Myerson v Martin
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WALLER,LORD JUSTICE EVELEIGH |
| Judgment Date | 26 June 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0626-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1977 M. No.2048 |
| Date | 26 June 1979 |
(the Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Defendants being in partnership under the name or style of Bedell & Cristie)
[1979] EWCA Civ J0626-1
The Master of the Rolls (Lord Denning)
Lord Justice Waller and
Lord Justice Eveleigh
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
(Master Creightmore)
MR. S.M. GEE (instructed by Messrs. Geoffrey Myerson & Co.) appeared on behalf of the Plaintiff (Appellant).
MR. W. GETZ (instructed by Messrs. Ashurst Morris Crisp & Co. appeared on behalf of the First Defendant (Respondent).
The principal parties to this case are Mr. Geoffrey Myerson and Mr. Richard Haig Martin. Mr. Myerson is a solicitor of the Supreme Court who practices at 13 Harley Street London. Mr. Haig is also a solicitor of the Supreme Court who practices at 41 Marina Court, St. Helier, Jersey. At the time when the troubles arose between them, they were both resident in Jersey. They were not within the jurisdiction of this court. The trouble arose: because, in the course of very complicated dealings, Mr. Myerson seems to have given to some parties a promissory note for the sum of £15,750 with interest. Mr. Myerson says that the note was conditional and could be avoided for misrepresentation and the like. I need not go into all the details, except to say that a crucial matter arose in October 1976. Mr. Martin, with others and in particular some assignees of the promissory note, took proceedings in Jersey - such proceedings are not known in England - for an "Ordre Provisoire" from the Royal Court of Justice of the Island of Jersey. The result of that, so far as one can ascertain, was that it was tried ex parte without Mr. Myerson being heard at all: and he was imprisoned in La Moye Prison in Jersey on the 1st November, 1976. There was nothing against him except that these people said that he owed them money. That very special procedure seems to me to be very much out of date; but it is still extant in the island of Jersey. A man can be cast into prison on a disputed debt without being heard.
Mr. Myerson was very upset about this. With the help of his future wife, whilst he was in prison, he entered into negotiations for his release. As a result of those negotiations, he was allowed to leave the prison on executing several documents. He says that they were extracted from him by duress.
After executing the documents, Mr. Myerson left Jersey and came to England. He sought to start legal proceedings by writagainst Mr. Martin and other people. He accused them of conspiracy against him and other wrongs which had been done to him in the island of Jersey. In the ordinary way, if he wanted to sue these people in Jersey, he would have to get leave to serve a writ out of the jurisdiction under order 11, rule 1 of the Rules of the Supreme Court.
But Mr. Myerson did not want to take those proceedings. It is doubtful whether he would ever have got leave to serve out because all these transactions took place in Jersey. So on the 14th April, 1977 Mr. Myerson, being resident in England, issued a writ against Mr. Martin and the other defendants not for service out of the jurisdiction - and this is important - but for service within the jurisdiction.
That writ has never been personally served on Mr. Martin. Mr. Myerson wishes to make substituted, service upon him although he is not in this country. On the 14th April, 1977. Mr. Martin was not in England. As far as we know, he was in Jersey on that date. He was not within the jurisdiction of this court at the time the writ was issued. That is an important matter which I must stress at the moment.
Nevertheless, although Mr. Martin was not here on that date, he is obviously a gentleman who goes to and fro from Jersey to England. He is at director of an important public company in England called the Myson Group Ltd., which has its head office at Ongar in Essex, and which has its showrooms at 25 St. James Street in London. Mr. Martin frequently comes to England for monthly meetings of the directors of that company. Over the last four or five years he has attended 41 out of 58 board meetings: and he often visits the Group's showrooms at 25 St. James Street. There was a board meeting on the date when the writ was issued, the 14th April, 1977: but Mr. Martin was not in England on thatdate. But he did come to England shortly afterwards on the 27th April, 1977 and stayed until the 3rd May, 1977. During that time the process server tried to serve him personally with the writ. He made arrangements with a lady who was working in the showroom to try and fix a time when he would be available for service. But all those arrangements came to nothing. It turned out that it was impracticable to serve him personally on that visit to England and on subsequent visits. In some way Mr. Martin managed to avoid the process servers. They did not find lit practicable to serve him on any of his visits to England.
In those circumstances, Mr. Myerson applied for substituted service on Mr. Martin. Order 65, rule 4(1) of the Rules of the Supreme Court provides: "If, in the case of any document which by virtue of any provision of these rules is required to be served personally on any person, it appears to the Court, that it is impracticable for any reason to serve that document personally on that person, the Court may make an order for substituted service of that document". So an application was made for substituted service. On the 23rd January, 1978 an order was made for substituted service to be made upon Mr. Martin at 25 St. James Street, the group's showrooms, which he often visits. It was to be made by letter addressed to 25 St. James Street. We do not know whether it was given to him there or sent over to Jersey. But, at all events he received it. Having received, it, he applied to set aside that service as being improper. That is the question in this case. Is it a case where substituted service was permissible on Mr. Martin?
We have been referred to many cases on the subject. It is clear that the courts have to draw a dividing line between cases which are appropriate for service within the jurisdiction (which do not require the leave of the court) and those for service outof the jurisdiction (where the leave of the court is required). On this point for many years the courts have followed some dicta in Fry v. Moore (1889) 23 Queen's Bench 395. Mr. Moore had previously lived at Woodbridge in Suffolk: but, before the writ was issued, he had gone to Canada and remained in Canada thereafter. I put aside the point of waiver on which the case turned. I will only read the principle as stated by Lord Justice Lindley at page 397:
"There are certain principles which govern the rules, and in Field v. Bennett the Queen's Bench Division laid down the principle that, if a writ could not be served personally at the time when it is issued, there cannot be substituted service. That is a sound principle". Lord Justice Lopes said words to the same effect. Note the words "if a writ could not be served personally at the time when it is issued". Those words make the time of issue crucial.
Next there was an authorative statement in Porter v. Freudenberg (1915) 1 King's Bench 857. That was a case about alien enemies. A special court of seven members of this court was constituted. In a reserved judgment delivered by Lord Reading, L.C.J, the court said: "The general rule is that an order for substituted service of...
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