Collier v Williams
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GRAY |
| Judgment Date | 21 January 2005 |
| Neutral Citation | [2005] EWHC 200 (QB) |
| Docket Number | QB/2004/PTA/636 |
| Court | Queen's Bench Division |
| Date | 21 January 2005 |
[2005] EWHC 200 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Gray
QB/2004/PTA/636
ANDREW BUTLER (instructed by Fosters W1K) appeared on behalf of the APPELLANT/DEFENDANT
NICHOLAS YEO (instructed by Russell Cooke SW15) appeared on behalf of the RESPONDENT/CLAIMANT
This is an appeal by the defendant in the action against orders made by Master Eyre on 27 May and 30 September 2004. By those orders the Master allowed the claimants' application for an order ratifying service as already effected; alternatively, the Master extended time in which to serve the claim form and the particulars of claim. The Master dismissed the defendant's application for an order setting aside his earlier order of 27 May and striking out the claim form. He also dismissed the claimants' application for an order ratifying service on the defendant at 47 Hays Mews; alternatively, extending time in which to serve the claim form and particulars of claim.
The significance of the issue which arises on this appeal is that if the defendant is right in his contention that no valid service of the proceedings has taken place, then the claim of the claimants is statute barred.
It is necessary to say very little about the underlying facts of the case. In about 1998 the claimants were representatives of a stock broking company. The claimants maintain that between February and April 1998, the defendant, who at that time was working in Hong Kong, entered into, through the first claimant, a series of transactions with the stock broking firm, as a result of which he incurred debts to the stock brokers of about £44,000. The stock brokers went into liquidation in August 1998. The claimants purport to have taken in April 2003 an assignment from the liquidator of the defendant's debts.
The defence in the claim is broadly that such transactions as were authorised by the defendant have been paid for.
The present application is concerned solely with the service of proceedings on the defendant. As to that the history can be summarised as follows. The letter before action is dated 30 June 2003. It is addressed to 37 Hays Mews in London because, according to the evidence of the first claimant, the defendant had told him on his return from Hong Kong in 1998 that it was "his new address".
The first claimant and the defendant had a meeting at 47 Hays Mews in 1999. The evidence of the first claimant is that it appeared to him that number 47 was furnished like a residence as if someone lived there.
The letter before action was acknowledged by Jeffrey Green Russell ("JGR"). On 9 July 2003 that firm indicated that it was acting for the defendant. Further correspondence followed. Liability was denied on behalf of the defendant by JGR. On 27 April 2004 Russell Cooke, solicitors acting for the claimants, wrote to JGR stating, amongst other things, that a claim form had been issued on 28 January 2004. I quote from that letter:
"We trust that you will now take your client's instructions and revert with what we hope will be a more detailed and constructive response. Given the time available for us to serve the Claim Form with Particulars we would ask for a response within the next 7 days. Should we not hear from you within that time, we are instructed to settle and serve the claim without further notice. Please confirm within that time frame whether you are instructed to instruct service of the same failing which proceedings will be served directly on your client."
There was a response the following day in which JGR requested 14 days to respond to the claimants' solicitors' letter, such consent was given.
On 20 May the claimants' solicitors', Russell Cooke, wrote complaining of the defendant's failure to reply and informed JGR that proceedings were now being finalised.
JGR's reply to that letter stated:
"We had understood from your previous correspondence that you had already issued proceedings against our client and we fail to understand why you are being so coy about serving the proceedings."
Another letter was written by the claimants' solicitors on that same day, 24 May. It enclosed the claim form, the particulars of claim and a response pack. It was addressed to the defendant and was posted to 47 Hays Mews. The reason why that course was taken was that JGR had not stated that they were instructed to accept service.
A copy of that letter went to the solicitors JGR who replied on 26 May 2004 saying:
"Thank you for copying us into your letter of 24 May.
Our client has not resided at 47 Hays Mews for some months now. We don't know what the arrangements are for forwarding the post."
Russell C ooke's response to that letter was to say that they noted that the defendant no longer resided at 47 Hays Mews, adding that that being his last known residential address that is the address to which the claim form and particulars of claim were served. The letter further noted the failure of JGR to confirm that they had been instructed to accept service. It was contended that service had been properly effected.
What followed was the issue by the claimants of a notice of application, dated 27 May 2004, which sought an order
(1) that the claim form and particulars had been effectively served; alternatively,
(2) that the time for service of the same be extended by 21 days. That was supported by a witness statement from Miss Talbot of Russell Cooke, the claimants' solicitors.
That same day at a hearing attended by counsel for the claimants, but without any representative of the defendant being present, Master Eyre ordered that:
"(1) Receipt of the Claim Form and Particulars of Claim by [JGR] (confirmed in their letter of 26 May 2004) be deemed good service.
(2) Costs reserved."
That order was sent to JGR the following day, 28 May 2004.
The case for the defendant is that he happened to be in Italy at this time and did not see the claim form or the particulars of claim until his return to this country on about 1 June 2004.
The defendant instructed a different firm of solicitors, namely, Forsters, and they wrote to Russell Cooke on 15 June 2004 giving notice of their intention to apply to set aside the Master's order of 27 May. That application was duly issued on 17 June 2004.
The claimants countered by issuing another application, dated 29 June 2004, seeking orders:
"1. that service of the proceedings was properly effected by posting the same to the Defendant at 47 Hays Mews…that being his last known residence, in accordance with CPR 6.5, or, the Claimants be given an extension of time to re-serve the proceedings under CPR 7.6 (2)."
(I interpolate that would appear to be a wrong reference and the relevant sub-rule should, perhaps, have been sub-rule 3.)
"2. that service of these proceedings be dispensed with under CPR 6.9, or, 1. that the Claimants being out of time for an extension of time for service of these proceedings under CPR 7.6 (2), be given an extension to time to re-serve these proceedings under CPR 7.6 (3); and; 2. that service of these proceedings be dispensed with under CPR 6.9.
AND IN ANY EVENT
3. that the Defendant do pay the Claimants costs on an indemnity basis…"
Both the application of the defendant and the application of the claimants came before Master Eyre again on 16 July 2004 when, after a hearing which lasted half a day, it was adjourned part heard to 28 August 2004. The further hearing on that day lasted another half day. Judgment was reserved. The Master gave judgment on 30 September 2004. He made the order to which I have already referred at the outset of this judgment.
The defendant applied for permission to appeal. The Master refused such permission, but Burton J subsequently granted permission.
A number of questions arise in relation to service. Before coming to them it would be convenient if I set out the rules which appear to me to be relevant to this appeal. CPR 6.2 provides:
(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,
(e) by fax or other means of electronic communication in accordance with the relevant practice direction."
Rule 6. 4(1), (2) and (3) are in these terms:
"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 in 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 solicitors 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."
Rule 6.5 includes the following:
"(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 a place of service,
(c) by document exchange or,
(d) by fax for 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...
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