Kenneth Allison Ltd and Others v A E Limehouse & Company
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL,LORD JUSTICE FARQUHARSON |
| Judgment Date | 14 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0514-2 |
| Docket Number | 90/0420 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1990 |
[1990] EWCA Civ J0514-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
KING'S LYNN DISTRICT REGISTRY
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Russell
Lord Justice Farquharson
90/0420
MR. CHRISTOPHER FLETCHER (instructed by Messrs. Ben Pearson G. J. Starling & Co., King's Lynn, Norfolk) appeared for the Appellants (Plaintiffs).
MR. DOMINIC DOWLEY (instructed by Messrs. Pinsent & Co.) appeared for the Respondents (Defendants).
Mr. Hall is a partner in the defendant firm of chartered accountants. Mrs. Morgan is the senior partner's personal assistant. On 4th October 1988 Mrs. Morgan was asked by the firm's receptionist to go to the reception desk. There she met Mr. Swan, a process server, who told her that he wished to serve a writ. Very properly, Mrs. Morgan told him that she would have to consult someone of greater seniority and she in fact left him and explained the position to Mr. Hall. Mr. Hall told Mrs. Morgan that she could accept the writ. Upon her return to the reception area, Mrs. Morgan told Mr. Swan that she had been authorised to accept the writ and he thereupon handed her a sealed copy and an acknowledgment of service form. The writ claimed damages from A. E. Limehouse & Co. in the firm name alleging negligence in or in connection with an audit in or about 1981. Since the validity of the writ had never been extended and it had been issued on 5th October 1987, service was being effected at truly the eleventh hour.
The facts as I have related them are not in dispute, but it is clear that a few days later someone, be it the partners, their solicitors or their insurers, had second thoughts, for on 17th October a summons was issued by the firm claiming an order setting aside this service. That application was dismissed by the District Registrar, but granted on appeal by McCullough J. The plaintiffs now appeal.
The point is a very short one, but nevertheless of general importance. The rules of the Supreme Court make elaborate provision as to service of proceedings in Order 10, in Order 65 and, in relation to partnerships, in Order 81. It is common ground that what happened in this case was not in accord with the rules and I would accept that, within their scope, the rules must be complied with. The real issue is what is the scope of the relevant rules and, in particular, whether it necessarily extends beyond defining the circumstances in which, notwithstanding objection by the defendant, service can be effected without resort to the court for an order for substituted service under Order 65 Rule 4, for service on the agent of an oversea principal under Order 10 Rule 2 or for service on the land itself under Order 10 Rule 4.
Order 10 Rule 1(1) provides that "a writ must be served personally on each defendant by the plaintiff or his agent". This does not necessarily call for co-operation from the defendant since it can be served by leaving the copy of the writ with him (see Annual Practice note 65/2/1). Furthermore, it has to be read subject to the alternative procedure of service by post under Rule 1(2) and, in the case of a partnership, service at the principal place of business of the partnership on a person having at the time of service the control or management of the partnership business there in accordance with Order 81 Rule 3. From this I deduce that there is no magic about personal service which, in any event, requires modification in the context of bodies corporate (see Order 65 Rule 3). Order 10 Rule 1(1) has also to be read in the context of Order 10 Rule 3 and Order 10 Rule 1(4).
Order 10 Rule 3 is concerned with a case in which the parties to a contract have included a provision prescribing the mode of service of proceedings in the event of a dispute arising under that contract. Service in the manner agreed will then constitute good service, notwithstanding any objection by the defendant. Order 10 Rule 1(4) provides that service on the defendant's solicitor will be effective if the solicitor endorses on the writ a statement that he accepts service on behalf of the defendant. In such a case it matters not whether the solicitor was in fact authorised to accept service or whether the defendant was unwilling that he should do so.
Clearly all these provisions are necessary if the defendant is unwilling in the event to accept service, but I really do not see why they are needed if he is willing to do so and a fortiori why they should be intended to prevent his giving effect to that willingness in any way which appeals to him. The sole purpose of service of proceedings is to bring them to the attention of the defendant, to give him an opportunity to respond and to fix a time by reference to which time limits can be applied either under the Limitation Acts or in the conduct of the litigation. This purpose is equally well served by a consensual service of proceedings as by service in one of the modes described in the rules.
The courts have been here before. In Montgomery, Jones & Co. v. Liebenthal & Co. [1898] 1 Q.B. 487 the parties had agreed as part of a contract for the sale of a cargo of wheat that service of proceedings upon any party residing or carrying on business in Scotland could be effected by leaving the necessary documents at the London office of the London Corn Trade Association. Service in accordance with this agreement was held to be effective. At page 493 of the report Chitty L.J. said:-
"There remains the question, which is the main question in the case, whether the agreement as to the service is a valid agreement or not. The argument is that the service was not effected according to the rules, and is therefore void. In my opinion the distinction pointed out between this case and the case of the British Wagon Co. v. Gray [1896] 1 Q.B. 35) is a sound one. In that case the Court was dealing with Order XI, which, as has been said, contains a complete code governing service out of the jurisdiction. The Court can only allow service out of the jurisdiction in the cases there specified, and rule 1(e) of that order shews at once that the Court has no jurisdiction, in the case of a contract to be performed within the jurisdiction, to allow service out of the jurisdiction on a person who is domiciled or ordinarily resident in Scotland or Ireland. So that the Court there had to deal with an express prohibition as to service out of the jurisdiction. There is no such provision applicable to this case. I do not propose to travel through the rules. I can find no rule which prohibits a person from agreeing as to the mode in which service may be effected on him, as, for instance, by the writ being left with his wife or with some other person. If the contention of the defendants is correct, a person who is ill cannot make a request that the plaintiff should hand the writ to his wife, but must endure the inconvenience of being served personally, otherwise the service will be bad as being in contravention of the rules. I cannot find that in any of the rules. This case comes within the principle of the decision of the Divisional Court in Tharsis Sulphur Co. v. Societe Industrielle des Metaux 858 L.J. (Q.B.) 435; 60 L.T. 924 and I see no reason for differing from the judgment of Field J. in that case. That learned judge thought it clear upon principle that a person might appoint another as agent to accept service for him, and might enter into a contract that the agent should be the person to accept service, and that service upon that agent should be good service upon himself. That seems to me to be good sense. This case falls within the principle there laid down, and I can find no rule which avoids any such agreement."
This decision has been enshrined in Order 10 Rule 3(1), subject to a qualification about service out of the jurisdiction in Rule 3(2).
McCullough J., commenting on this decision, said:-
"Now that the principle upon which those cases were decided is the subject of a rule, the rule should be treated as defining the limits within which the principle is to operate. The rule marks a sensible boundary. Were the boundary to be crossed, service would be good whenever, on arrival of the plaintiff's process server, a defendant asked someone, however casually, to accept the writ on his behalf, and that person so informed the process server, who then handed the writ to him. This would be to permit service on 'a defendant or his agent'; it would breach the general and important requirement of personal service and lead to disputes about whether the person to whom the writ was handed had in fact been authorised to accept service. There is everything to be said for applying the rules to the letter and recognising nothing outside them. Then plaintiffs and defendants know where they are; both are able to say whether or not the writ has been served."
It is quite clear that in 1898 the rules as to service were not regarded by the courts as being all embracing and exclusive of any other mode of service and I am quite unable to see why this situation is said to have been changed, just because an additional mode or modes of service have been broug within the scope of the rules. The most that could be contend is that, since it was thought necessary to introduce Order 10 Rule 3(1) to make it clear that a defendant could not resil from an agreement to accept service which was ancillary to the contract sued upon, he may well be free to...
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