Cooper v Scott-Farnell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE PHILLIMORE |
| Judgment Date | 20 November 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1120-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 1968 |
[1968] EWCA Civ J1120-3
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Judge Gage Harlow County Court 18th July, 1968.
Revised
Lord Justice Willmer
Lord Justice Edmund Davies and
Lord Justice Phillimore
MR RAYMOND KIDWELL, Q.C. and MR DAVID VAUGHAN (for MR NICHOLAS LYELL), instructed by Messrs. Stevensons, appeared on behalf of the Appellant (Defendant).
MR GEORGE BEAN, Q.C. and MR NICHOLAS HANNAH, instructed by Messrs. Trotter, Chapman & Whisker, appeared on behalf of the Respondent (Plaintiff).
In this case the nominal parties are Mr Cooper and Mr Scott-Farnell, but in fact the real dispute is between two insurance companies, who are quarrelling about the expenditure of a few pounds incurred in the process of obtaining and setting aside a default judgment in the county court. The appeal is by the defendant, who appeals with leave against an order made by His Honour Judge Gage at Harlow County Court on the 18th July 1968 setting aside a previous judgment of the 23rd May 1968 which had been given in favour of the plaintiff in default of appearance by the defendant.
The appeal is not against the setting aside of the previous judgment, it being conceded that it was properly set aside. The appeal is directed to the terms imposed. The learned judge ordered that the costs thrown away on the first trial and the costs of theapplication to set aside the judgment should be coats in the cause. The defendant, however, says that his absence from the hearing of the action was due to no fault on his part, and contends that in the circumstances he was entitled to ask for the previous judgment to be set aside, not as a matter of discretion, but ex debito justitiae. Therefore, it has been contended on his behalf, there should have been no order for costs, and the defendant ought not to be put in peril of even a contingent liability to pay costs.
The action arose out of a road accident when the plaintiff's and defendant's cars were in collision. The plaintiff claimed £77.17s. in respect of the damage done to his car. Both parties, as I have already said, were insured, and the usual correspondence ensued between the insurance companies in an effort to settle the claim. The defendant's insurers offered to settle on a fifty/fifty basis, and by a letter which they wrote on the 19th March 1968 intimated that, if this offer was not acceptable, the plaintiff should institute his proceedings direct against the defendant. On the same day the defendant's insurers wrote to the brokers by whom they were instructed asking them to advise the defendant that any communication that he might receive should be forwarded to them, the insurers. We were informed, however, though it does not appear on the documents before us, that the brokers in fact failed to inform the defendant of this, so that he remained in ignorance of what was going on.
The plaintiff in due course issued his summons on the 24th April 1968. His solicitors then proceeded to take advantage of the procedure for service set out in Order 8, rule 8, sub-rule of the County Court Rules to have the summons served by post, I must read that rule, but I think that before reading sub-rule (2) I should first read sub-rule (1): "Subject to the provisions of any Act and the following paragraphs of this Rule, and Rules 11 to 26 and Rule 30 of this Order, service of an ordinary summons shall be effected (a) by delivering the summons to the defendant personally; or (b) by a bailiff of the court delivering the summons to some person apparently not less than sixteen years old, at the residenceof the defendant or, where the defendant is the proprietor of a business, at his place of business". Then I come to sub-rule (2). which is the one in question here: "Where the plaintiff or hla solicitor gives a certificate for postal service in Form 6, the summons shall, unless the registrar otherwise directs, be served by an officer of the court sending it by ordinary post to the defendant named in the certificate at the address stated in the praeolpe". Whilst the page is open before me, I think it is useful to go on and read sub-rules (3) and (4), which are relevant to certain parts of the argument which has been addreaeed to us. Sub-rule (3) provides an alternative procedure and says: "Where the certificate is not given but the reglatrar for the district in which the summona is to be served is satisfied by a report of the bailiff or otherwise that there is a reasonable probability that the summons, if sent to the defendant by ordinary post, will come to his knowledge in sufficient time for him to appear at the hearing, the said registrar may cause the summona to be served by an officer of tha court sending it to the defendant by ordinary post". Sub-rule (4) says: "Service shall be effected not leas than fourteen clear days before the return-day"; that is subject to a proviso which I do not think I need read.
In order to comply with the provisions of sub-rule (2), the plaintiff's solicitors duly completed Form 6. That is a regular county court form, and the actual certificate signed by the solicitors is conveniently included in the documents before us at page 22. It is in these terms: "I hereby request that the defendant" (then named) "be served with the summona in this action by post, and I hereby certify that (a) I have reason to believe that the summons, if sent to the said defendant at the address stated in the praecipe, will come to his knowledge within seven days after the day on which the summona would be delivered in the ordinary course of post. (b) I underhand that if judgment is obtained as a result of postal service and is afterwards set aside on the ground that the service did not give the said defendant adequate notice of the proceedings, I may be ordered to pay the costs of setting aside theJudgment". That was prepared and signed by the plaintiff's solicitors on the 17th April.
Reliance is naturally placed on behalf of the defendant upon the warning contained in the form against the risk of the plaintiff having to pay the costs of setting aside the Judgment, if that becomes necessary. The summons was duly sent by post to the defendant's address, and we know that it was in fact delivered at the defendant's address. Unhappily, however, the defendant had on the 31st March gone away for a prolonged holiday abroad, from which he did not raturn until the 2nd June. He had gone abroad without making any arrangements for his letters to be forwarded or otherwise dealt with on his behalf. The result was that when he came home on the 2nd June, he found the summons waiting in his letter-box, and that was the first that he knew about the plaintiff's action. By that time, of course, the trial had already taken place and judgment had already been pronounced against him in his absence. Those were the circumstances in which the application was made by the defendant to set aside the judgment, and it is that which led to the order now appealed from.
The argument for the defendant in a sentence has been that there can be no service on a defendant unless the document initiating the proceedings actually comes to the Knowledge of the defendant personally, whether by delivery to him personally or otherwise. Here of course the document did not come to the knowledge of the defendant until after the case was all over.
The plaintiff, on the other hand, says that service was duly effected within the provisions of the rule to which I have refferred, and in interpreting that rule reliance has been placed on his behalf on section 26 of the Interpretation Act, 1889. That section provides: "Where an Act passed after the commencement of this Act authorises or requires any document to be served by post whether the expression 'served' or the expression 'give' or any other expression is used, then unless the contrary intention appears, service shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the document, and unless thecontrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post".
It will be seen that this section provides, in the case of postal service, (1) how the service is deemed to be effected, and (2) when it is deemed to be effected it is contended that, in relation to the procedure under consideration here, no contrary intention appears in the rule. It was proved that a letter enclosing the summons was properly addressed to the defendant at his residence that it was duly pre-paid and posted. Therefore, it is said, that must be deemed to amount to service on the defendant, notwithstanding that he did not himself personally receive the document until some weeks later. Moreover, in the absence of proof to the contrary (and there was no proof to the contrary), the service must be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.
The plaintiff does not dispute that the prior judgment which he obtained by default was properly set aside by the learned judge, but he contends that this was done, and could only be done, in the exercise of the court's discretion under Order 37 of the County Court Rules, to which I must refer presently in a little greater detail.
In support of the defendant's argument that there can be no service unless the defendant actually recives and has knowledge of the summons, reliance was placed in the first instance on the case of, In re a Debtor. ( 1939 Chancery Division 251) where the handing of a bankruptcy notice to the debtor in a sealed envelope was held not to be good service, the reason being that, as it was in a sealed envelope, the debtor could have no knowledge of what was contained therein. That, of...
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