Collier v Williams
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 2006 |
| Neutral Citation | [2006] EWCA Civ 20 |
| Docket Number | Case No: B1/2005/1231, B1/2005/0226, B1/2005/0964, B1/2005/1248 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2006 |
[2006] EWCA Civ 20
Lord Justice Waller
Lord Justice Dyson and
Lord Justice Neuberger
Case No: B1/2005/1231, B1/2005/0226, B1/2005/0964, B1/2005/1248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) THE POOLE COUNTY COURT (Deputy District Judge Mathews)
(2) THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION (Gray J)
(3) THE HIGH COURT OF JUSTICE, QUEENS BENCH DIVISION, BRISTOL DISTRICT REGISTRY (His Honour Judge Darlow)
(4) THE MANCHESTER COUNTY COURT (His Honour Judge Tetlow)
Royal Courts of Justice
Strand, London, WC2A 2LL
(1) Mr. Christian Sweeney (instructed by Messrs Coles Miller) for the Appellant
Mr. Glyn Edwards (instructed by Messrs Lyons Davidson) for the Respondent
(2) Mr. Nik Yeo (instructed by Messrs Russell-Cooke) for the Appellant
Mr. Andrew Butler (instructed by Messrs Forsters) for the Respondent
(3) Mr. Christopher Sharp QC and Mr. John Livesey (instructed by Messrs John Hodge) for the Appellan
Mr. Michael de Navarro QC (instructed by Messrs Radcliffes Le Brasseur Bevan Brittan) for the Respondent
(4) Mr. Ronald Walker QC (instructed by Messrs Berrymans Lace Mawer) for the Appellant
Dr. K Naylor (instructed by Messrs Neil Millar & Co.) for the Respondent
Dyson LJ: this is the judgment of the court to which all its members have contributed.
We heard over three days six appeals which raised points on CPR Part 6 (the rule relating to service), and CPR Part 7.6 (the rule relating to the extending of time for service of the claim form). These rules have generated an inordinate amount of jurisprudence. This is greatly to be regretted. The CPR were intended to be simple and straightforward and not susceptible to frequent satellite litigation. In this area, that intention has not been fulfilled. As a result, the explicit aims of the Woolf reforms to reduce cost, complexity and delays in litigation have been frustrated. We understand that the Civil Procedure Rule Committee will shortly embark on a review of the rules relating to service. This is a welcome development. These appeals have revealed yet again that these rules are difficult to understand and apply. In this judgment, we deal with four of the appeals.
Collier v Williams (paras 41–49 below) is an appeal from District Judge Mathews, and was concerned with whether a claim form had been validly served on a firm of solicitors nominated by an insurance company for that purpose. The insurers argue that because the nominated solicitors did not themselves notify the serving solicitors that they were authorised to accept service, this service was invalid. This appeal raises issues as to the proper interpretation of CPR 6.4(2) and 6.5.
Marshall and Rankine v Maggs (paras 50–105 below) is an appeal from Gray J. The three points of principle arising are (i) the meaning of "solicitor is acting for the party to be served" in CPR 6.5(5) and (6) : if a solicitor is acting but does not confirm that he is authorised to accept service, are the methods of service contemplated by CPR 6.5(6) available to the claimant? (ii) the meaning of "last known residence" in the table of places for service in CPR 6.5(6) : in particular is the honest and reasonable belief that a defendant resided at an address sufficient if the defendant has in fact never resided at that address? (iii) the correct approach to extending time for service of the claim form under CPR 7.6(2) : was the guidance by this court in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206 being properly applied?
Leeson v Marsden and United Bristol Health Care NHS Trust (paras 106–134 below), is an appeal from a decision of His Honour Judge Darlow. By virtue of a respondent's notice an issue is raised which has significance well beyond CPR 6 or CPR 7.6. If a claimant has issued a "without notice" application, and the court then refuses it on paper, has the court jurisdiction to reconsider whether to make the order or is the proper course for the claimant to appeal the order? The second issue is whether, if the court has jurisdiction, the guidance given in Hashtroodi's case was properly applied.
Glass v Surrendran (paras 135–156 below), is an appeal from the decision of His Honour Judge Tetlow. It originally raised only the question whether the judge had exercised his discretion in accordance with Hashtroodi's case. However the appellant sought permission to amend his notice of appeal to raise the jurisdiction point referred to at para 4 above, it being a case where a "without notice" application had been refused on paper, but the district judge was prepared to reconsider the matter at a hearing requested by the claimant. The district judge then made an order allowing the application.
The three issues of the most general significance raised by these four appeals are (i) the proper construction of CPR 6.4(2) and 6.5, (ii) the question whether a court has jurisdiction to reconsider an application made without notice and on paper, and (iii) the question whether the guidance in Hashtroodi's case is being properly followed. As regards Hashtroodi's case, guidance on whether it is being properly applied is best considered by reference to particular facts of the cases in which the issue arises. We deal with this at paras 85–88, 131–133 and 149–155 below. But we propose to deal with the first two issues before we come to the facts of the appeals in which they arise.
CPR 6.4, 6.5(5) and (6)
One of the issues arising in Collier v Williams is whether the claim form was validly served on a firm of solicitors nominated by the defendant's insurance company to accept service in circumstances where the nominated solicitors did not notify the claimant's solicitors that they had been authorised to accept service. One of the issues arising in Marshall and Rankine v Maggs is whether the solicitors who were acting for the defendant in a general sense before proceedings were issued were "acting for the party to be served" within the meaning of CPR 6.5(6) for the purposes of service of the claim form if they had not given notification to the claimants' solicitor that they were authorised to accept service of the claim form. Since the resolution of both issues involves a detailed consideration of the rules for service contained in CPR 6, it is convenient to deal with these issues at the outset before we turn to the facts of the individual cases.
So far as material, CPR 6 provides as follows:
"Methods of service—general
6.2—(1) A document may be served by any of the following methods–
(a) personal service, in accordance with rule 6.4;
(b) first class post;
(c) leaving the document at a place specified in rule 6.5;
(d) through a document exchange in accordance with the relevant practice direction; or
(e) by fax or other means of electronic communication in accordance with the relevant practice direction.
(2) A company may be served by any method permitted under this Part as an alternative to the methods of service set out in–
(a) section 725 of the Companies Act 1985 (c.6) (service by leaving a document at or posting it to an authorised place) ;
(b) section 695 of that Act (service on overseas companies) ; and
(c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).
Personal service
6.4– (1) A document to be served may be served personally, except as provided in paragraph (2)
(2) Where a solicitor–
(a) is authorised to accept service on behalf of a party; and
(b) has notified the party serving the document in writing that he is so authorised,
a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.
(3) A document is served personally on an individual by leaving it with that individual.
(4) A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.
(5) A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with–
(a) a partner; or
(b) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
Address for service
6.5—(1) Except as provided by Section III of this Part ] (service out of the jurisdiction) a document must be served within the jurisdiction.
(2) A party must give an address for service within the jurisdiction.
(3) Where a party–
(a) does not give the business address of his solicitor as his address for service; and
(b) resides or carries on business within the jurisdiction,
he must give his residence or place of business as his address for service.
(4) Any document to be served–
(a) by first class post;
(b) by leaving it at the place of service;
(c) through a document exchange; or
(d) by fax or by other means of electronic communication,
must be sent or transmitted to, or left at, the address for service given by the party to be served.
(5) Where–
(a) a solicitor is acting for the party to be served; and
(b) the document to be served is not the claim form;
the party's address for service is the business address of his solicitor.
(Rule 6.13 specifies when the business address of a defendant's solicitor may be the defendant's address for service in relation to the claim form)
(6) Where–
(a) no solicitor is acting for the party to be served; and
(b) the party...
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