White v Weston
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SACHS |
| Judgment Date | 08 March 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0308-2 |
| Date | 08 March 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0308-2
Lord Justice Russell
and
Lord Justice Sachs
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Judge Baxter at West London County Court 26th July, 1967.
Mr RAYMOND I. KIDWELL (instructed by Messrs Stevensons) appeared on behalf of the Appellant (Defendant).
Mr H. TUDOR EVANS, Q.C., and Mr JONATHAN R. PLAYFORD (instructed by Messrs Hextall, Erskine & Co.) appeared on behalf of the Respondent (Plaintiff).
On the 23rd April 1966 the plaintiff and the defendant were involved in a car collision. The plaintiffs says that it was the defendant's fault. The defendant denies this. They exchanged names and addresses. The defendant gave his address as No. 46, Northbrook Road, Ilford, Essex, where he then lived. The defendant filled in a claim form for his insurers, the National Motor & Accident Insurance Union Limited via the broker, and the plaintiff got in touch with a Royal Automobile Club solicitor, Izod. Correspondence followed about liability between the defendant's insurers and Mr Izod; we have not seen it, but on one side liability of the defendant was asserted, and on the other denied. On the 7th October 1966 the plaintiff's present solicitors wrote to the insurers as follows: "Dear Sirs, Your letter of the 22nd Juneaddressed to Mr J.B. Izod has now been passed to us for attention as we are instructed in place of Mr Izod on behalf of Miss White. Our instructions are to commence proceedings, which we have accordingly done in the West London County Court, and as a matter of courtesy we enclose herewith a copy of the particulars of claim" It seems from this that the matter had gone to sleep since June. This letter was not answered by the insurers, who took no action on it.
In the meantime, in May 1966, the defendant changed his job and moved his residence to Romford. He informed the insurance brokers of his new address in September 1966. He was not in touch with the plaintiff or her solicitors.
The plaintiff's solicitors, as indicated in their letter, started proceedings in the West London County Court in the normal way by filling in a praecipe for an ordinary summons against a defendant out of the district, filling in as the defendant's address the Ilford address. The claim was for £200.
The court prepared and issued the summons and sent it to the Ilford court for that court to affect service. Here mystery begins. The summons bears a rubber stamp dated 28th October 1966 signed by the Ilford bailiff in these terms: "Unable to meet defendant. He resides at address given and would get summons by post". How this can have come about, I cannot imagine, since he had left six months ago. Pursuant to Order 8, Rule 8 (3), the Ilford Registrar put another rubber stamp on the summons: "Send summons by post", and another Ilford Official posted it to the defendant at the Ilford address on the 28th October 1966, filling in a form on the summons to that effect.
From then on there is something of a mystery about what happened to the summons and two other letters sent to the defendant by the county court at the Ilford address. I have tried to reconstruct the course of events by a study of the various postmarks, rubber stamps and other notations on these envelopes, but have arrived at no sure conclusion. Fortunately this does not matter. What does matter is that the summons (and the other two communications)ever reached the defendant, came back to the Ilford County Court some time late in June 1967, and found their way into the West London County Court file of the case.
In the meantime the case was heard at West London County Court on the 25th November 1966, and the judge being satisfied that negligence was established, gave judgment for the plaintiff for £134 damages and costs on scale 4, which ultimately taxed at £86. Of all this the defendant knew nothing.
Ultimately the defendant got wind of this by meeting the plaintiff at a magistrates' court where he was charged with some offense connected with the incident. The defendant on the 16th June 1967 applied to the county court for the judgment to be set aside under Order 37, Rule 2 (1) on the ground that he had not been served It would appear that he failed to persuade the judge of his ignorance of the proceedings, and his application was dismissed with costs. Armed with better evidence, the defendant applied again on the 18th July 1967 to set aside the November 1966 judgment. There was a difficulty in renewing an application under the same rule which had already been refused. This time no reference was made to any Rule, and the application was to set aside the November judgment on the ground that the summons was sent by post to an address that the defendant had long since vacated. According to the county court judge, this application was made under Order 37, Rule 1.
At this further hearing the county court judge believed the defendant's evidence, and this belief was fortified by the discovery by the judge in the court file of the envelopes already mentioned and the summons. He accordingly on the 26th July 1967 ordered that the November order be set aside, and a new trial be had. He made no order as to costs of that application. But he did not merely set aside the November judgment; he ordered that the costs of the November hearing should be costs in the cause.
The question in this appeal is whether the county court judge was right according to established practice to put the defendant at risk of having to pay the plaintiff's costs of the Novemberhearing, of which the defendant had in fact no notice. The defendant says that the county court judge should have done no more than set aside the November judgment in toto, leaving the plaintiff to bear her own coats of that hearing in any event.
For the defendant it is said that there was never any service of the proceedings, and that he never heard of them, and that consequently it cannot possibly be right that in any circumstances he should pay any costs of the November hearing. Whether there was service involves consideration of the County Court Rules.
Service of a summons such as this is dealt with by Order 8, Rule 8, in cases in which the plaintiff does not want to take upon himself the task of effecting personal service. If the plaintiff completes Form 6 on the back of the praecipe requesting postal service (which was not done here) that course is taken unless the registrar otherwise directs; Rule 8 (2). Form 6 reads as follows: "I hereby request that the defendant (blank) be served with the summons in this action by post and I hereby certify that (a) I have reason to believe that the summons, if sent to the defendant at the address stated in the praecipe, will come to his knowledge within seven days after the day on which the summons would be delivered in the ordinary course of post. (b) I understand that if judgment is obtained as a result of postal service and is afterwards set aside on the ground that the service did not give the said defendant adequate notice of the proceedings, I may be ordered to pay the costs of setting aside the judgment". Otherwise service is effected under Rule 8 (1) which reads, so far as at present material "Subject to the provisions of any Act and the following paragraphs of this Rule…. service of an ordinary summons shall be effected (a) by delivering the summons to the defendant personally; or (b) by a bailiff of the court delivering the summons…. at the residence of the defendant or, where the defendant is the proprietor of a business, at his place of business". Such service was not effected here, and Rule 8 (3) was operated. That reads...
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