Deverall v Grant Advertising Inc.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 25 October 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J1025-2 |
| Court | Court of Appeal |
| Date | 25 October 1954 |
[1954] EWCA Civ J1025-2
In the Supreme Court of Judicature,
Court of Appeal.
(Interlocutory List.)
Lord Justice Jenkins,
Lord Justice Hodson, and
Lord Justice Romer.
Counsel for the Appellants: MR J. HOBSON, instructed by Messrs Waterhouse & Co.
Counsel for the Respondent: MR N. WIGGINS, instructed by Messrs Parker Sloan & Pinsent.
This is an appeal by the Defendants, Grant Advertising, Incorporated, a company incorporated under the laws of the State of Texas in the United States of America, and resident in that country, from an Order of Mr Justice Vaisey dated the 30th June, 1954, refusing an Application by the Defendants to set aside the service upon them of the Writ in an action brought against them by one Peter Edmund Deverall.
The Defendant Corporation, which I may for convenience call the American Company, carries on the business of practitioners in advertising, and carries on that business not only in the United States of America, but elsewhere, by means of a large number of subsidiary companies incorporated under the appropriate local laws or unincorporated branches in many parts of the world. Their subsidiaries include a company called Grant Advertising, Ltd., an English Company which carries on business here, and which has a place of business, or office, at 36, Grosvenor Street, London, W.l.
The relief claimed by the Writ in question concerns the amounts due, or alleged to be due, to the Plaintiff, Peter Edmund Deverall, under an agreement dated the 1st February, 1953, whereby, for the consideration therein mentioned, he agreed to resign the office he had theretofore held for a matter of six or seven months of Regional Birector of the Defendants in the Sterling Area, and also the offices which he had concurrently held of Director and Chairman of Directors of the Eglish Company.
The service of the Writ relied on by the Plaintiff consisted of leaving a copy of it at No. 36, Grosvenor Street, and that mode of service is sought to be Justified, and was successfully justified before the learned Judge, on the ground that 36, Grosvenor Street was, on the facts of the case, a place of business established by theAmerican Company in Great Britain within the provisions regarding overseas companies contained in Part X of the Companies Act, 1948, and in particular Section 412 of that Act. Admittedly, if the service relied on could not be justified by reference to Section 412 of the Act, it must have been bad service.
I should at this point refer briefly to the questions in Part X of the Act dealing with service. Section 406 is in the following terms: "The next eight following sections shall apply to all overseas companies, that is to say, companies incorporated outside Great Britain which, after the commencement of this Act, establish a place of business within Great Britain, and companies incorporated outside Great Britain which have, before the commencement of this Act, established a place of business within Great Britain and continue to leave an established place of business within Great Britain at the commencement of this Act."
Section 407 requires overseas companies to deliver to the Registrar of Companies for registration certain documents and particulars, the relevant one being: "the names and addresses of some one or more persons resident in Great Britain authorised to accept on behalf of the company service of process and any notices required to be served on the company."
The next relevant section is Section 412, which provides: "Any process or notice required to be served on an overseas company shall be sufficiently served if addressed to any person whose name has been delivered to the registrar under the foregoing provisions of this Part of this Act and left at or sent by post to the address which has been so delivered: Provided that— (a) where any such company makes default in delivering to the registrar the name and address of a person resident in Great Britain who is authorised to accept on behalf of the company service of process or notices;or (b) if at any time all the persons whose names and addresses have been so delivered are dead or have ceased so to reside, or refuse to accept service on behalf of the company, or for any reason cannot be served; a document may be served on the company by leaving it at or sending it by post to any place of business established by the company in Great Britain."
Section 414 makes it an offence for an overseas company not to comply, inter alia, with the provisions of Section 407: "If any overseas company fails to comply with any of the foregoing provisions of this Part of this Act the company, and every officer or agent of the company who knowingly and wilfully authorises or permits the default, shall be liable to a fine not exceeding fifty pounds, or, in the case of a continuing offence, five pounds for every day during which the default continues."
The American Company did not comply with the provisions of Section 407 for the simple reason that, whether they were right or wrong, in never occurred to them that they had established a place of business in Great Britain. Accordingly, if they had established such a place of business, the appropriate mode of service was that indicated by Section 412; that is to say, leaving the document in question at or sending it by post to any place of business established by the Company in Great Britain.
In these circumstances, two questions have been argued both before the learned Judge and before us. The first question is whether the Defendants had at any time established a place of business in Great Britain, the place suggested, if there was one, where the Defendants had so established a place of business being 36, Grosvenor Street.
The second question arises in this way: Admittedly, the allegation that the Defendants had established a place of business at 36, Grosvenor Street depends entirely on theduties assigned to the Plaintiff as Director of the Defendants for the Sterling Area, and the activities he pursued as the holder of that office at No. 36, Grosvenor Street. As I have already mentioned, he resigned that office on the 1st February, 1953. Thereafter, admittedly, nothing was going on at No. 36, Grosvenor Street, and there were no physical indications at that address, on the strength of which it could be claimed that it was a place of business established by the Defendants.
The second question, therefore, is whether, even if the Plaintiff were to succeed in showing that the Defendants had at any time established a place of business at 36, Grosvenor Street, the service relied on could be good inasmuch as, admittedly, 36, Grosvenor Street had ceased to be a place of business established by the Defendants before the date upon which the Writ was served.
I will deal with those questions in the order in which I have stated them. Had the Defendants at any time established a place of business in Great Britain? As I have stated, the allegation that they have done so depends entirely on the Plaintiff's duties and operations as Regional Direct of of the Defendants for the Sterling Area. So far as the premises, 36, Grosvenor Street, themselves are concerned, there was never any visible sign or physical indication whatsoever that those premises were a place of business of the Defendant Company. I understand the premises to have been held by a Mr Grant, the President of the Defendant Company, and let by him, the effect of the various lettings or sub-lettings being that parts of the building were let to persons or firms who have nothing whatever to do with either company, and the remainder was occupied by the English Company itself for the purposes of the English Company's business. So far, then, there is nothing to suggestthat this was a place of business of the Defendants. It was the place of business of the English Company and nothing else, and it is not suggested that the English Company was carrying on anything other than its own business. But the Plaintiff claims that his presence upon the premises, and his activities as Regional Director for the Sterling Area, did have the effect of establishing a place of business of the Defendants in Great Britain; and it is a somewhat unusual feature of this case that the question depends on the activities of the Plaintiff himself.
As I have said, the American Company had many subsidiaries and branches. Those in the Sterling Area, of which the Plaintiff was appointed Regional Director, comprised, or included, the English Company, a South African limited company, and unincorporated branches in India, Hong Kong and Pakistan. It appears that the Plaintiff was appointed to this office of Regional Director in, I think, June of 1952, and he held such office until the 1st February, 1953, when, as I have said, he resigned. During that period he was absent from this country for a month or five weeks touring in the region for which he had been made Director.
In order to arrive at a conclusion on this first question, it is necessary to refer to some of the evidence as to the nature of the Plaintiff's office as Regional Director, the duties it entailed and what, if anything, he did while holding the appointment. It appears that he was transferred to London from the post of Regional Manager of India and Pakistan, and he took up the combined offices of Chairman and Director of the English Company and Regional Director of the American Company at the same time.
His own evidence on the point is this. He says in Paragraph 3 of his Affidavit sworn on the 18th March, 1954: "The Defendants' business for the Sterling Area ofwhich I was Regional Director was at all material times carried on by me and controlled from 36 Grosvenor Street aforesaid."
That statement was described by the learned Judge, according to the...
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