1999 onwards, Mr Stephen Drury was in business as a mediator and also offered mediation training to others. In 2003, the BBC broadcast a programme about Mr Drury and his company Nationwide Mediation Limited. Although he was not pleased with the content of this programme, Mr Drury did not take action. In April 2005, the BBC intended to broadcast another programme about Mr Drury's business in its Watchdog series, which deals with consumer affairs. The programme was critical of Mr Drury's practice; there is now no dispute that it was defamatory. Shortly before it was broadcast, Mr Drury attempted unsuccessfully to prevent the broadcast. The programme went out as planned on 12 th April 2005. Soon afterwards, the BBC posted a summary of the programme on its website. On 29 th April 2005, Mr Drury informed the BBC that he intended to take proceedings about the programme; he also complained about the website summary but the BBC, by its litigation department, refused to remove or alter the content.
In May, July and August 2005, there was correspondence between Mr Drury and the BBC in which Mr Drury sought to set up a 'without prejudice' meeting to discuss settlement of his claim. The BBC declined any such meeting, observing that it had not yet had particulars of the complaint.
There was no further contact between Mr Drury and the BBC until 5 th April 2006. On that day, Mr Drury sent a letter of claim to the BBC in order to comply with the requirements of the pre-action protocol. On 11 th April 2006, the day before the 12 month limitation period expired, Mr Drury sent a letter of claim to Mr Carnegie, who had been the editor of the Watchdog programme. It was addressed to him, care of his employers, the BBC. This letter was also said to be in compliance with the pre-action protocol.
On 12 th April 2006, Kirwans, solicitors acting for Mr Drury, issued a claim form. It named the BBC as first defendant, Mr Carnegie as second defendant and Mr Paul Moore, a freelance television journalist who had been responsible for producing the programme, as third defendant. A fee was paid and there is no dispute that the claim had been commenced in time. Pursuant to CPR Part 7.5(2), the claimant had four months in which to serve the claim form on the defendants. That period was to expire on 12 th August 2006. However, as 12 th August was a Saturday, for practical purposes the last day for service was 11 th August. If service were to be effected by fax transmission it had to be done by 4pm that day.
After the letters to the defendants dated 5 th and 11 th April, to which I have just referred, there was no communication between the claimant or his solicitors and any of the defendants until 2 nd August. On that day, Kirwans wrote to the BBC asserting that the BBC had transmitted libellous allegations and inviting it to put forward its proposals for settlement not later than 9 th August. This letter was not copied or addressed to Mr Carnegie or Mr Moore.
On Friday 11 th August, the Particulars of Claim, which had been drafted by counsel, were verified by the claimant. At 12.40 pm, Kirwans faxed a letter to the BBC informing it that the claimant intended to serve proceedings on the second defendant, care of the BBC, but went on to ask, in the event that the BBC did not have instructions to accept service on his behalf, that the BBC should provide Mr Carnegie's last known residential address. It is accepted that, until that letter was written, the claimant had not made any attempt to serve Mr Carnegie or to find out how he might do so.
At 2.46pm that day, the BBC replied saying that it had no instructions to accept service on behalf of Mr Carnegie or authority to provide his residential address. It appears that Mr Carnegie was away on holiday and would not be back at his desk until 29 th August.
At 3.50pm, that is ten minutes before the time to do so within the rules expired, Kirwans faxed several documents to Miss Isobel Griffiths of the BBC's Litigation Department. The documents comprised a letter, a single copy of the claim form and a single copy of the Particulars of Claim. The letter stated that the documents were attached 'by way of service on the BBC, Douglas Carnegie and Paul Moore'. Hard copies would follow. It continued:
“We confirm that we have no alternative but to serve on both the second and third defendant via yourselves. In the absence of your cooperation to provide their last known residential address and therefore at this late stage we are serving the Claim at their last known place of work”
That service was effective only in respect of the BBC. The claim against it is up and running. The BBC has served a defence, admitting that the programme contained defamatory material but pleading, with full particulars, the defence of justification. The BBC has also accepted vicarious liability for the actions of Mr Carnegie.
Also, on 11 th August, Kirwans posted hard copies of the claim form and Particulars of Claim to the BBC, with copies for Mr Carnegie. The BBC received these documents on Monday 14 th August. That day it informed Kirwans by fax that it would be returning the papers sent for Mr Carnegie as it did not have authority to accept them, as previously explained. The papers were returned to Kirwans on 17 th August.
On 23 rd August, two application notices were prepared by Ms Michelle Stewart the solicitor at Kirwans who had immediate responsibility for this case. The first sought a retrospective extension of time for service; the second sought an order authorising service on the second defendant at his place of work. Miss Stewart's witness statement in support described the attempt at service made on 11 th August; no other attempt was alleged. Her explanation for the delay in making this attempt was that Mr Drury had not given Kirwans instructions until a late stage due to his financial constraints and his hope that the matter would be settled.
Although drafted on 23 rd August, these applications were not lodged at the Court for issue. There is some confusion as to when the first attempt to issue the application was made. The written evidence before the judge suggests that it was made quite soon after the papers had been drafted but that, on that first occasion, the application was not issued because the claimant had not attached the correct fee. Mr Drury was later to tell us that this was not correct; he had not attempted to issue the application until some time after 5 th October. Be that as it may, it is clear from the documents that, in September, Kirwans wrote to the BBC asking again if they had instructions to accept service on behalf of Mr Carnegie. They replied that they did not. Kirwans wrote again, this time asking for Mr Carnegie's private address; the BBC wrote to say that they could not assist without a court order.
On 5 th October, Mr Drury spoke to Mr Carnegie on the telephone and, later in the day, set out his version of the conversation in an email. It appears that Mr Drury accused Mr Carnegie of being uncooperative, alleging, in particular, that he had refused to telephone him in response to voicemail messages. It appears that, among other things, Mr Carnegie said that he had only just returned from holiday. Mr Drury alleged that, when he had pointed out that the message on Mr Carnegie's voicemail had said that he would be back at work on 28 th August, Mr Carnegie had put the telephone down. Mr Carnegie's explanation for that is that he had been away on holiday until 28 th August and had then returned to work but had taken an additional one week holiday ending just before 5 th October.
It appears that, on some unidentified occasions after 5 th October, Mr Drury attempted to issue the application to extend time for service. Neither he nor a solicitor acting on his behalf has ever set out a coherent account of when these attempts were made and why they failed. On Mr Drury's oral account to us, it was at this stage that his first attempt was made and failed due to the problem of the court fee. However, he also told us that his second and third attempts were rejected by court staff, due to the problems connected with the service of the documents. In due course, said Mr Drury, he had an appointment with Master Leslie, who was very helpful and the applications were eventually issued on 6 th November 2006. That was nearly 3 months after the time for service had expired. Although, as I have said, Mr Drury has not provided a clear explanation of the difficulties that arose over the issue of the applications, it appears to me that the problem may have arisen because Miss Stewart had stated on the application form that 'the defendants' were to be served with the applications. That was not necessary; these applications could have been made without notice...
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