Nanglegan v Royal Free Hampstead NHS Trust

It seems that on 3rd May 1996 Carmelita Nanglegan sustained an accident whilst at work at the Royal Free Hospital where she was employed by the Royal Free Hampstead NHS Trust. She instructed a solicitor, Mr. Matthews. It was necessary for proceedings to be issued within the three year period allowed by the statute. May 3rd 1999 was in fact a bank holiday, so the claim squeaked in by issue on the following day, 4th May 1996. There was then a period of four months within which the claim had to be served on the Royal Free Hospital NHS Trust.

It seems that there had been prior correspondence between Mr Matthews and the insurance company acting for the Trust. The insurers notified Mr. Matthews' firm that they were instructing solicitors, Browne Jacobson, to accept service. On 5th July Browne Jacobson wrote to Mr. Matthews' firm confirming that they were instructed to accept service.

Prior to completion of the preparation of the particulars of claim, it was necessary for Mr. Matthews to obtain expert evidence in the form of a medical report. He did not instruct the specialist until 9th August. The specialist examined the claimant on the 18th and managed to issue a report in writing on the same day. On 31st August Mr. Matthews relied on his secretary to serve the claim on the defendant. Instead of serving on Browne Jacobson the particulars were addressed to the Chief Executive, the Royal Free Hospital, Pond Street, NE2 2BB. Assuming that it was open to the claimant to serve the defendant direct, first of all, it was not the Royal Free Hospital but the NHS Trust that was the proper defendant. But of far greater significance is that for the correct post code of NW3 2QG, the sender had selected or invented the thoroughly inaccurate post code, namely NE2 2BB.

It seems that Mr. Matthews was quitting the office for a holiday commencing Saturday, 4th September. On the eve he went through a number of files in which he anticipated some sort of activity during his fortnight's holiday. One of the selected files was this and, as he said in a subsequent affidavit, his inspection of the file led him to the discovery that the proceedings had been inadvertently served on the defendants rather than their nominated solicitors. He said that once he had appreciated the mistake, he left a taped message for his secretary to telephone Browne Jacobson to explain what had happened. It seems that on the following Monday his secretary duly dispatched the claim to Browne Jacobson and that it was received on the following day. Not surprisingly, they took the view that the claim had not been properly served within the four month period provided by the rules. On 13th September they issued a notice of application, by which they sought an order that there had not been valid service of proceedings in accordance with the Civil Procedure Rules 1999. They further took the point that the claimant had elected to sue the wrong defendant.

That application was fixed to come before the district judge on 15th November. Three days before the fixture, Mr. Matthews' firm issued a notice of application seeking orders (1) that there be leave to rectify the description of the defendant, and (2) that time for service of the particulars of claim be extended retrospectively to 10th September. The district judge reached the conclusion that the purported service did not comply with the rules but she exercised a discretion, which she found under rule 7.6, to extend time to save the claim. The defendant successfully appealed to His Honour Judge Colthart, all this in the Clerkenwell County Court. On 11th February 2000 he held that the purported service did not comply with the rules, although on a different ground to that which the district judge had found, but, in considering the application under rule 7.6, he reached the reverse conclusion and brought the case to a summary end. The claimant sought permission which was granted on 26th September, largely because the court felt that it would be desirable to clarify the difference of view between the district judge and the circuit judge as to whether the purported service failed, by virtue of rule 6.4, as the district judge had found, or by virtue of rule 6.5, as the circuit judge had found. It is now conceded and agreed between counsel that rule 6.4, which is a rule specifically dealing with personal service, is of no application to this case. Accordingly, we have only to consider Mr. Granville Stafford's submission, that the effect of rule 7.5 and rule 6.5 in conjunction is that a claimant has effectively an option, either to serve on solicitors who have been nominated for service, or, alternatively, to serve on the defendant himself, provided the document to be served is the claim form.

Mr. Granville Stafford placed considerable emphasis on rule 7.5. The heading to the rule is "Service of a Claim Form". Paragraph (1) of the rule states:

"After a claim form has been issued, it must be served on the defendant."

That, he says, is a rule of general application, and it replicates the old law, whereby the requirement was always service on a defendant and that service on nominated solicitors was a technical breach of the practice only validated by judicial decision. He then placed great reliance on rule 6.5(5).

In order to understand and determine his submission, it is necessary to set out this rule in its entirety to the conclusion of the fifth paragraph. It reads as follows:

"(1) Except as provided by section 111 of this Part (service out of the jurisdiction) a document must be served within the jurisdiction.

(2) A party must give an address for service within the jurisdiction.

(3) Where a party -

(a) does not give the business address of his solicitor as his address for service; and

(b) resides or carries on business within the jurisdiction,

he must give his residence or place of business as his address for service.

(4) Any document to be served -

(a) by first class post;

(b) by leaving it at the place of service;

(c) through a document exchange;

(d) by fax or other means of electronic communication,

must be sent or transmitted to, or left at, the address for service given by the party to be served.

(5) Where -

(a) a solicitor is acting for the party to be served; and

(b) the document to be served is not the claim form;

the party's address for service is the business address of his solicitor.

(Rule 6.13 specifies when the business address of a defendant's solicitor may be the defendant's address for service in relation to the claim form)."

So, says Mr. Granville Stafford, it is plain that there is one regime for the service of the claim form and a different regime for the service of any subsequent documents within the case. He says that it is easy enough to understand why the rules have been so drafted. The obligation on the claimant to give an address for service arises at the earliest stage when he completes his claim form, for on the reverse of the form and at its foot is a box to be completed with the claimant's or claimant's solicitor's address, to which documents or payments should be sent. However, he stresses that the defendant's first opportunity comes when he completes the response pack form which accompanies the claim duly served upon him. Accordingly, as he submits, it would be quite inappropriate for rules to require service of the initial claim form otherwise than on the defendant himself, who has had no preliminary opportunity to comply with the requirement under paragraph (2) to give an address for service. Once he has had that opportunity and accordingly made compliance with his obligation under paragraph (2), then, thereafter, any document within the proceedings is to be served on the business address of his solicitor. That argument did not appeal to Judge Colthart, who held that the obligation was primarily stated by paragraph (4), namely, any document to be served by first class post must be sent to the address for service given by the party to be served.

The comprehension of rule 6.5 is not easy at a first reading, and I have reached this conclusion, that despite the powerful submissions that Mr. Granville Stafford has advanced, the primary obligation is on a party to give an address for service, and that once there has been compliance with that obligation, ordinarily speaking, service will be at the address given. Paragraph (3) seems to give to a party a choice. If he has not elected to give the business address of his solicitor as his address for service, he may instead give either the address of his residence or, alternatively, the address of his place of business if he carries on business within the jurisdiction. But the general obligation created by paragraph (2), and the election created by paragraph (3), is then to some extent confined by the terms of paragraph (5). So if a party has elected to give either the address of his residence or the address of his place of business as his address for service, the intervention of paragraph (5) requires service of any document, other than the claim form, upon the solicitor acting on his behalf in...