Nesheim v Kosa
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BRIGGS |
| Judgment Date | 04 October 2006 |
| Neutral Citation | [2006] EWHC 2710 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH/2006/PTA/173 |
| Date | 04 October 2006 |
[2006] EWHC 2710 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Briggs
Case No: CH/2006/PTA/173
MS J HAYES (instructed by W A G Davidson and Company) appeared on behalf of the Claimant
MS S CASSIDY (instructed by Lock & Marlborough) appeared on behalf of the Defendant
The main application before me consists of an appeal from a decision of Master Price given on 20 February of this year whereby he granted the claimant, Jan Joseph Kosa, retrospective permission to serve a claim under the Inheritance Provision for Family and Dependants Act out of the jurisdiction on the defendant, Esther Lillian Nesheim, who lives in Norway.
There is also before the court an application by the defendant to set aside the permission to serve out granted by Master Price, that application being made under CPR 23.10 on the basis that the permission given was made on an application by the claimant without notice within the meaning of that rule. There is finally before the court a cross application on notice by the claimant for retrospective permission to be given now, if necessary.
The essential basis of the defendant's appeal and application to set aside is that since the claimant's claim was not properly served in time and is now statute barred, the claimant's attempts to obtain permission to serve out retrospectively amount to an attempted, and so far successful but improper, invasion of the restrictions in CPR 7.6(3) in a case where, as is common ground, the conditions for the extension of time for service on an application made after the expiry of the specified period, that is four or six months as set out in rule 7.5, are not satisfied.
The facts may be summarised as follows. The claimant is the widower of Diana Adele Kosa who died on 24 October 2003. The defendant is the deceased's executrix, probate having been granted to her on 7 January 2005. She is also the deceased's sister and principal beneficiary in her estate and, as I have said, lives in Norway. Following the grant of probate in January 2005, correspondence including a letter before action threatening a claim under the Inheritance Act commenced on 9 February 2005 and there was then, both on the record and without prejudice, correspondence between the parties' English solicitors including, in particular, requests by each side for the provision of information by the other in advance of the expiry of the six month limitation period for claims under the Act, that is six months from the date of probate.
On 5 July 2005 a claim form was issued under the Inheritance Act and on the same day, in response to an inquiry, the defendant's English solicitors stated that they did not have the defendant's instructions to accept service. The claim form had, by that time, just been issued and was, therefore, in a form which, on its face, contemplated only service within the jurisdiction. The reason later given for the defendant's disinclination to authorise her English solicitors, notwithstanding the earlier correspondence, to accept service, was that she had certain language difficulties and preferred to require the claimant to incur the cost of translating the claim form into Norwegian than to have solicitors of her own incur that cost on her behalf.
The six month time limit for beginning of proceedings expired on 7 July and on the same day the defendant, by her English solicitors, reminded the claimant of the need for permission to serve out and on 13 October, in further correspondence, the claimant, through his solicitor, stated that he would, in due course, be seeking just such permission.
On 5 November the four month time limit for service of the claim form within the jurisdiction expired, nothing by then having been done whether by amendment or the obtaining of permission to serve it out of the jurisdiction.
On 14 November, the claimant's solicitors amended the claim form, had it resealed for service on the defendant in Norway, and it is apparent that the claimant's solicitors had by then changed their view as to the necessity for permission and took the view that it was a claim which could be served in Norway under the Lugano Convention without obtaining permission from the court. It is common ground that their view to that effect was a mistaken one, the reason for that being that claims under the Inheritance Act are of a type outside the scope of the Lugano Convention.
The claim form having been translated into Norwegian, and the other normal steps for service out in Norway taken, the proceedings were purportedly served on the defendant in Norway on 30 December accompanied by Norwegian translation. The version of the claim form then served was not a precise copy of the claim form originally issued because the process of copying and amendment was one which led to the original date of issue stamp of 5 July 2005 to be omitted.
On 5 January 2006 the six month period for service of the claim form out of the jurisdiction expired. On 18 January the defendant's English solicitors filed an acknowledgement of service stating their intention to dispute jurisdiction, the ground relied upon being that the claim form having on its face only been sealed on 14 November was itself out of time, the statutory time limit having expired on 7 July.
On 15 February the claimant's solicitors sent, by fax, a copy of the front page of the claim form on its original form bearing the seal date of 5 July. On 17 February, that is on the Friday before the return day of the defendant's application, the defendant's solicitors amended their application notice, relying for the first time upon the claimant's failure to obtain permission to serve the claim form out of the jurisdiction. By Monday 20 February the claimant, by its solicitors and counsel, had armed himself with a pro forma application for retrospective permission to serve out which was presented both to the Master and to the defendant, I was informed, at the hearing. It was in due course formally endorsed with a statement of truth and converted from a pro forma into an actual application on the following day, that is the day after the hearing before the Master. In its pro forma form, it included by way of draft evidence, material upon which, as I shall later conclude, the court could properly grant permission for service out, but because it was a draft that was not in the form of evidence properly certified as required by the rules.
The Master, as I have indicated, was prepared to dispense with any requirement for longer notice of the claimant's application. There is an issue before me as to whether an adjournment was sought by counsel for the defendant. I shall proceed on the assumption that it was and was refused, but there is no mention of that in the Master's judgment. The Master took the view that the relevant issues were sufficiently apparent from the papers before him and granted retrospective permission as requested.
On 1 March the defendant applied to set aside the retrospective permission granted by the Master and on 20 March the claimant made a fresh application, this time on notice, for retrospective permission.
I turn now to the relevant law. The area in dispute is one where there is a real tension between two competing principles. The first is that an important purpose of the overriding objective and of the CPR regime which gives effect to it is to avoid as far as possible the parties becoming embroiled in long, costly but arid procedural warfare and to focus them and their resources upon the litigation (or resolution by some other means) of the underlying issues in dispute between them. The second principle is that the rules as to the commencement and, in particular, service of originating process are there to be obeyed and likely to be strictly enforced.
The first of those principles is now to be found enshrined in CPR 3.10, formally RSC order 2 rule 1:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction -
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
An example of the vigorous application of the first principle is to be found in the decision of the Court of Appeal in Hannigan v Hannigan [2002] 2 FCR 650. That was a case in which the commencement of procedures under the Inheritance Act was accompanied by a large number of procedural irregularities which led to the claim being struck out at first instance. The Court of Appeal allowed an appeal from that decision. I quote Brooke LJ, in paragraphs 36 to 39 of his judgment:
"36. Of course the proceedings should have been started on CPR Form N208, as opposed to CCR Form N208, and Mr Durrell ought not to have made all the other mistakes which were attributable to his culpable lack of familiarity with the new rules. Moreover the judge was quite correct when he said that the Civil Procedure Rules were drawn to ensure that civil litigation was brought up to a higher degree of efficiency. But one must not lose sight of the fact that the overriding objective of the new procedural code is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly...
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