Olafsson v Gissurarson
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE MACKAY,Mr Justice Mackay |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWHC 3214 (QB),[2006] EWHC 3162 (QB) |
| Docket Number | Case No: HQ04X02463 |
| Court | Queen's Bench Division |
| Date | 20 December 2006 |
[2006] EWHC 3162 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Mackay
Case No: HQ04X02463
Mr. Jasbir Dhillon (instructed by Eversheds LLP) for the Appellant
Mr Hugh Mercer (instructed by Spring Law) for the Respondent
Hearing dates: 30 November and 8 December 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Overview of the case
This is an appeal from an order of Master Turner, the Senior Master, dated 23 May 2006. After a one and a half day hearing he dismissed the appellant/defendant's application under CPR 13.2 to set aside a judgment in default, and exercised his discretion under CPR 3.10 and/or 6.9 "to correct any error in respect of service"
The appellant defendant appeals this order with the permission of the Master. This appeal therefore is a return to the vexed issue of service of English proceedings out of the jurisdiction of the English Court.
The Relevant Facts
The appellant is a professor of political science at the University of Iceland, a resident of Iceland and an English speaker. The respondent is an Icelandic businessman. The basis of the claim is the alleged publication by the appellant on his website of defamatory material relating to the respondent. That material is said to amount to an allegation that the respondent was a former drug dealer, had employed sharp business practices, maintained corrupt relationships with Icelandic politicians and was guilty of tax evasion.
Solicitors for the respondent made contact with the appellant following which the appellant disconnected the home page on his website. After a letter before action proceedings were issued in this court on 4 August 200On the 2 September 2004 on the instructions of the international legal matters unit of the FCO Simon Minshull, Deputy Head of Mission at the British Embassy in Iceland and Her Majesty's Consul, set about the service of these proceedings on the appellant at an address in Reykjavik. He identified the appellant, who was already known to him, and gave him a copy of the claim form and all other court documents including the response pack. Beyond receiving the envelope containing all the documents, opening and reading them the appellant took no other steps. He did not sign any written receipt.
The appellant took advice from a lawyer at the University of Iceland on the question of the jurisdiction of the English Court. There is no evidence that he took advice specifically on the issue of whether he had been properly served with the proceedings. Jurisdiction as such is not in issue in this appeal.
There having been no acknowledgement of service, and the court being satisfied that the documents had been served, on 23 December 2004 Master Whittaker ordered judgment in default in favour of the respondent for damages for libel together with aggravated damages and costs.
Thereafter the respondent's solicitors kept the appellant fully informed of the progress of proceedings by fax and telephone and the appellant chose to take no part in the events which followed. These proceedings culminated in an assessment of damages on the 13 July 2005 by HH Judge Previte QC who assessed damages at £55,000 with £10,000 by way of aggravated damages and he granted a permanent injunction.
On the 12 January 2006 the defendant applied to set aside that judgment. At the hearing of that application the respondent in turn applied for relief under CPR 3.10 and/or 6.9. The result was as stated above.
The Relevant Rules
I should set out the rules relevant to the issues raised by this appeal.
CPR 1.1(1): "These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly"…
The Court must seek to give effect to the overriding objective when it –
(a) Exercises any power given to it by the rules; or
(b) Interprets any rule…
CPR 3.10: "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.
CPR 6.9 (1): The Court may dispense with the service of a document
(2) An application for an order to dispense with service may be made without notice.
CPR 6.24 (1): where a claim form is to be served out of the jurisdiction, it may be served by any method –
(a) Permitted by the law of the country in which it is to be served…
(2) Nothing in this rule or in any Court order shall authorise or require any person to do anything in the country where the claim form is to be served which is against the law of that country.
CPR 13.2: the Court must set aside a judgment entered under part 12 if judgment was wrongly entered because –
(a) In the case of a judgment in default of an acknowledgement of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied…
The relevant Icelandic law relating to service of process in that country is contained in the Icelandic Civil Procedure Act number 91/1991, article 83. The evidence before the Master was that the effect of that law was as follows: (1) Process is duly served if (a) the process server or a notary public bears witness to the service of the process on the summonee or any person competent to take delivery of the process in his or her place: (b) a duplicate of the process is sent by registered mail which is delivered and the postman bears witness to the delivery to the summonee or another person competent to take delivery of the process in his or her place.
(2) A summons is also adequately served if advertised in the Official Gazette pursuant to article 89
(3) In place of the service of process pursuant to paragraph (1), and with equal effect, a process may be made known by the following procedures:
(a) The summonee in person signs a declaration on the summons confirming acceptance of the delivery of its duplicate…..
(4) If the summonee attends the Court at the initial hearing of the case it is irrelevant whether or not the summons has been served or notified to the summonee, whether the service was deficient or the summons served with inadequate notice
The Master's Judgment
On the 14 June 2006 the Master produced written reasons for the order he had made. Having set out the Icelandic law as to service, which constituted a complete and exclusive code, he identified the problem in the case as being the fact that the consul had failed to obtain from the defendant a signed receipt on an appropriate Court form for the papers which he had in fact delivered, and which the appellant was accepting he had received.
As in the appeal before me the Master had a large number of authorities cited to him. Many were decisions on RSC O.2 r.1, broadly the predecessor of CPR 3.10. I find for my part that the most reliable assistance is to be derived from post-CPR authorities. At all events, the Master reminded himself of the overriding objective, and the general reasons for service pervading all jurisdictions, namely the need to ensure that the defendant had received the process, that the Court should be aware that he had done so, and that the defendant should appreciate that what he received concerned Court proceedings which required some response from him. He relied on the authority of Golden Ocean Assurance Ltd v World Mariner Shipping SA (the Goldean Mariner) [1990] 2 Lloyd's Rep 215, a case on RSC O.2 r.1.
Before the Master, as in this appeal, the appellant placed heavy reliance on two decisions of Colman J in the case of Shiblaq v Sadikoglu, the second of which was reported at [2004] EWHC 1889 (Comm); [2004] 2 All ER(Comm) to which I will have to return. The Master preferred the Court of Appeal's reasoning in the Goldean Mariner, and noted that in any event Colman J's judgment had not been tested on appeal and was not binding on him. He considered other authorities and concluded that as the error on the part of the consul was "not to ask the defendant to sign a copy of the claim to acknowledge receipt as required by article 83 (3) (a)", while carrying out or purporting to carry out a recognised form of service, that it was an irregularity that ought properly to be cured by the application of CPR 3.10. He gave reasons for exercising his discretion so as to reach that decision.
Could the Master have applied CPR 3.10 as he did?
The appellant's case is that simple personal service, no matter by whom it is effected, is not a permitted method of service in Iceland. Therefore the respondent did not use any of the permitted methods of service and the Master should have so found. The Master was not entitled to treat the failed attempt at service in the way that he did. There was a fundamental flaw in the purported service which was of no effect and which cannot be rendered valid by the retrospective application of CPR 3.10. The appellant stresses the importance of strict observance of service rules imposed by the state in which the person served is found.
The appellant's argument is that either there is service or there is no service and this is a case where there is none. That being so the judgment entered under CPR 12 was wrongly entered because there cannot have been a default in the provision of an acknowledgement of service. The terms of CPR 13.2 are such that it is mandatory in those circumstances that the court must set aside the default judgment.
In Shiblaq No 2 between paragraph 36 – 41 Colman J addressed the question of whether CPR...
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