Leal v Dunlop Bio-Processes International Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE MAY,LORD JUSTICE SLADE |
| Judgment Date | 13 February 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0213-1 |
| Docket Number | 84/0053 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1984 |
[1984] EWCA Civ J0213-1
Lord Justice Stephenson
Lord Justice May
and
Lord Justice Slade
84/0053
1981 L No. 41
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWPORT, ISLE OF WIGHT DISTRICT REGISTRY
(MR. JUSTICE NEILL)
Royal Courts of Justice
MR. DAVID TUCKER (instructed by Messrs. Hewitt Woollacott & Chown, Solicitors, London EC4, Agents for Messrs. Robinson Jarvis & Rolf, Solicitors, Newport, Isle of Wight) appeared on behalf of the Plaintiff (Appellant)
MR. EDWIN GLASGOW (instructed by Messrs. C.A. Norris, Solicitors, Ringwood, Hants) appeared on behalf of the Defendants (Respondents)
This is an appeal by the plaintiff, Mr. Leal, against an order of Mr. Justice Neill made on 12th November 1982, by leave of the judge granted on 17th December 1982, setting aside the service of a writ on the defendants (to whom I refer as "Dunlop") and refusing to extend the validity of the writ.
Dunlop's registered office is in the Channel Island of Jersey, which is admittedly outside the jurisdiction. The plaintiff's writ was issued out of the Newport District Registry in the Isle of Wight on 20th May 1981, just in time to avoid being statute-barred, claiming damages for personal injuries alleged to have been sustained by the negligence of Dunlop, in the course of the plaintiff's employment by them under a contract in writing expressed to be subject to English law, in Malaya on 27th May 1978. It was issued, without leave of the court, after correspondence thinly spread by the plaintiff's solicitors and Eagle Star, Dunlop's insurers, over more than two years. On 8th March 1979 the plaintiff's solicitors wrote to Dunlop to notify them that a claim for damages was being made. On 27th May 1981 Dunlop's insurers, whose replies to the plaintiff's solicitors had been unhelpful, wrote informing the plaintiff's solicitors that they wished the proceedings to be served on Dunlop direct.
Nearly a year later, on 18th May 1982,the plaintiff's solicitors' agents in Jersey purported to serve the writ on Dunlop in Jersey, the day before the writ expired, again without leave of the court.
If the writ was "to be served out of the jurisdiction" the plaintiff required the leave of the court to issue it: Rules of the Supreme Court O. 6 r.8. There is some doubt whether this writ was to be served out of the jurisdiction, because a writ against a foreign defendant—and Dunlop are admittedly a foreign defendant—can be marked "not to be served out of the jurisdiction" and no one can tell us whether this writ or any copy of it was so marked. But there is no doubt that the plaintiff required the leave of the court (and I find it hard to avoid the use of the word "required") to serve the writ out of the jurisdiction in Jersey: O. 11 r.1.
Dunlop's solicitors knew this. On 9th June 1982 they returned an acknowledgment of service on the newly prescribed form accompanying the writ as required by O. 10 r.1(6), and on 10th June they took out a summons under O. 12 r.8 in the Newport District Registry applying to set aside the purported service of the writ and to dismiss the action on the ground that the plaintiff had failed to obtain, pursuant to O.11, leave to serve it out of the jurisdiction. On 19th July the plaintiff's solicitors took out a cross summons applying for an order that the writ be renewed under O. 6 r.8(2) and for leave to serve the renewed writ out of the jurisdiction under O. 11 r.1.
On 30th July the registrar dismissed Dunlop's application. He did not give the plaintiff leave to serve the writ out of the jurisdiction, nor did he extend the validity of the writ. He simply dismissed Dunlop's application, but the judge rightly treated the real intention of his order to be the grant of leave to serve the writ out of the jurisdiction ex post facto, so that there was no need to renew the writ.
The principal argument of the plaintiff's counsel, Mr. Tucker, before the registrar and the judge, ably repeated before this court, is that the failure to obtain the leave of the court to serve the writ in Jersey was an irregularity, due to a mistake by the plaintiff's solicitors and counsel, which could and should be put right by the exercise of the court's power under O. 2 r.1. That argument prevailed with the registrar, but not with the judge, who said in an approved note of his reserved judgment that he was satisfied:
(1) "that the service of a writ out of the jurisdiction for which the leave of the court has not been obtained is not a nullity";
(2) "that the court cannot then give leave retroactively under Order 11 by exercising the general power in Order 2 rule 1."
He added:
"It may be that such a power does exist in theory, but I am satisfied that in the light of the decision of the Court of Appeal in Bernstein v. Jackson, (1982) 1 Weekly Law Reports 1082 it would be a wrong exercise of discretion for me to seek to cure this irregularity by exercising such a power".
He expressed his conclusion thus:
"I cannot or at any rate should not cure the irregularity of the service in Jersey by purporting to grant leave to serve out of the jurisdiction ex post facto".
Mr. Tucker's second argument was likewise rejected by the judge, who disposed of it in this way:
"He submitted that even if it were not permissible to cure the irregularity of service ex post facto the same result could be achieved by extending the validity of the writ and then giving leave to Mr. Leal to issue a concurrent writ for service outside the jurisdiction on Dunlop in Jersey. The difficulty about this argument, however, is that the claim by Mr. Leal is wholly or at any rate mainly in respect of personal injuries and is therefore subject to a three year period of limitation prescribed by s.11 of the Limitation Act 1980.
"On this point I was referred by Mr. O'Brien on behalf of Dunlop to the decision of Mr. Justice Megaw in Heaven v. Road and Rail Wagons (1965) 2 Queen's Bench 355. In the light of this decision and the more recent decision of the court of appeal in Chappell v. Cooper (1980) 1 Weekly Law Reports 958 I do not consider that there are any special circumstances in the present case which would justify me in granting leave to extend the validity of the original writ. In respect of any claim for damages for personal injuries the period of limitation expired at the end of May 1981. In my judgment no good or sufficient reason has been put forward on behalf of Mr. Leal to entitle me to extend the validity of the writ ex post facto for any further period. It is true that the present case is distinguishable from the case of Bernstein v. Jackson (supra) where the court could not in any event have extended the validity of the writ because more than 12 months had elapsed from the date of its expiry. Nevertheless there is a general and well established rule that a writ will not be extended so as to deprive a defendant of a limitation defence except for some good reason. I see no such reason in the present case".
I fully agree with that paragraph, with only one reservation. I agree that the present case is distinguishable from Bernstein's but not for the reason given by Mr. Justice Neill. In that case the writ expired in December 1978, but in 1981—when it would have needed more than one extension—first the registrar and then the judge dispensed with non-renewal and the judge cured it as an irregularity under o. 2 r.1. This court decided that he was wrong. Lord Justice Dunn (at p.1089) gave two reasons: (1) no jurisdiction ("I do not think that the judge could have extended the writ"); (2) wrong exercise of discretion ("assuming that it (sic) could"). Lord Justice Slade agreed that the appeal should be allowed for the reasons given by Lord Justice Dunn and said, also at p.1089: I do not think that (the judge) could have properly extended its validity, for the reasons already given by Lord Justice Dunn".
If Lord Justice Dunn meant to say that the judge had no power to extend the validity of the writ under O. 6 r.8(2), even if an application to extend had been made, I respectfully consider that he was ignoring the terms of O. 6 r.8(2); if he meant to say that the judge had no power to treat the failure to extend the writ as an irregularity under O. 2 r.1, again I have to disagree with him, for the reasons I give later. So I would prefer to regard Bernstein's case as decided on the ground, apparently preferred by Lord Justice Slade, that there was an improper exercise of the judge's powers. It has long been a principle of the exercise of the court's discretion to renew a writ or to extend its validity, as the heading of O. 6 r.8 and the rule itself variously describe it, that the discretion should not be exercised retrospectively after the period of 12 months prescribed by the rules has expired so as to deprive the defendant of a defence under a statute of limitation unless there are exceptional circumstances. That principle has survived new rules ( Heaven's case) and new statutes of limitation ( Chappell's case). To those cases may now be added The Vrontados, (1982) 2 Lloyds Reports 241. The plaintiff's application to renew the writ, which expired on 20th May 1982, was made on 19th July 1982; but there was nothing exceptional in the mistake made by the plaintiff's legal advisers, however serious, if incurable, its effect on his claim might be. Though Dunlop were in fact aware that they were to be pursued in the courts when the plaintiff's writ was...
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CURING NON-COMPLIANCE WITH FOREIGN LAWS IN THE CONTEXT OF SERVICE OUT OF JURISDICTION
...also Afro Continental Nigeria Ltd v Meridian Shipping Co (The “Vrontados”)[1982] 2 Lloyd's Rep 241 at 245; Leal v Dunlop Bio-Process Int[1984] 1 WLR 874 at 882 and Camera Care Ltd v Victor Hasselblad[1986] 1 FTLR 348 at 354. 106 This may occur when the court on its own motion, or alternativ......
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SELECTED CASE-LAW DEVELOPMENTS IN CIVIL PROCEDURE
...Chia Ah Sim v Ronny Chong & Co[1993] 2 SLR 564. 20 See, for instance, Bernstein v Jackson[1982] 1 WLR 1082; Leal v Dunlop Bio-Processes[1984] 1 WLR 874. 21 See Ord 6, r 4 (SCR), as amended by the SC (Amendment) Rules, 1994 (S 260/94). 22 [1994] 1 ALL ER 568. 23 (1977) [1991] 1 WLR 683. 24 P......
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NOTES AND COMMENTS
...officers in other countries…”. 6 Ibid. 7 Ibid, page 432. 8 Ibid, page 432. See however Leal v Dunlop Bio-processes International Ltd[1984] 1 WLR 874. 9 See Form 2 of 1970 Rules. See also Ferrarini S.p.A. v Magnol Shipping Co Inc. (The Sky One)[1988] 1 L.L.R. 238, 243. 10 The case of Re Busf......