Forward v West Sussex County Council

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS
Judgment Date30 June 1995
Judgment citation (vLex)[1995] EWCA Civ J0630-3
CourtCourt of Appeal (Civil Division)
Docket NumberQBENI/94/0615/E
Date30 June 1995
Keith Anthony Forward
Plaintiff
and
West Sussex County Council & ORS
Defendants

[1995] EWCA Civ J0630-3

(Mr. Justice Tuckey) Appeal

Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Rose Lord Justice Hobhouse

QBENI/94/0615/E

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT,

QUEEN'S BENCH DIVISION

CHICHESTER DISTRICT REGISTRY

MR. R EASTMAN (Instructed by Messrs. Taylor Joynson Garrett, DX 41) appeared on behalf of the Fourth Defendant

MR. C TAYLOR (Instructed by Messrs. Neville-Jones, DX 31206) appeared on behalf of the Plaintiff

1

Friday 30 June 1995

THE MASTER OF THE ROLLS
2

THE MASTER OF THE ROLLSThis is an appeal against a decision of Tuckey J made on 28 February 1994. The appeal is brought with the leave of Roch LJ. Before the judge there were two issues. Only one of those remains live on appeal. That issue is whether the plaintiff's proceedings were duly served upon the fourth defendant in the action, Nicholas Phillip Hendricks. The judge held that the proceedings had been served. The fourth defendant appeals against that decision.

3

On 22 March 1985 there was a collision between two vehicles in Glasshouse Lane, Petworth, West Sussex. The plaintiff was a passenger in the first of these vehicles, which was driven by the second defendant in the action in the course of his duties as a servant of the first defendant. The second vehicle was driven by the fourth defendant in the course of his duties as a servant of the third defendant. The police attended at the scene of the accident and took details in the usual way. The fourth defendant gave his address as 3, Bignor Park Cottages, Bignor Park, Pulborough, Sussex. This was a cottage on the Bignor Park Estate owned by Viscount Mersey.

4

On 15 March 1988, just a week before expiry of the three year limitation period, the plaintiff issued a writ naming all four defendants. Under the rules as they then stood, he had one year in which to serve the writ. As the year was drawing to a close, on 10 February 1989, the plaintiff served the fourth defendant by post. Relying on RSC Order 10 rule 1(2) (a), his solicitors sent the writ to the fourth defendant by ordinary first-class post at 3, Bignor Park Cottages which they regarded as his "last known address". The letter enclosing the writ was not returned to the plaintiff's solicitors undelivered. But nor did they receive any acknowledgement of service. This is not as surprising as it might seem, for two reasons.

5

The first reason is that the writ was sent under cover of a letter of 10 February 1989, addressed to the fourth defendant, in which the plaintiff's solicitors wrote:

"We would mention that the service of the writ upon you at this stage is merely a formality as we intend pursuing the claim against the insurers to the county council [the first defendant] and the Kenning Motor Group [the third defendant]".

6

The solicitors did, however, describe it as necessary for the fourth defendant to complete and return to the court the form of acknowledgement of service, and they suggested that he complete it by indicating an intention to defend. The solicitors went on to say that the writ which they had issued did not include a statement of claim so that the fourth defendant was not required to become involved in filing a defence at that stage.

7

The second reason is that the plaintiff's solicitors had up to then pursued their claim against the third and fourth defendants through the insurers of the first defendant. Not long after the accident, on 8th August 1985, the plaintiff's solicitors had given notice of claim against the third defendant. The third defendant replied that it had passed the communication to its insurers the General Accident. The General Accident had written to the plaintiff's solicitors on 7 October 1985 saying: "We confirm that liability will not be in dispute so far as your

8

client is concerned". In reply to a further letter about a year later, the General Accident had written to the plaintiff's solicitors telling them that they had passed a letter from the solicitors to the Municipal Mutual, who were negotiating the claim. The Municipal Mutual was the insurer of the first defendant. In response to this invitation, the plaintiff's solicitors had dealt with the Municipal Mutual. On 7 April 1988 the plaintiff's solicitors had written to the General Accident to inform that insurer that a writ had been issued and to ask for the name of a solicitor who would accept service. The plaintiff's solicitors also sought confirmation that time for service of a full statement of claim could be extended until 21 days' notice had been given by the insurer's solicitors. The General Accident had replied saying that they had an agreement with Municipal Mutual for dealing with the plaintiff's claim, questioning whether it was necessary for the third defendant to be involved in proceedings. On 11 May 1988 solicitors instructed for the first defendant had written to the plaintiff's solicitors indicating that they would grant a general extension of time for service of the statement of claim subject to 21 days' notice. In the circumstances the plaintiff's solicitors were not very much concerned about a response from the fourth defendant, since they conceived themselves to be dealing with the first defendant and its insurers and solicitors, whom they understood to be dealing with the claim on behalf of all four defendants.

9

The period of one year allowed for service expired without proceedings having been served on the third defendant and no application for extension of time has ever been made so far as the third defendant is concerned. The result is that, whatever the outcome of this appeal, the plaintiff's claim against the third defendant is dead.

10

On (we are told, although the document itself is undated) 30 July 1993, an acknowledgement of service was completed by solicitors acting for the fourth defendant, presumably at the instance of the insurers of the third defendant. On 3 August 1993, those solicitors applied pursuant to Order 12 rule 8 of the Rules of the Supreme Court for an order that service of the writ on the fourth defendant should be set aside. This application was based on Order 12 rule 8 (1)(a). It has been pointed out that the application should have been made under Order 12 rule 8 (1) (b), for an order declaring that the writ had not been duly served on the fourth defendant. This point is correct, and we have given leave to amend the summons accordingly.

11

The application came before Deputy District Judge Stanton on 14 January 1994 when he held (so far as relevant) that the writ had been effectively served on the fourth defendant on 10 February 1989.

12

There were before the deputy district judge on that occasion four affidavits, three sworn on behalf of the fourth defendant and one on behalf of the plaintiff. The plaintiff's solicitors' affidavit acknowledged that service had not been effected on the third defendant but outlined the history of the proceedings and contended that service had been duly effected on the fourth defendant by sending him a copy of the writ by ordinary first—class post to his last known address as permitted by Order 10 rule 1 (2)(a). The affidavit sworn on behalf of the fourth defendant (again at the instance of the third defendant's insurers, because the fourth defendant was not personally involved at all) contended that he had never been served with the proceedings. The third and fourth defendants' solicitors had been unable to contact the fourth defendant despite considerable efforts to do so. He was no longer living at 3, Bignor Park Cottages. He could not be found there. He had not been known at the address over the immediately preceding few years. The third and fourth defendants' solicitors had instructed enquiry agents, who deposed that they had checked public records in respect of the electoral roll records held in relation to 3, Bignor Park Cottages, which showed occupiers named Hendricks up to and including the year 1985/86, but occupiers named Hutchins in the year 1990/91 and an occupier named Dahal in the year 1992/3. The records disclosed a gap between 1986 and 1990. A check of the public records had disclosed no forwarding address for the Hendricks family. The third and fourth defendants' solicitors deposed that when the fourth defendant had left the employment of the third defendant on 3 May 1985 he had had an address at 3, Bignor Park Cottages. The company had no other information. The enquiry agents had approached all recorded persons named Hendricks in the Worthing, Haywards Heath, Hove and Brighton areas but without tracing the fourth defendant. The Department of Social Security had declined to assist in attempts to trace him.

13

The third and fourth defendants' solicitors appealed against the ruling of the deputy district judge that the fourth defendant had been effectively served. For the purposes of the appeal the solicitors swore a further affidavit. In this an account was given of a search of the electoral roll in Sussex, of a credit check against the fourth defendant, of a BT subscriber search, of enquiries of the third defendant, of enquiries made to the Post Office, of enquiries to the Horsham District Council and of enquiries to the Weymouth District Land...

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