Serbian Orthodox Church — Serbian Patriarchy v Kesar & Company
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 13 May 2021 |
| Neutral Citation | [2021] EWHC 1205 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Appeal Number: QA-2021-000012 SCCO Ref: SC-2020-BTP-001249 |
| Date | 13 May 2021 |
[2021] EWHC 1205 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foxton
Appeal Number: QA-2021-000012
Case No: QB-2019-000043/46/48/49/50/51
SCCO Ref: SC-2020-BTP-001249
Kevin Latham (instructed by Francisco Rodriguez of DWF Costs Ltd) for the Appellant
Andrew Hogan instructed by the Respondent
Hearing date: 29 April 2021
Draft judgment circulated: 05 May 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Foxton
This is an appeal brought by the Appellant against the decision of Senior Master Gordon-Saker of 23 December 2020 setting aside a Default Costs Certificate (“DCC”) made by the Court on 16 November 2020 in respect of the Respondent's (“Kesar's”) liability under a wasted costs order.
The appeal was very well-argued by Mr Latham and Mr Hogan, and I am grateful to them for the high quality of their submissions.
A THE FACTS
The background
By way of brief summary of the background:
i) Various individuals, represented by Kesar, issued proceedings against the Appellant relating to allegations of abuse alleged to have been carried out by clergy of the Serbian Orthodox faith in Bosnia-Herzegovina, Croatia and Serbia on various dates over the period from 1998 to 2014.
ii) On 17 January 2014, Master Cook ruled that the court had no jurisdiction to try those claims, that the claim forms had not been properly served and that they had been brought against the wrong party. That judgment was very critical of the conduct of Mr Kesar (the principal of Kesar), referring to his “complete disregard of the Civil Procedure Rules”, the absence of compliance with CPR 22 so far as the statements of truth were concerned and the fact that Mr Kesar “appears to have had no proper understanding of the effect of Rule 7.5”. Having regard to what Master Cook described as “the wholesale failures by the claimants' solicitors to comply with the provisions of the CPR”, “the wholesale failure to comply with the provisions of CPR 22 in regard to the statements of truth” and the “complete misunderstanding of the rules relating to service”, Master Cook ordered that costs be paid on an indemnity basis. He also directed that Kesar show cause why it should not be subject to a wasted costs order.
iii) Following a hearing on 20 May 2020 to address that issue, on 13 August 2020 Master Cook handed down a judgment ordering Kesar to pay the wasted costs on an indemnity basis.
On 17 September 2020, Mr Donnelly of the Appellant's solicitors indicated that the Appellant was happy to receive service of documents by email if Kesar confirmed its readiness to do so. On 18 September 2020, Mr Kesar replied:
“I am happy to accept service by email as [long as] this is reciprocated”.
Mr Donnelly replied:
“No problem. Yes I'm happy to agree that moving forwards service of documents by email between us is accepted”.
These exchanges were conducted using Kesar's email mkesar@kesar.co.uk (“the short email”). It would appear that Kesar had at some stage used another email address – mkesar@kesarandcosolicitors.co.uk (“the long email”). On 15 October 2020, the Appellant sent its notice of commencement and accompanying bill of costs, in the sum of £222,256.85, to the long email address. Kesar had put in place arrangements for all emails sent to the long email address to be immediately and automatically forwarded to the short email address, which duly received these documents at or around the time of despatch. If this constituted valid service, then Kesar had until 9 November 2020 to file Points of Dispute. No such document was filed, and by a letter sent on 12 November and received by the court on 13 November 2020, the Appellant sought a DCC in the amount of £222,256.85. The DCC was entered by the court on 16 November 2020. On 25 November 2020, Kesar applied to set aside the DCC.
The hearing before Senior Master Gordon-Saker
In its evidence filed for the hearing before Senior Master Gordon-Saker, Kesar took two points:
i) That there had been no agreement to accept service by email.
ii) That the Court should exercise its discretion under CPRr.47.12(2) to set aside the DCC because there was “good reason” to do so (an application which it was common ground before the Senior Master and before me involved the application of the three-stage test in Denton and others v TH White Ltd [2014] EWCA Civ 906).
However, at the start of the hearing, Mr Patel, who appeared for Kesar at that hearing, took a new point – that an email sent to the long form email address did not involve service at an email address at which Kesar had agreed to be served, and for that reason, did not constitute valid service for the purposes of CPR 6.20 and Practice Direction 6A. Mr Latham was offered the opportunity to request an adjournment of the hearing, but having had a brief opportunity to take instructions, he informed the court that the Appellant was content for the hearing to continue.
In the event, Senior Master Gordon-Saker:
i) rejected Kesar's argument (which was not seriously pursued at the hearing) that there had been no agreement to accept service by email;
ii) accepted Kesar's argument that sending an email to the long form email address, which had then been automatically and instantly forwarded to the short form email address, did not constitute valid service; and
iii) confirmed that he would not have been satisfied, had the issue arisen for determination, that Kesar had shown “good reason” for setting the DCC aside.
The Appellant now appeals the Senior Master's conclusion at ii). In addition, it argued that it was and is open to the court to waive any defect in service under CPR 3.10 or make an order under CPR 6.27 that the documents had been validly served. In addition to resisting the appeal, Kesar contends that these further arguments are not open to the Appellant because they were not raised before the Senior Master. Finally, Kesar contends that the Senior Master took account of an irrelevant consideration (namely Mr Kesar's failure to be candid as to the agreement for service by email in his evidence in support of the set-aside application) in reaching his decision that no “good reason” to set aside the DCC had been made out, and that I should, if necessary, hold that the DCC should have been set aside on that basis.
B WAS SERVICE EFFECTED IN COMPLIANCE WITH CPR 6.20 AND PRACTICE DIRECTON 6A?
The relevant provisions of the CPR
CPR 6.20 provides that “a document may be served by any of the following methods:
(d) fax or any other means of electronic communication in accordance with Practice Direction 6A”.
Practice Direction 6A provided:
“… Where a document is to be served by … electronic means
(i) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving —
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent”.
(emphasis added).
The short issue of construction which arises is whether documents which are addressed to an email address which had not been the subject of a service agreement, but which are automatically and instantaneously forwarded to another email address which has, meet the requirements of Practice Direction 6A.
Before answering that question, it is helpful to look at some of the other provisions which address the service of documents under the CPR.
First, the CPR contains provisions relating both to the service of claim forms (or originating process) and service of other documents. Part II of CPR 6 addresses “Service of the Claim Form in the jurisdiction” and Part III “Service of Documents other than the Claim Form in the United Kingdom”. Many of the provisions relating to service of claim forms in Part II are reflected in Part III, sometimes with variations:
i) CPR 6.20 on “methods of service” in Part III is largely the same as CPR 6.3 in Part II, save for the places at which the documents can be “left”.
ii) CPR 6.26 on deemed service in Part III largely tracks CPR 6.14 read with CPR 7.5(1)) in Part II, but whereas CPR 6.14 always provides for deemed service two business days after the completion of the relevant step, CPR 6.26 has shorter periods for some forms of service.
iii) CPR 6.27 in Part III (service by an alternative method or at an alternative place) simply adopts CPR 6.15;
iv) CPR 6.28 in Part III (dispensing with service) does not expressly require any particular quality of reason for doing so, where CPR 6.16, addressing claim forms, requires “exceptional circumstances”.
Second, various methods of service are permitted:
i) So far as claim forms are concerned, CPR 6.3(1) provides for personal service, first class post, leaving the claim form at a specified place or “fax or other means of electronic communication”. CPR 6.7 provides for service on a solicitor and CPR 6.11 for service by a contractually agreed method.
ii) So far as other documents are concerned, in lieu of the provision for service by leaving documents at one of the specified places, there is a reference in CPR 6.20 to service at the address which a party to litigation is obliged to give for service of documents in CPR 6.23....
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