Wilkey and Another v British Broadcasting Corporation and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE BUXTON,LORD JUSTICE CARNWATH |
| Judgment Date | 22 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1561 |
| Docket Number | A2/2001/2868 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2002 |
[2002] EWCA Civ 1561
Lord Justice Simon Brown
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Buxton
Lord Justice Carnwath
A2/2001/2868
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)
MR A MONSON (instructed by Osborne Jones & Co, Llantwit Major CF6 1X2) appeared on behalf of the Appellants
MR J RUSHBROOKE (instructed by BBC Litigation Department, London W12 7TS) appeared on behalf of the Respondents
This is yet another in the series of appeals to this court concerning the proper application of CPR Parts 6 and 7 to the service of claim forms.
Godwin v Swindon Borough Council [2002] 1 WLR 997 , a decision of this court on 10 October 2001, decided, first, that the deemed day of service of a document as derived from the table in rule 6.7(1) is not rebuttable by evidence proving that the claim form had actually been received by the defendant on some earlier day; and, secondly, that the court cannot dispense with service under rule 6.1(b) or rule 6.9 where such a dispensation would constitute a retrospective extension of time for service, which is specifically forbidden by rule 7.6(3).
Anderton v Clwyd County Council and other appeals [2002] 3 All ER 813 , a decision of this court on 3 July 2002, decided that the court can, however, dispense with service in cases where the claimant has sought to serve the claim form by a permitted method of service and the form has in fact been received by the defendant before the end of the period for service. These are conveniently called "category 2" cases, a category not previously recognised by the authorities. The Court of Appeal's ratio for distinguishing category 2 cases from category 1 cases was (page 830b-c):
"[The claimant's] case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove the service of the claim form in accordance with the rules."
The present is a category 2 case, and this court is now being asked, pursuant to a limited permission to appeal which I myself gave on 31 July 2002, to exercise its own discretion under rule 6.9 to dispense with service in accordance with the rules.
The appeal is from Gray J's order on 5 December 2001, allowing the respondent's appeal against the district judge's order on 9 August 2001 dismissing their application to set aside service of the claim form on the ground that it was deemed to have been served out of time, and in the result dismissing the action.
Since Gray J heard the case after Godwin and before Anderton, it was not then recognised that an exception from the Godwin ruling arose in category 2 cases. Gray J therefore was not invited to, and did not, exercise what Anderton subsequently established to be a rule 6.9 discretion in the case. His judgment, therefore, cannot be faulted. It is not now suggested, however, that the exercise of discretion in this case should be remitted to the judge below; rather it is agreed that we ourselves should exercise it.
With that brief introduction, let me now sketch in the most directly relevant facts of the case. The appellants' claim is for damages for libel and malicious falsehood arising out of a radio broadcast on 2 November 1999 in which the respondents were highly critical of the appellants' product, a self-adhesive plastic coating applied to CDs to protect them from scratches and spillages. The product was invented by the first appellant, and its patent and registered trademark were owned by the second appellant. The broadcast suggested that the sound quality of the CD was adversely affected by the coating and ended with the words "It doesn't work. What a con!"
The next day, following complaint by the appellants' solicitors, the respondents broadcast a qualified apology stating:
"We are happy to accept that this [the suggested effect of the coating upon the sound quality] is not the case on normal domestic hi-fi equipment."
On 9 November 1999 the respondents asked the appellants to refrain from issuing proceedings for "a few weeks" to allow them to investigate the complaint, but on 1 February 2000 they made plain that any proceedings would be defended on the basis either of justification or of fair comment.
There can be no question but that the appellants were then guilty of considerable delay. Proceedings were not in the event issued until 31 October 2000, just two days before the expiry of the one-year limitation period applicable to both the pleaded causes of action, and they were not served until 28 February 2001, the very last day of the four-month period allowed for service of the claim form. At 2.00 pm on 28 February 2001 the claim form was hand-delivered by courier to the respondents' legal department, which had previously agreed to accept service.
As Godwin later established, service was irrebutably deemed to have been effected on 1 March 2001, a day out of time. On 23 March 2001 the respondents applied to have the service of the claim form set aside and the action dismissed. On 1 August 2001 the appellants, by cross-application, sought orders (1) that the claim form be treated as served on 28 February, that is, in time; alternatively, (2) that service be dispensed with under rule 6.1 and/or rule 6.9; alternatively, (3) that the limitation period be disapplied under the provisions of section 32A of the Limitation Act 1980 in respect of proposed further proceedings.
On 9 August 2001 District Judge North at Cardiff found for the appellants on the first limb of their application, holding that the delivery of the claim form on 28 February was good service that day: the deeming provisions of rule 6.7(1) were rebuttable and on the facts of this case were rebutted.
The respondents appealed against that decision, and whilst their appeal was outstanding Godwin was decided. Godwin, of course, wholly undermined the ground of the district judge's order and it appeared also to defeat the second limb of the appellants' application, namely to dispense with service under rule 6.9, an application which the district judge had not in fact dealt with since on his ruling such dispensation was unnecessary. On the respondents' appeal to Gray J, however, the appellants sought to uphold the district judge's order on the different ground that the method of service used satisfied the rule as to personal service. In addition they pursued the third limb of their original cross-application, namely for an order disapplying the limitation bar in respect of fresh proceedings.
In the course of hearings, respectively on 5 and 12 December 2001, Gray J rejected all the appellants' arguments and accordingly allowed the respondents' appeal against the district judge's order.
As already indicated, the present appeal, brought in the light of Anderton, is confined to the application under rule 6.9 for service to be dispensed with. There is no question now of the deeming provision being rebuttable; no question of personal service having been effected in time; no question of a fresh action being brought with the limitation period disapplied.
Rule 6.9 reads, so far as relevant:
"(1) The court may dispense with service of a document."
The most directly relevant passages in this court's judgment in Anderton are these:
"[56] … As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin's case. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin's case that r 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in r 7.6(3) and thereby validate late service of the claim form.
[56] In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin's case, between two different kinds of case.
[57]...
To continue reading
Request your trial
-
Phillips v Symes; Nussberger v Phillips
...that the power to do so "is only exercisable retrospectively in exceptional circumstances". At [18] of his judgment in Wilkey –v- British Broadcasting Corporation [2003] 1 WLR 1, Simon Brown LJ (with whom the other two members of the court agreed) suggested that, in cases where late servic......
- The Burns-Anderson Independent Network Plc v Francis Henry Wheeler
-
Olafsson v Gissurarson
...[2001] EWCA Civ 1478, [2002] I WLR 997, Anderton v Clwyd County Council (No 2) [2002] EWCA Civ 933, [2002] 1 WLR 3174, Wilkey v BBC [2002] EWCA Civ 1561, [2003] 1 WLR 1, Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656, [2003] 1 WLR 2441, Hashtroodi v Hancock [2004] EWCA Civ 652, [20......
-
Aktas v Adepta
...whether the first claims failed or not. None of them did. There is no suggestion of any abuse on the part of claimants. 62 Wilkey v. British Broadcasting Corpn [2002] EWCA Civ 1561 , [2003] 1 WLR 1 concerned a claim in libel. By the deemed service rules, the claim form was served one da......
-
Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse
...See s. 160(1B) and s. 1(1B).64 See s. 160(2)(a) and s. 1(4)(a).65 See s. 160(2)(b) and s. 1(4)(b).66 See s. 160(2)(c).67 [2003] 1 WLR 1736.68 [2004] UKHL 43. This case concerned two conjoined appeals: Sheldrake v DPP and Attorney-General’s Reference (No. 4 of 2002). For ease of reference I ......
-
A Tort‐Based Approach to Damages under the Human Rights Act 1998
...[4 .14].58 Anufrijeva n16 aboveat[57],[65];Green¢eld n1aboveat[9],[19], [26];Cullen vChief Constableof theRoyalUlster Constabulary [2003] 1 WLR 1763 at [82], [84].ATort-Based ApproachTo HRA Damages758 r2009 The Author. Journal Compilationr20 09 The ModernLaw Review Limited.(2009) 72(5) this......
-
Choice, Privacy and Publicly Funded Legal Advice at Police Stations
...be impaired in a police station no less,and possibly more than, in a lawyer’s o⁄ce.72 Cullen vChiefConstable ofthe Royal Constabulary [2003] 1 WLR 1763 at [5].73 Re McE [2009] UKHL 15at [23].74 6J (italics added).75 n 73 above at [25].76 B.Than ki (ed),TheLaw of Privilege(Oxford: OUP, 2006)......