Kuenyehia and Others v International Hospitals Group Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Tuckey,Lord Justice Pill |
| Judgment Date | 27 February 2007 |
| Neutral Citation | [2007] EWCA Civ 274,[2006] EWCA Civ 21 |
| Docket Number | Case No: B1/2005/0383,Case No: A2/2007/0036, A2/2007/0036(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2007 |
[2006] EWCA Civ 21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Crane
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Dyson and
Lord Justice Neuberger
Case No: B1/2005/0383
HQ03X03885
Richard Coleman (instructed by Stephenson Harwood) for the Defendant
Peter Birts QC and Mark Hill (instructed by Humphrey Williams) for the Claimants
this is the judgment of the court to which all its members have contributed.
This is an appeal, coupled with a renewed application for permission to appeal, brought by a defendant against a decision of Crane J, who, on 10 February 2005, made an order under r 6.9 of the CPR, dispensing with the service of a claim form. The relevant facts are as follows.
The defendant, International Hospitals Group Ltd, entered into an agreement with Mr. Emmanuel Ashiagbor, under which he agreed to assist the defendant in procuring hospital construction contracts in Ghana. In 1996, one such contract was awarded to the defendant. A year later, Mr Ashiagbor killed himself. During 2000, a claim for over £300,000 was intimated to the defendant by the solicitors then acting for the claimants, Mr Ashiagbor's executors. Somewhat dilatory discussion ensued, following which, in 2003, the claimants instructed fresh solicitors, Humphrey Williams, of Vauxhall, London.
In October 2003, Humphrey Williams started more formal and fairly detailed negotiations directly with the defendant, which continued until about March 2004. Those negotiations appear to have been conducted between the claimants' solicitors and the legal department of the defendant at the defendant's main office in Rickmansworth, Hertfordshire. All the claimants' solicitors' letters in connection with these negotiations were sent by hard copy to the defendant's Rickmansworth office (sometimes by recorded delivery and sometimes by direct delivery) with copies also being sent by fax. The defendant's replies were sent on writing paper from its Rickmansworth office which recorded the fax number of the defendant at that office.
Around the middle of December 2003, it appears that the defendant instructed solicitors, Stephenson Harwood, who wrote to Humphrey Williams stating that they acted for the defendant. On the same day, Humphrey Williams wrote to Stephenson Harwood asking whether they had instructions to accept service on behalf of the defendant. Stephenson Harwood had no such instructions, and, although they sent a fairly detailed reply setting out the defendant's position so far as the claim was concerned, they did not reply to the request as to whether or not they had instructions to accept service. On the same day as that letter was sent, 19 December 2003, the claimants, through Humphrey Williams, issued proceedings against the defendant out of the Queen's Bench Division of the High Court.
The last day for service of the claim form in those proceedings in accordance with the provisions of r 7.5(2) was 19 April 2004. On that day, the claimants' solicitors telephoned the defendant's solicitors to enquire whether they had instructions to accept service, but received no reply as the individual solicitor acting for the defendant was out of the office for most of that day. Accordingly, on the same day, the claimants' solicitors:
a) Sent a copy of the claim form to the defendant's solicitors by courier;
b) Faxed a copy of the claim form to the legal department of the defendant at its Rickmansworth office at the fax number recorded in the defendant's letters for its Rickmansworth office.
Promptly thereafter, the defendant, through its solicitors, raised the contention that the claim form had not been properly served, and that the proceedings were accordingly ineffective. If correct, this contention would raise serious limitation problems for some, components of the claim.
On 7 May 2004, the claimants issued an application seeking an order that service of the claim form had been validly effected, either by its physical delivery to the defendant's solicitors, or by a copy having been faxed to the defendant's Rickmansworth office, or that time be extended for such service, or that service be dispensed with.
That application came before Master Eyre. On 10 November 2004, he made an order acceding to the application, holding that although there had been no service of the claim form in accordance with CPR Part 6, he would dispense with service pursuant to r 6.9, on the grounds that
a) the claimants' solicitors, had taken reasonable steps to effect service of the claim form within the four month period laid down by r 7.5(2) ; and
b) "the real difficulty was created by [the defendant's solicitors'] failure both on 19 December 2003 and on the 19 April 2004 to answer the claimants' solicitors' questions" which led to consequences which were "obviously completely contrary to the spirit of fair litigation".
The defendant appealed against that decision. The appeal came before Crane J, who delivered a full and detailed judgment. He first concluded that the claimants' solicitors had not served the claim form in accordance with the requirements of CPR Part 6. Service on the defendant's solicitors was ineffective because neither had they been given instructions to accept service – see r 6.13 – nor had their address been given by the defendant as its address for service – see r 6.5. Service at the defendant's Rickmansworth office by fax was ineffective, because paragraph (e) of r 6.2(1), which identifies the permitted methods of service under the CPR, requires service by fax to be "in accordance with the relevant practice direction". In that connection paragraph 3.1(1) of Practice Direction—Service states that the party to be served must have given written confirmation "that he is willing to accept service by electronic means" and of his fax number.
In those circumstances, as we think was accepted by both parties, the time for service of the claim form could not be extended under r 7.3, because its strict requirements were not satisfied by the claimants in this case. Accordingly, in agreement with the Master, Crane J held that the only way in which the claimants could succeed in their application was if the Court exercised its power to make an order dispensing with service of the claim form under r 6.9.
Crane J went on to say that he could not accept that the Master was entitled to rely on either of the two grounds he identified for dispensing with service. So far as the first ground was concerned, the Judge concluded that the claimants' solicitors had not taken "reasonable steps to effect service". He said that they had not taken "steps in reasonable time" and that "the steps … taken at the last minute" were not "steps which, on their knowledge at the time, were reasonable on that day". As to the Master's second ground, Crane J said that the defendant's solicitors' "conduct is only relevant in the very limited sense that there was no notification in fact that instructions about service had been accepted", and that he did not consider that they could be "criticised in a way that would be relevant to the exercise of the discretion" to dispense with service under r 6.9.
The Judge also observed that the "real difficulty" was that the claimants' solicitors had "left service until the eleventh hour". He then stated that "none of the evidence… justifies or begins to justify leaving service until the eleventh hour in the way it was" and that they had "brought the problems of 19 April on themselves."
The Judge then said that, as the decision to dispense with service of the claim form could not be supported on the two grounds relied on below, he was free to consider the claimants' application afresh. In that connection, he considered that he should approach the matter in accordance with the principles laid down by this court in Vinos –v- Marks & Spencer plc [2001] 3 All ER 284, Godwin –v- Swindon Borough Council [2002] 1 WLR 997, Anderton –v- Clwyd County Council [2002] 3 All ER 813, Wilkey –v- BBC [2003] 1 WLR 1 and Cranfield –v- Bridegrove [2003] 1WLR 2441.
As Mr Birts QC, who appeared for the claimants with Mr Hill, pointed out, those decisions were all concerned with cases where the claim form had, in fact, been served within the four month period identified in r 7.5(2), but, because of the deeming provisions of r 6.7, service had to be treated as effected outside that period. However, in agreement with Crane J, we do not consider that that can make any difference to the applicability of the principles laid down in those cases to the present case. In this case, as in those cases, service of the claim form was not effected in accordance with CPR Part 6 within the time permitted, albeit that the defendant had in fact received the claim form (or a copy thereof) within that period. If anything, the claimant's position could be said to be a little weaker here, as in the earlier cases, the claim form was properly served within the four month period, but the claimant was caught by a deeming provision, whereas here the claimant had simply not served the claim form in a manner which complied with the requirements of the CPR within the permitted period. However, such fine distinctions should not, in our view, be drawn in this area, where simplicity, clarity...
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