Weston v Bates and another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 15 March 2012 |
| Neutral Citation | [2012] EWHC 590 (QB) |
| Docket Number | Case No: HQ 10D02911 |
| Court | Queen's Bench Division |
| Date | 15 March 2012 |
[2012] EWHC 590 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ 10D02911
Simon Myerson QC (instructed by Ford & Warren Solicitors) for the Claimant
Jacob Dean (instructed by Carter Ruck) for the First Defendant
Hearing dates: 7 March 2012
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.
The First Defendant ("Mr Bates") lives in Monaco. The question raised by Application Notices issued by Mr Bates on 18 February 2011, and by the Claimant ("Mr Weston") on 2 June 2011 relates to whether he was (or should be treated as having been) validly served with proceedings commenced by the issue of a claim form on 30 July 2010. This is a libel action in respect of publications made in August 2009 and on 22 September and 19 October 2009. The claim form was therefore issued on the last day before the expiry of the one year limitation period in respect of the first publication. Mr Weston served the Second Defendant within the jurisdiction on 30 November 2010.
CPR Part 7 .2 provides that:
"(1) Proceedings are started when the court issues a claim form at the request of the claimant. (2) A claim form is issued on the date entered on the form by the court".
CPR Part 7 .5(2) provides that
"Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue."
Accordingly, on 22 December 2010 Master Leslie made an order upon Mr Weston's application granting him permission to serve on Mr Bates out of the jurisdiction in Monaco "the claim form" amongst other documents.
Section IV of Part 6 is headed "SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS OUT OF THE JURISDICTION". It includes the following:
" Scope of this Section
6.30 This Section contains rules about –
(a) service of the claim form and other documents out of the jurisdiction;
(b) when the permission of the court is required and how to obtain that permission; and
(c) the procedure for service….
Service of the claim form where the permission of the court is required
6.36 In any proceedings to which rule 6. 32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply….
[there then following sections on how to apply for permission and other matters]
Methods of service – general provisions
6.40
(1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction…
Where service is to be effected on a party out of the United Kingdom
(3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served –
(a) by any method provided for by –
(i) rule 6.41 (service in accordance with the Service Regulation);
(ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or
(iii) rule 6.44 (service of claim form or other document on a State);
(b) by any method permitted by a Civil Procedure Convention or Treaty; or
(c) by any other method permitted by the law of the country in which it is to be served.
(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served."
Solicitors for Mr Weston chose to follow rule 6.40(3)(c). They were entitled to do that, as is not in dispute. What is in dispute is whether the manner by which they chose to do this was effective.
They took steps to serve Mr Bates in Monaco through local agents in accordance with a procedure permitted by the local law. A translation was a requirement of that procedure. Mr Collins, the solicitor for Mr Weston, sets out in his third witness statement what he did pursuant to Master Leslie's order. He forwarded all the papers to the agent in Monaco by e-mail, and only be e-mail. Nothing was sent by post. So he did not send an original sealed claim form, or a colour copy, but only a black and white electronic copy. It seems that he in fact sent two versions of the black and white copy of the claim form. But nothing turns on the fact that the better version was not in the package left for Mr Bates to collect. A print out of the poorer copy was in the package.
Since Mr Bates was not at home when the agents attempted to serve him there, the documents were left at the Town Hall for collection. But the only version of the claim form which was included was the black and white printout of it, together with a translation, which formed part of an Exhibit to the witness statement of Mr Collins. That was the witness statement made in support of the application made to the Master. The printout shows the English court seal with the date 30 July 2010 (in black and white). It also shows the English court stamp "Defendants Copy". By this time the document also bore on each of its two pages the red seal affixed to it by the Huissier in Monaco, and the blue seals affixed to it by the translator.
What a claim form must contain, and in what form it must be, is set out in detail in Practice Direction 7A. The only provision of the Practice Direction relating specifically to a claim form that is to be served out of the jurisdiction is para 3.5, but that does not assist on the question before the court. However, in the context of the Limitation Act 1980, and other statutes for the purpose of which the date on which proceedings are started is relevant, the Practice Direction includes the following:
"5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is 'brought' for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court."
CPR Part 11 provides:
"(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have"
Mr Bates by his Application Notice asks for an order pursuant to CPR Part 11.1 that the court has no jurisdiction to try the claim against him, or that it declines to exercise any jurisdiction which it may have. The ground identified in the witness statement of his solicitor, Mr Pepper, is that the CPR and the Order of Master Leslie permitted service of the claim form, and not a copy.
Mr Weston by his Application Notice asks the court to declare that the steps taken by him amount to valid service, or, in the alternative, for an order that the steps taken by him amount to good alternative service of the claim form, and that he have retrospective permission to serve the claim form by any alternative method, or for an extension of time.
For Mr Weston it is submitted that what was served was the claim form within the meaning of the CPR and Master Leslie's order. Neither the CPR nor the Order requires that the claim form served be one upon which the court has put the court's seal. In the alternative he asks for an extension of time pursuant to CPR 7.6(1) and (3). These provide:
" Extension of time for serving a claim form
7.6 (1) The claimant may apply for an order extending the period for compliance with rule 7.5…
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; …."
Mr Weston submitted that the steps already taken had clearly brought the claim to the attention of Mr Bates, as is not in dispute. So in the further alternative he asks for an order under CPR 6.15( 1) or (2), alternatively CPR 6.16, which provide:
"6.15 (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
6.16 (1) The court may dispense with service of a claim form in exceptional circumstances.
(2) An application for an order to dispense with service may be made at any time".
Although not referred to in the witness statements or in the skeleton arguments put before Master McCloud at the hearing in June 2011, in the argument before me Mr Myerson relied on a further provision of the CPR, namely Part 3.10:
" General power of the court to rectify matters where there has been an error of procedure
3.10 Where there has been an error of procedure such as a failure to comply with a rule or...
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