Olafsson v Gissurarson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob |
| Judgment Date | 03 March 2008 |
| Neutral Citation | [2008] EWCA Civ 152 |
| Docket Number | Case No: B1/2007/0207 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 March 2008 |
[2008] EWCA Civ 152
Sir Anthony Clarke Mrlord Justice Dyson and
Lord Justice Jacob
Case No: B1/2007/0207
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Mackay
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Hugh Mercer (instructed by Olswang Solicitors) for the Claimant
Mr Jasbir Dhillon (instructed by Eversheds LLP) for the Defendant
Hearing dates: 22 and 23 October 2007
Sir Anthony Clarke MR:
Introduction
This is an appeal brought with the permission of Moore-Bick LJ from an order made by Mackay J ('the judge') on 20 December 2006 in which he made an order under CPR 6.9 that service of the claim form be dispensed with. In order to understand the issues in this appeal it is necessary for me to refer briefly to the nature of the case, the procedural history of the action and the earlier decision made by the judge on 8 December 2006.
The nature of the case
I can take the relevant facts from [3] and [4] of the judgment of 8 December. The respondent, whom I will call 'the claimant', is an Icelandic businessman. The appellant, whom I will call 'the defendant', is a professor of political science at the University of Iceland and domiciled in Iceland. The basis of the claimant's claim is the alleged publication on the defendant's website in England of defamatory material relating to the claimant. Solicitors for the claimant wrote to the defendant on 8 June 2004 setting out the claimant's complaints in some detail and on 3 July 2004 the defendant disconnected the home page on his website. On 5 July the claimant's solicitors sent an email to the defendant warning him that proceedings would be issued.
The procedural history
The claim form in this action was issued on 4 August 2004. The claimant's solicitors took immediate steps to have the claim form served on the defendant in Iceland. As explained in more detail below, on the same date they made an appropriate request to the court by signing and submitting Form PF 7. Less than a month later, on 2 September 2004, on the instructions of the International Matters Unit of the Foreign and Commonwealth Office ('the 'FCO'), Mr Simon Minshull, who was Deputy Head of Mission at the British Embassy in Iceland and HM Consul, went to an address in Reykjavik in order to serve the process on the defendant, who is a well known figure in Iceland and was known to him.
He identified the defendant and gave him the claim form and all the other relevant documents including the response pack. The defendant, who reads and understands English, opened the envelope and read the contents. He retained the documents but did not sign any written receipt for them. He was not asked to do so. None of this is in dispute. To put it at its lowest, the defendant knew what the documents were. It is, however, common ground that on these facts the documents were not served on the defendant in accordance with Icelandic law.
There are various methods of service under Icelandic law as follows. Process is duly served on a person if it is served (a) by a public process server or a notary public or (b) by a registered letter delivered by a postman or (c) subject to certain conditions, by publication in the Official Gazette or (d) by delivery to the person and that person signing a declaration on the summons confirming acceptance of the documents. Icelandic law also provides that, if the person concerned attends court on the initial hearing of the case, it is irrelevant whether the summons was otherwise served in accordance with one of the above methods.
The problem here for the claimant is that he did not avail himself of methods (a), (b) or (c) and he could not rely upon any signature on the summons or claim form because the defendant was not asked to and did not sign a declaration on the documents confirming receipt of them. He could not rely upon events at the initial hearing because there has not been such a hearing in Iceland. It is in these circumstances that it is common ground that the defendant was not duly served with the English proceedings in Iceland under Icelandic law, even though he received and retained the documents on 2 September 2004 and he both knew and understood what they contained.
The defendant took advice in Iceland and was told that it was likely that the case would be dismissed by the English courts because he was domiciled in Iceland and, in any case, that there would be no difficulty in seeking a retrial if judgment should be entered against him. In these circumstances he did not acknowledge service of the claim form.
For their part, the claimant and his solicitors thought that the documents had been duly served in Iceland and on 23 December 2004, on being satisfied that they had indeed been served, Master Whittaker gave judgment in default in favour of the claimant and against the defendant for damages for libel together with aggravated damages and costs, with damages to be assessed. Thereafter, the claimant's solicitors kept the defendant informed of the progress of the proceedings but he chose to play no part in them. On 13 July 2005 His Honour Judge Previté QC assessed damages at £55,000 with £10,000 by way of aggravated damages. He also awarded costs and granted a permanent injunction.
On 12 January 2006 the defendant applied to set aside the judgment. The matter came before the Senior Master, Master Turner, who, after a one and a half day hearing, on 23 May 2006 dismissed the application to set aside the judgment under CPR 13.2 and exercised his discretion under CPR 3.10 and/or 6.9 “to correct any error in respect of service”.
The defendant appealed to the judge with the permission of Master Turner and on 8 December 2006 the judge allowed the appeal. He held that CPR 3.10 could not be used in a case where there had been no service under the relevant rules for service, which here were the rules in Iceland. As to CPR 6.9, the judge noted that the claimant had not sought to rely upon it before him. After the judge had handed down his judgment on 8 December, the question arose what orders he should make. It was not in dispute that, in the light of his judgment, the orders and judgments of 23 December 2004 and 13 July 2005 must be aside and the claimant has not sought to appeal against the order made to that effect. The defendant submitted, however, that, in addition to those orders being set aside, the claim should be dismissed. In response, the claimant sought an order under CPR 6.9 dispensing with service of the claim form, alternatively an order under CPR 7.6(3) extending the time for service of the claim form to a date which would permit 're-service' to take place.
The judgment and order of 20 December 2006
In a reasoned judgment handed down on 20 December 2006 the judge held that the court had jurisdiction to make an order dispensing with service of the claim form under CPR 6.9, that it should only do so in an exceptional case but that this was an exceptional case. In the exercise of that discretion he concluded that he should make the order sought under CPR 6.9. He added that in these circumstances it was not necessary for him to reach a conclusion on the application under CPR 7.6(3). He therefore made no order “either way” under that rule.
The appeal
The central issue in the appeal is whether the judge was wrong to make an order under CPR 6.9 dispensing with service. Mr Dhillon submits that he was. In doing so, Mr Dhillon draws attention to these facts, which are not in dispute. The time for service of the claim form expired in February 2005. The limitation period governing the claimant's claim in this action is one year, so that it expired in August 2005. Mr Dhillon submits that the judge had no power to make the order he did, alternatively that it was not appropriate in the exercise of his discretion (as he puts it) to implead a foreign defendant by dispensing with service of the claim form, with the effect (again as he puts it) of retrospectively validating the claim. In response Mr Mercer submits that, in order to succeed, Mr Dhillon must persuade this court that the judge erred in principle or made an order he could not make. He submits that the judge did neither and that he was entitled to make the order he did.
The argument was divided into two parts. In the first the focus was on the position on the footing that this was an entirely English case and in the second it was on the footing that this is an international case. I shall therefore consider the appeal under the heading first of the national perspective and then of the international perspective.
The national perspective
CPR 6.9 provides that the court may dispense with service of a document and that an application for such an order may be made without notice. It is common ground that “the document” includes a claim form. CPR 7.6 gives the court power to extend the period within which the claim form must be served. Rule 7.6(3) provides for the case where the application is made after the time for serving the claim form has expired, whether the time was specified under CPR 7.5 or under an order made under rule 7.6. By rule 7.6(3), the court only has jurisdiction to extend time in such a case if: (a) the court has been unable to serve the claim form; or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and (c) in either case, the claimant has acted promptly in making...
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