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Dyson LJ: this is the judgment of the court to which all its members have contributed.
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| 1. | We heard over three days six appeals which raised points on CPR Part 6 (the rule relating to service), and CPR Part 7.6 (the rule relating to the extending of time for service of the claim form). These rules have generated an inordinate amount of jurisprudence. This is greatly to be regretted. The CPR were intended to be simple and straightforward and not susceptible to frequent satellite litigation. In this area, that intention has not been fulfilled. As a result, the explicit aims of the Woolf reforms to reduce cost, complexity and delays in litigation have been frustrated. We understand that the Civil Procedure Rule Committee will shortly embark on a review of the rules relating to service. This is a welcome development. These appeals have revealed yet again that these rules are difficult to understand and apply. In this judgment, we deal with four of the appeals.
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| 2. | Collier v Williams (paras 41-49 below) is an appeal from District Judge Mathews, and was concerned with whether a claim form had been validly served on a firm of solicitors nominated by an insurance company for that purpose. The insurers argue that because the nominated solicitors did not themselves notify the serving solicitors that they were authorised to accept service, this service was invalid. This appeal raises issues as to the proper interpretation of CPR 6.4(2) and 6.5.
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| 3. | Marshall and Rankine
v Maggs (paras 50-105 below) is an appeal from Gray J. The three points
of principle arising are (i) the meaning of "solicitor is acting for the
party to be served" in CPR 6.5(5) and (6): if a solicitor is acting but does
not confirm that he is authorised to accept service, are the methods of
service contemplated by CPR 6.5(6) available to the claimant? (ii) the
meaning of "last known residence" in the table of places for service in CPR
6.5(6): in particular is the honest and reasonable belief that a defendant
resided at an address sufficient if the defendant has in fact never resided
at that address? (iii) the correct approach to extending time for service of
the claim form under CPR 7.6(2): was the guidance by this court in
Hashtroodi v Hancock[ [2004] EWCA Civ 652(Bailii), [2004] 1
WLR 3206], being properly applied?
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| 4. | Leeson v Marsden and United Bristol Health Care NHS Trust (paras 106-134 below), is an appeal from a decision of His Honour Judge Darlow. By virtue of a respondent's notice an issue is raised which has significance well beyond CPR 6 or CPR 7.6. If a claimant has issued a "without notice" application, and the court then refuses it on paper, has the court jurisdiction to reconsider whether to make the order or is the proper course for the claimant to appeal the order? The second issue is whether, if the court has jurisdiction, the guidance given in Hashtroodi's case was properly applied.
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| 5. | Glass v Surrendran (paras 135-156 below), is an appeal from the decision of His Honour Judge Tetlow. It originally raised only the question whether the judge had exercised his discretion in accordance with Hashtroodi's case. However the appellant sought permission to amend his notice of appeal to raise the jurisdiction point referred to at para 4 above, it being a case where a "without notice" application had been refused on paper, but the district judge was prepared to reconsider the matter at a hearing requested by the claimant. The district judge then made an order allowing the application.
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| 6. | The three issues of the most general significance raised by these four appeals are (i) the proper construction of CPR 6.4(2) and 6.5, (ii) the question whether a court has jurisdiction to reconsider an application made without notice and on paper, and (iii) the question whether the guidance in Hashtroodi's case is being properly followed. As regards Hashtroodi's case, guidance on whether it is being properly applied is best considered by reference to particular facts of the cases in which the issue arises. We deal with this at paras 85-88, 131-133 and 149-155 below. But we propose to deal with the first two issues before we come to the facts of the appeals in which they arise.
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CPR 6.4, 6.5(5) and (6) |
| 7. | One of the issues arising in Collier v Williams is whether the claim form was validly served on a firm of solicitors nominated by the defendant's insurance company to accept service in circumstances where the nominated solicitors did not notify the claimant's solicitors that they had been authorised to accept service. One of the issues arising in Marshall and Rankine v Maggs is whether the solicitors who were acting for the defendant in a general sense before proceedings were issued were "acting for the party to be served" within the meaning of CPR 6.5(6) for the purposes of service of the claim form if they had not given notification to the claimants' solicitor that they were authorised to accept service of the claim form. Since the resolution of both issues involves a detailed consideration of the rules for service contained in CPR 6, it is convenient to deal with these issues at the outset before we turn to the facts of the individual cases.
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CPR 6 |
| 8. | So far as material, CPR 6 provides as follows:
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"Methods of service—general
| | 6.2 - (1) |
A document may be served by any of the following methods–
| | |
| (a) |
personal service, in accordance with rule 6.4;
| | (b) |
first class post;
| | (c) |
leaving the document at a place specified in rule 6.5;
| | (d) |
through a document exchange in accordance with the relevant practice direction; or
| | (e) |
by fax or other means of electronic communication in accordance with the relevant practice direction.
|
| | (2) |
A company may be served by any method permitted under this Part as an alternative to the methods of service set out in–
| | |
| (a) |
section 725 of the Companies Act 1985Acts (c.6) (service by leaving a document at or posting it to an authorised place);
| | (b) |
section 695 of that Act (service on overseas companies); and
| | (c) |
section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).
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Personal service
| | 6.4 - (1) |
A document to be served may be served personally, except as provided in paragraph (2)
| | (2) |
Where a solicitor–
| | |
| (a) |
is authorised to accept service on behalf of a party; and
| | (b) |
has notified the party serving the document in writing that he is so authorised,
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a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.
| | (3) |
A document is served personally on an individual by leaving it with that individual.
| | (4) |
A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.
| | (5) |
A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with–
| | |
| (a) |
a partner; or
| | (b) |
a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
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Address for service
| | 6.5 - (1) |
Except as provided by Section III of this Part ] (service out of the jurisdiction) a document must be served within the jurisdiction.
| | (2) |
A party must give an address for service within the jurisdiction.
| | (3) |
Where a party–
| | |
| (a) |
does not give the business address of his solicitor as his address for service; and
| | (b) |
resides or carries on business within the jurisdiction,
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he must give his residence or place of business as his address for service.
| | (4) |
Any document to be served–
| | |
| (a) |
by first class post;
| | (b) |
by leaving it at the place of service;
| | (c) |
through a document exchange; or
| | (d) |
by fax or by other means of electronic communication,
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must be sent or transmitted to, or left at, the address for service given by the party to be served.
| | (5) |
Where–
| | |
| (a) |
a solicitor is acting for the party to be served; and
| | (b) |
the document to be served is not the claim form;
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the party's address for service is the business address of his solicitor.
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(Rule 6.13 specifies when the business address of a defendant's solicitor may be the defendant's address for service in relation to the claim form)
| | (6) |
Where–
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| (a) |
no solicitor is acting for the party to be served; and
| | (b) |
the party has not given an address for service,
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| | |
the document must be sent or transmitted to, or left at, the place shown in the following table.
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| | |
| Nature of party to be served |
Place of service |
| Individual |
Usual or last known residence. |
| Proprietor of a business |
Usual or last known residence; or
Place of business or last known place of business. |
| Individual who is suing or being sued in the name of a firm |
Usual or last known residence; or
Principle or last known place of business of the firm. |
| Corporation incorporated in England and Wales other than a company |
Principal office of the corporation; or
Any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim. |
| Company registered in England and Wales |
Principal office of the company; or
Any place of business of the company within the jurisdiction which has a real connection with the claim. |
| Any other company or corporation |
Any place within the jurisdiction where the corporation carries on its activities.
Any place of business of the company within the jurisdiction. |
| | (7) |
This rule does not apply where an order made by the court under rule 6.8 (service by an alternative method) specifies where the document in question may be served."
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Service of claim form by the court—defendant's address for service
| | 6.13 - (1) |
Where a claim form is to be served by the court, the claim form must include the defendant's address for service.
| | (2) |
For the purposes of paragraph (1), the defendant's address for service may be the business address of the defendant's solicitor if he is authorised to accept service on the defendant's behalf but not otherwise."
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Solicitors nominated to accept service who have not confirmed in writing
that they are authorised to accept service in accordance with CPR
6.4(2)
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| 9. | It seems surprising that it is even arguable that, where a defendant (or his insurer) has nominated a solicitor for service, the business address of that solicitor should not be the defendant's address for service unless the solicitor has notified the claimant in writing that he is authorised to accept service. CPR 6.5(2) and (4) are plain and unqualified on their face. A party must give an address for service within the jurisdiction (CPR 6.5(2)); and any document to be served by post or one of the other methods stated in CPR 6.5(4) must be sent or transmitted to, or left at, the address for service given by the defendant (CPR 6.5(4)). Why should these words not be given their natural meaning? In particular, why should the fact that the solicitor whose address for service the defendant has given has not confirmed in writing that he has authority to accept service mean that it is not the address for service?
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| 10. | In Nanglegan v Royal Free Hampstead NHS Trust[ [2001] EWCA Civ 127(Bailii), [2002] 1
WLR 1043], the defendant's insurer notified the claimant's solicitor that the
claim form should be served on named solicitors and by mistake the claim
form was sent to the chief executive of one of the trust's hospitals. It
was held by this court that this was not good service. It was said that
this was the effect of CPR 6.5(2) and 6.5(4). Thorpe LJ said (para 10) in
relation to CPR 6.5(2) to (5) that "it seems right that he [the defendant]
should be in a position to nominate, at a very early stage, solicitors to
accept service on his behalf, and the obligation must then be on the
claimant to use that nomination." Buxton LJ said (para 22) that CPR 6.5(5)
does not have the effect of exempting from the CPR 6.5(4) regime the claim
form in circumstances where an address for service has been given by the
party to be served. It is true that the nominated solicitors had written to
the claimant's solicitors confirming that they were authorised to accept
service and it was common ground that CPR 6.4, being a rule specifically
dealing with personal service, had no application.
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| 11. | But in Knight v Alberto-Culver Co Ltd[ (8 April 2002)] His Honour Judge
Hickinbottom took a different view. In that case, the defendant's insurer
nominated a solicitor for service of the claim form, but the solicitor did
not confirm to the claimant that he was authorised to accept service. Judge
Hickinbottom decided that service on the nominated solicitor would not have
been good service. He held that CPR 6.4(2), requiring service on a
solicitor if, but only if, the solicitor has given written confirmation to
the party serving, is on its face not restricted to cases of personal
service: it is of general application. He found support for that conclusion
in the fact that, if CPR 6.4(2) is left out of account, CPR 6.5 and 6.13
contain no provision for service of the claim form on a solicitor other than
by the court. That, he said, would be a surprising lacuna in the rules. He
was of the view that CPR 6.4(2) defined when a solicitor was "acting" for
the purposes of CPR 6.5(5) and (6): otherwise there was no provision which
dealt with service on a solicitor who was authorised to accept service. He
also relied on a decision of Morland J in Smith v Probyn[ [2000]
All ER (D) 250] to the effect that service on solicitors who were "acting"
but not authorised to accept service was not good service. As part of his
reasoning, Morland J treated CPR 6.4(2) as being of general application.
Judge Hickinbottom also found support for his interpretation in some
practical considerations. Mere nomination by a defendant of a solicitor
as his address for service without more may have unwelcome consequences for
the solicitor. Having regard to the importance of the solicitor's role in
litigation (being "on the record" gives rise to rights and obligations), the
need for some degree of formality in the form of a written authorisation
would be understandable and desirable.
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| 12. | In the appeal of Collier v Williams, Mr Edwards relies on the reasoning of Judge Hickinbottom. We cannot accept it. In our judgment, there is no reason not to give CPR 6.5(2) and (4) their natural and ordinary meaning. Although based on the concession that CPR 6.4(2) had no relevance, we consider that the approach adopted by this court in Nanglegan was correct. CPR 6.4 is concerned with personal service only and CPR 6.4(2) is only concerned with preventing personal service. There is no need to provide for an address for service if service is to be effected personally. CPR 6.5 is concerned with service by means other than personal service and provides rules for determining the address at which such other service may be effected. CPR 6.4 and 6.5 are, therefore, dealing with fundamentally different methods of service. Neither rule refers to the other.
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| 13. | CPR 6.4(2) serves one purpose only. It is to prevent personal service where a solicitor is authorised to accept service and has notified the serving party in writing that he is so authorised, unless personal service is required by an enactment, rule, practice direction or court order. It is not its purpose to say anything about other methods of service. We should add that, if a defendant has given an address for service, including that of a solicitor, it is still open to the claimant to serve personally on the defendant unless he has received a notification in accordance with CPR 6.4(2). But if a claimant wishes to use one of the types of service referred to in CPR 6.5(4), for example, first class post, then if he has been provided with a solicitor's address as the address for service, he will not be able to post the document to the defendant himself: he must post it to the address of the solicitor.
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| 14. | In our view, therefore, the language of the rules compels the conclusion that, where a defendant gives the claimant a solicitor's address for service, the claim form may validly be served at that address by one of the permitted methods of service. Judge Hickinbottom was influenced in reaching his decision by what he saw as a lacuna in CPR 6.5 and 6.13 if CPR 6.4(2) is not of general application. The argument is that CPR 6.5 and 6.13 do not contain provisions for service of the claim form on a solicitor except by the court under CPR 6.13. Judge Hickinbottom said (para 7): "Mere nomination by the defendant himself, or authorisation without such written confirmation are, in my view, insufficient for the purposes of endowing a solicitor with the requisite power and obligation to accept service on the defendant's behalf". We note that CPR 6.13(2) does not state that the defendant's solicitor must give written confirmation that he is authorised to accept service of the claim form by the court.
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| 15. | We do not, however, accept that there is a lacuna, or one that demands recourse to CPR 6.4(2) in a context in which CPR 6.4 plainly does not apply. It is clear that the draftsman of CPR 6.5 had service of the claim form well in mind. The words in parenthesis in CPR 6.5(5) are important. They are intended to point to the circumstances where CPR 6.5 contemplates good service of the claim form on a solicitor. These words cannot have been intended merely to refer to what constitutes good service by the court. There would be little point in that. CPR 6.5 is concerned with the address where service is to be effected by the parties. CPR 6.13 is dealing with the defendant's address for service where service is to be effected by the court. CPR 6.13(2) provides that service can be effected on the defendant's solicitor "if he is authorised to accept service on the defendant's behalf, but not otherwise". In our judgment, the words in parenthesis in CPR 6.5(5) are intended to direct attention to CPR 6.13(2) and thereby to identify the circumstances when a claimant can serve a solicitor with a claim form.
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"No solicitor acting for the party to be served": CPR 6.5(6) |
| 16. | In Marshall & Rankine v Maggs, Gray J. said:
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| "56. |
That brings me to CPR 6.5 (5) and (6). In construing those rules it is necessary to have in mind also CPR 6.4 (1) and (2) as well as 6.5 (2) and (3). It appears to me that, reading all those rules together, the position is as follows: once the proceedings are on foot, ie the claim form has been served; documents which need to be served are to be served on the opposite parties' solicitor if he or she has one. If there is no solicitor acting then provided only that the opposite party has not given an address for service, service may be effected by sending the document in question to, or leaving it at, any of the places of service listed in the table to CPR 6.5.
| | 57. |
But the position is different in relation to service of the claim form. The combined effect of 6.4 (2) and 6.5 (5)(b) is, as it appears to me, to require personal service of the claim form on any defendant, even if that defendant has a solicitor acting, unless that solicitor has notified the claimant that he is authorised to accept service and has notified the party to be served of that fact.
| | 58. |
I cannot accept the suggestion of Mr. Yeo that in 6.5 (5) "acting" as to be construed to mean "instructed to accept service". That is not what 6.5 (5) says. If that was what it was intended to mean the draftsman would surely have used the words which appears in 6.4(2).
| | 59. |
Nor do I think that Mr. Yeo is right when he says that the Rules Committee cannot have intended a defendant who has not instructed a solicitor to be in a worse position than a defendant who has done so (in the sense that the service options are wider in the latter case). I accept that the paramount objective underlying the relevant rules is to ensure that the proceedings are brought to the attention of the party to be served. If that party has instructed a solicitor the address could be obtained from the solicitor. If no solicitor is acting it may be impossible to ascertain the whereabouts of the party to be served. Wider service options are, therefore, necessary to achieve the objective."
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| 17. | CPR 6.5(6) is on any view at least directed at the situation where the party to be served is a litigant in person and has not given an address for service. No solicitor is "acting" in any sense of the word. In these circumstances, it is open to the party wishing to serve to do so by personal service in accordance with CPR 6.4. But if he does not wish to use personal service, he must send, transmit or leave the document to be served at the place of service in accordance with the table set out in CPR 6.5(6). So much is clear. But what is meant by "no solicitor acting"?
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| 18. | Both Mr Yeo and Mr Butler made elaborate submissions on these difficult rules. In summary, Mr Yeo contends that "acting" in CPR 6.5(5) must bear the same meaning as in (6), which, he submits, is "acting so that the solicitor can be served" or "acting in a capacity such that service can be effected on the solicitor". Anything less will mean that a claimant will not be able safely to use the table in CPR 6.5(6) and will have to have recourse to personal service under CPR 6.4 or to apply to the court for service by an alternative method under CPR 6.8. If that were the position, CPR 6.5(6) would be emasculated. Mr Butler submits that Gray J was correct. He contends that Mr Yeo is interpolating words into CPR 6.5(6) without justification. The words "solicitor acting" mean what they say. They refer to a solicitor acting for the client in the particular case and include one who does not have instructions to accept service. CPR 6.5(6) is intended to provide a means of service of last resort. If a claimant has any doubt as to whether a solicitor is "acting" so as to take the claimant outside CPR 6.5(6), there are alternative steps that he can take: personal service; asking squarely in correspondence for an address for service; making an application to the court for an extension of time for service or for an order under CPR 6.8 or for an order requiring the provision of an address for service or possibly even an order dispensing with service.
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| 19. | We prefer the submissions of Mr Yeo. The practical effect of Mr Butler's submissions is that, where a solicitor is acting for a defendant but does not confirm that he has authority to accept service, the claimant will be unable to use the table in CPR 6.5(6). In practice, he will have to serve the claim form personally. The alternatives suggested by Mr Butler are likely to be time-consuming and uncertain of outcome. The CPR permit a wider range of methods of service than had been permitted under the Rules of the Supreme Court. Personal service remains a permitted method of service, but as Mr Adrian Zuckerman points out at para 4.20 of Civil Procedure (2003), postal service is a more satisfactory means of notification than personal service. Personal mobility is far greater than it used to be. It is difficult enough to locate a defendant's abode or place of business, without having to tie them down to a time and place where they might be served personally. Where the defendant is a litigant in person, there will be many situations in which the claimant will prefer to serve under CPR 6.5(6) rather than personally, and will be able to do so securely and effectively. But on the basis of Mr Butler's submissions (which were accepted by Gray J), where a defendant has a solicitor acting for him in a general sense, in practice a claimant will be compelled to serve personally rather than use CPR 6.5(6) in case the solicitor does not in fact have authority to accept service. We do not believe that this is what was intended. In our view, this unsatisfactory result can be avoided by interpreting the phrase "no solicitor acting" as meaning "no solicitor acting so that he can be served". We put it that way because, unless the claimant has been made aware by the defendant or his solicitor that the solicitor is authorised to accept service, the claimant would be ill-advised to serve on the solicitor. It is this factor that led Gray J. back to CPR 6.4(2) and personal service, but, as we have already said, where CPR 6.4(2) applies it prevents personal service. CPR 6.5(6) was not intended to be a trap for the unwary. If the claimant knows that a solicitor is authorised to accept service, then it is right that the methods of service set out in CPR 6.5(5) should not be available. But if the claimant is told that a solicitor is "acting", but that he is not authorised to accept service, it makes no sense to insist that personal service be used. It must have been intended that in these circumstances CPR 6.5(6) could be used. Even more obviously must it have been intended that CPR 6.5(6) could be used where the claimant does not even know that a solicitor is acting for the defendant.
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Paper applications without notice |
| 20. | In the appeals before us we have examples of solicitors seeking to apply at the last moment before the life of an issued claim form expires for extensions of time for service. The rules allow such an application to be made without notice (see CPR 7.6(4)(b)). CPR 23.8 also permits a court to deal with an application without a hearing if:
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| "(a) |
the parties agree as to the terms of the order sought;"
| | (b) |
the parties agree that the court should dispose of the application without a hearing, or
| | (c) |
the court does not consider that a hearing would be appropriate."
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| 21. | By CPR PD 23 para 11.2 it is provided that "where rule 23.8(c) applies the court will treat the application as if it were proposing to make an order of its own initiative." This is a reference to the power of the court to make orders of its own initiative under CPR 3.3. This rule provides:-
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| "3.3— |
Court's power to make order of its own initiative
| | |
| (1) |
Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
| | |
(Part 23 sets out the procedure for making an application)
| | (2) |
Where the court proposes to make an order of its own initiative–
| | |
| (a) |
it may give any person likely to be affected by the order an opportunity to make representations; and
| | (b) |
where it does so it must specify the time by and the manner in which the representations must be made.
|
| | (3) |
Where the court proposes–
| | |
| (a) |
to make an order of its own initiative; and
| | (b) |
to hold a hearing to decide whether to make the order,
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| | |
it must give each party likely to be affected by the order at least 3 days' notice of the hearing.
| | (4) |
The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
| | (5) |
Where the court has made an order under paragraph (4) –
| | |
| (a) |
a party affected by the order may apply to have it set aside, varied or stayed; and
| | (b) |
the order must contain a statement of the right to make such an application.
|
| | (6) |
An application under paragraph (5)(a) must be made–
| | |
| (a) |
within such period as may be specified by the court; or
| | (b) |
if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application."
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| 22. | It is also necessary to refer to CPR 3.1(7) which provides:-
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"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
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| 23. | It seems from the application forms before us that the standard forms at all courts contain a box which allows the person making the application to tick so as to indicate his preference for having the application considered on paper or having a hearing. In the cases before us, there are examples of without notice applications for an extension of time for service of the claim form made on paper, and applications made with a request for a hearing. Even in urgent cases, applications have been made on paper in the hope that the court could deal with them as quickly as possible. But sometimes the court has not been able to deal with them until after the date from which an extension was being sought. In other urgent cases, a hearing has been sought and the application has been heard on the day on which it was made.
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| 24. | We understand that, in relation to without notice applications made on paper, courts are taking the view that, if the order refuses the application or does not give the applicant all the relief sought, it is open to the applicant to ask the court to reconsider the matter and seek a different order, rather than appeal. This standard practice is reflected in the judicial template.
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| 25. | Mr de Navarro QC
submits that the court has no jurisdiction to reconsider the matter at the
behest of the applicant. He contends that, if an applicant makes a without
notice application which is dismissed without a hearing, the only route of
challenge open to the applicant is an appeal. Mr Sharp QC on the other hand
submits that the court has jurisdiction to reconsider the matter in such
circumstances and even has jurisdiction to entertain successive paper
applications for the same relief. He advances three alternative arguments.
The first is as follows. CPR 23.8 deals with applications without a
hearing. CPR 23.8(a) does not apply since the parties have not agreed
terms. CPR 23.8(b) does not apply because the parties have not
agreed that the court should dispose of the application without a hearing.
But CPR 23.8(c) does apply. The steps in the argument in support of the
proposition that CPR 23.8(c) applies are as follows:
|
| |
| i) |
Where a request is made to have an application disposed of without a hearing, it must be considered by the master or district judge to decide whether it is suitable for consideration without a hearing (CPR PD 23 para 2.3);
| | ii) |
Where the master or district judge agrees, the court will so inform the applicant and the respondent and may give directions for the filing of evidence (CPR PD 23 para 2.4); and
| | iii) |
Where the court so informs the parties, it follows that the court "does not consider that a hearing would be appropriate" (CPR 23.8(c));
| | iv) |
under CPR PD 23 para 11.2, where CPR 23.8(c) applies the court treats the application as if it is proposing to make an order on its own initiative; and
| | v) |
thus the order made by the court must be treated as made on the court's own initiative and under CPR 3.3 (5) the applicant as a party affected by the order, can apply to have it set aside or varied.
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| 26. | The second argument involves a direct route to CPR3.3(5).The argument is that the court has to consider whether a hearing is appropriate, and when the court concludes that it is not, it is deciding that point on its own initiative and that provides a direct route to CPR3.3(5).
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| 27. | The third argument is based on the general power to vary or revoke under CPR3.1(7).
|
| 28. | The direct route to CPR 3.3(5) seems to us unarguable. CPR 3.3 recognises that the court can exercise its powers on an "application" or "of its own initiative". CPR3.3(5) only applies where the court has made an order of its own initiative. Where a court is considering an application without notice requesting that it be dealt with on paper and decides that the application is suitable for consideration without a hearing, two things seem to us to be obvious. First the court is acting on an application and not of its own initiative, and secondly the only decision which could conceivably be said to be of its own initiative is the decision not to have a hearing. But it is not that decision which the applicant is seeking to set aside or vary.
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| 29. | We turn to the indirect route to CPR 3.3(5). We note at the outset that it is for the court to decide whether to deal with an application without a hearing: "the court may deal with an application…" (CPR 23.8). In considering the scope and meaning of CPR 23.8, we bear in mind two factors. First, generally speaking, there are huge benefits in disposing of routine applications without a hearing. The need to conduct litigation efficiently and proportionately requires that, so far as practicable, applications should be disposed of without a hearing. Routine case management decisions are obvious candidates for such treatment. Secondly, if it were decided by this court that an applicant cannot, as a party affected by an order, invoke CPR 3.3(5), but is obliged to appeal if he wishes to challenge an order made without an hearing, that would deter applicants from asking for their applications to be disposed of without a hearing. We say this because it is necessary to obtain permission to appeal, and it might be difficult to persuade the court to grant permission in many cases, since most decisions made without a hearing would be likely to involve an exercise of discretion, which would be inherently difficult to challenge on appeal.
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| 30. | What then is the position where an applicant requests the court to dispose of a without notice application on paper? If the court accedes to such a request, does it do so under CPR 23.8(b) (as Mr. de Navarro QC and Mr. Walker QC submit) or under CPR 23.8(c) (as Mr. Sharp QC submits)? The answer to this question will determine whether the court has jurisdiction to entertain an application by the original applicant to have the order set aside, varied or stayed under CPR 3.3(5). There is no doubt that the respondent to the original application can apply to set aside the order: see CPR 23.10.
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| 31. | So far as the original applicant is concerned, we can leave out of account those cases where the court grants the relief sought in full. In such a case, the applicant will not normally wish to make a subsequent application to set aside, vary or stay the order. But the court may refuse the application altogether, or grant the applicant only part of the relief that he seeks or some other relief, for example, an extension of time for a shorter period than that which he seeks. When the court makes an order in such a case without a hearing, is it acting on the footing that the applicant has "agreed that the court should dispose of the application without a hearing" under CPR 23.8(b), or is it acting on the footing that it does not consider that a hearing would be appropriate under CPR 23.8(c)?
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| 32. | We accept that the CPR are in a statutory instrument, originating from SI 1998 No 3132, so that the provisions of section 6 of the Interpretation Act 1978 apply (see sections 5 and 11). Accordingly, "unless the contrary intention appears….words in the plural include the singular". During the course of argument, we were impressed with the submission that CPR 23.8(b) applies where a court makes an order without a hearing, and that the words "the parties agree that the court should dispose of the application without a hearing" should be interpreted as including the situation where the court agrees to dispose of a without notice application on paper. But on reflection, to construe these words as applying in that situation is to give them a strained interpretation. The word "agree" in CPR 23.8(b) refers naturally to an agreement between the parties to the application, rather than to an agreement between one party and the court. Indeed, the concept of a party making an "agreement" with the court is strange. It seems to us that CPR 23.8(b) is not saying anything about the willingness or otherwise of the court to dispose of an application without a hearing. That is the subject of CPR 23.8(c).
|
| 33. | CPR 23.8(c) on its face appears to cover any situation where, regardless of what one or more of the parties may say, the court does not consider that a hearing would be appropriate. In other words, this gives the court the jurisdiction to dispose of any application without a hearing.
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| 34. | Why should CPR 23.8(b) and (c) not be construed in this way? A possible concern is that, if CPR 23.8 is so construed, there is no express provision in the rules or the practice direction to prevent an unsuccessful applicant from asking the court to reconsider the order it made on paper, rather than appeal. In our view, there is nothing objectionable in giving any party affected by an order made without a hearing the right to apply to have it set aside, varied or stayed, whether the applicant requested a hearing in the first place or not. This accords with standard practice referred to at para 24 above and reflects the fact that efficient and proportionate case management often requires that orders be made on paper, but recognizes that a party may be able to put his case more persuasively at a hearing. We can find nothing in this practice which casts doubt on what we consider to be the natural construction of CPR 23.8.
|
| 35. | But it may be said that, if this construction of CPR 23.8 is correct, there is nothing to prevent a party from returning time and again to make such an application without notice following repeated rejections of his application, whether at a hearing or on paper. If that were the inevitable consequence of the natural construction of CPR 23.8, it would cast doubt on whether it is correct.
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| 36. | We would point out, however, that there is no express provision which prevents an unsuccessful applicant from asking the court to reconsider the matter (rather than appeal) in the event that the court makes an order without a hearing even where the applicant has requested a hearing, ie in a case to which CPR 23.8(c) unquestionably applies. It follows that the mere fact that the rules and practice direction do not expressly prohibit successive applications for the same relief after orders have been made without a hearing is not a good reason for giving the words of CPR 23.8(b) and (c) a meaning that they do not naturally bear.
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| 37. | But it is not necessary to deny the court jurisdiction to entertain an application under CPR 3.3(5) where an order has been made without a hearing under CPR 23.8(c) in such cases in order to prevent repeat applications by unsuccessful applications. The solution lies in the proper exercise of the discretion conferred by that rule. We suggest that it is good practice to require any application under CPR 3.3(5) to be made at a hearing rather than on paper. If, a judge dismisses an application under CPR 3.3(5), whether on paper or at a hearing, any further application under CPR 3.3(5) should usually be struck out as an abuse of process, unless it is based on substantially different material from the earlier application (in which case different considerations will arise). We do not consider that the possibility that such further applications might be made is a good reason for adopting a strained interpretation of CPR 23.8.
|
| 38. | Before turning to the third argument, we would like to emphasise one further point. On receipt of a without notice application with a request for the matter to be disposed of on paper, the court should consider whether it is appropriate to dispose of the matter without a hearing. In our view, there is a danger in dealing with important applications on paper. An application for an extension of time for service of the claim form is potentially of critical importance, especially where the application is made shortly before the end of the 4 months period for service and where the cause of action has become time-barred since the date on which the claim form was issued. If the application is allowed and an extension of time is given, the defendant can always apply under CPR 23.10 for the order to be set aside, in which case the applicant may be worse off than if it had been refused in the first place. It is highly desirable that on the without notice application, full consideration (with proper testing of the argument) is given to the issue of whether the relief sought should be granted. Equally, if an application is made late in the day and refused on paper when proper argument would have made it proper to grant, a great deal of heart-ache can be saved. We think that applications of this kind, where time limits are running out, should normally be dealt with by an urgent hearing. We accept, however, that owing to time constraints, pressure of business and the like, it will sometimes not be possible to deal with such an application other than on paper. Even in such cases, however, consideration should be given to dealing with the application by telephone.
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| 39. | We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen[ [2003] EWHC 1740 (Ch). He said at paragraph 7]:-
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| |
| |
"The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."
|
|
| 40. | We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).
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| |
Collier v Williams |
| 41. | This was a personal injury action. The claimant suffered personal injuries in an incident on 9 April 2001. The details do not matter for present purposes. The claim form was not issued until 1 April 2004. The insurers acting for the defendant were Royal & Sun Alliance. On 29 April 2004 they wrote to the solicitors acting for the claimant saying:-
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| |
| |
"Given limitation has expired we presume you have issued and served proceedings? If so when and on whom?"
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| 42. | On 5 May 2004, the solicitors replied stating that they would serve the claim form together with particulars of claim as soon as they were in a position to do so. They said: "perhaps you would be kind enough to nominate solicitors to accept service." The insurers, by letter dated 12 May 2004, said:-
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| |
| |
"We would nominate Lyons Davidson of Victoria House, 51 Victoria Street, Bristol BS1 6Ad for the attention of Ms J Darlington. Please advise when you anticipate proceedings will be served in order that our file of papers may be sent to them without delay."
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| 43. | On 8 July 2004, the solicitors for the claimant wrote to the insurers saying:-
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| |
| |
"We anticipate serving the claim form within the next two weeks. This will be sent directly to Lyons Davidson as per your letter of the 12 May."
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|
| 44. | The claim form was sent to Lyons Davidson by letter dated 23 July 2004 and copies of that documentation were sent directly to the insurers, under cover of a letter of the same date.
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| 45. | By letter dated 6 August 2004, Lyons Davidson wrote to the solicitors for the claimant saying:-
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| |
| |
"We note that you have purported to serve the proceedings on ourselves. However, we are of the view that service has not been effected and the proceedings have not been served. We have never confirmed that we are instructed to accept proceedings and therefore the proceedings should have been served on the defendant, Miss Williams, directly. We will file our defence (copy attached in draft) but will be making an application to strike your client's claim out directly."
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|
| 46. | It is right to say that, if the claim form had not already been served, it would have expired on 1 August 2004 and the claim would have been time-barred.
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| 47. | By an application dated 6 August 2004, Lyons Davidson applied to strike out the claimant's claim in reliance on CPR 6.4(2)(a) and (b). As was made clear by the skeleton arguments supporting that application, it was the defendant's case that the rules required the claimant to obtain written confirmation from the defendant's nominated solicitor prior to trying to serve upon him or her, whether or not the defendant had stated that service should be upon the solicitor. Reliance was placed on the judgment of Judge Hickinbottom in Knight v Albert-Culver.
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| 48. | The matter came before District Judge Matthews and by an order dated 11 January 2005 the dismissed the application. The district judge granted permission to appeal and the appeal was transferred to the Court of Appeal by order of His Honour Judge Ian Hughes QC by order dated 11 April 2005. That transfer was confirmed by Neuberger LJ by order dated 17 May 2005.
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| 49. | For the reasons that we have given when discussing CPR 6.4(2) and 6.5 in paragraphs 9-15 above in our view the district judge was plainly right and we accordingly dismiss the appeal.
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Marshall and Rankine v Maggs |
| 50. | The claimants are stockbrokers. From July 1997, they were in partnership with each other, and were registered representatives of, Branston & Gothard Limited ("B&G"), then a member of the London Stock Exchange. The defendant was a client of the claimants and maintained share trading accounts with B&G. The claimants contend that pursuant to a number of share trading transactions, the defendant incurred a debt to B&G of approximately £44,500 (plus interest). In August 1998, B&G went into liquidation. By deed of assignment dated 11 April 2003, the liquidators assigned B&G's right of action against the defendant to the claimants. On 30 June 2003, the claimants' solicitors, Messrs Russell Cooke, sent a standard letter before action to the defendant. They sent it to 47 Hays Mews, London W1 J 5QE. This evoked a response dated 9 July from Messrs Jeffrey Green Russell, solicitors, saying: "We act for Mr Douglas Maggs and have for attention your letter of 30 June with enclosure. We are taking instructions and will revert to you." On 24 July, Jeffrey Green Russell wrote again saying that the claim was "entirely spurious".
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| 51. | On 28 January 2004, the claimants issued a claim form. On 27 April, Russell Cooke wrote to Jeffrey Green Russell confirming that a claim form had been issued on 28 January, and saying that before serving it, they wished to explore once again the possibility of settling the matter. They concluded: "Given the time available for us to serve the Claim Form with Particulars we would ask for a response within the next 7 days." Jeffrey Green Russell replied on the next day saying that it would not be possible to respond within 7 days and asking to be allowed 14 days in which to respond before the claim form was served. Russell Cooke acceded to this request. But by 20 May, there had been no response from the defendant or Jeffrey Green Russell. On 20 May, Russell Cooke wrote to Jeffrey Green Russell asking them to confirm by return whether they were instructed to accept service, failing which they would arrange "for the proceedings to be issued (sic) on your client at the address to which we have previously corresponded." Jeffrey Green Russell provided no such confirmation. Accordingly, on 24 May Russell Cooke sent to the defendant by first class post at 47 Hays Mews the claim form, particulars of claim and response pack. As a matter of courtesy, on the same date they sent copies of the claim form and particulars of claim to Jeffrey Green Russell. On 26 May, Jeffrey Green Russell wrote: "Our client has not resided at 47 Hays Mews for some months now. We don't know what the arrangements are for forwarding the post."
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| 52. | On 27 May, Russell Cooke sought Jeffrey Green Russell's confirmation that the defendant had been properly served, failing which the claimants would make an application to the court. No such confirmation was forthcoming. On the same day, an application was made without notice for an order that the claim form had been effectively served, alternatively that the time for service be extended by 21 days. A hearing was requested and granted. Later that day, Master Eyre ordered that receipt by Jeffrey Green Russell of the claim form and particulars of claim was "to be deemed good service". It is common ground that, since there is no jurisdiction to order alternative service retrospectively, the master's order was wrong.
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| 53. | On 28 May, Russell Cooke served the order on Jeffrey Green Russell. In June, the defendant instructed new solicitors, Messrs Forsters. On 17 June, the defendant issued an application for an order setting aside the order of 27 May, and for a declaration that service of the proceedings had not been validly effected and that the proceedings be struck out. On 29 June, the claimants made another application in substantially the same terms as the application of 27 May, but also seeking in the alternative an extension of time under CPR 7.6(3), and asking that if an extension of time were granted under either CPR 7.6(2) or (3), then service be dispensed with under CPR 6.9.
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| 54. | These applications were heard by Master Eyre. By order dated 12 October 2004, he allowed the claimants' applications and dismissed that of the defendant. He held that service had been effected under CPR 6.5(6) by posting the claim form to 47 Hays Mews. In summary, his reasons were as follows. There was no solicitor "acting" for the defendant at the relevant time. 47 Hays Mews was the defendant's "last known address" within the meaning of the table in CPR 6.5(6). The master said at para 29 of the reasons for his decision:
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| "(1) |
Any ambiguity as to the Defendant's usual or last-known place of residence is entirely of his own making. His own solicitor believed him to have resided at 47 Hays Mews (20 above), and nothing has been said by him to explain away that belief, presumably acquired as a result of his instructions.
| | (2) |
For the Defendant to object that the Claimants have failed to show sufficient energy in finding out how to serve him, he must also rely on his own solicitor's persistent failure to answer requests for information. That reliance must be contrary to any ordinary principle of fair play, as well as being the plainest possible breach of Rule 1.3.
| | (3) |
Moreover, in view of the numerous unexplained inconsistencies to which reference has already been made in the case advanced by the Defendant, the evidence of the Claimants that 47 Hays Mews was, and was known to them as, his last-known residence is unhesitatingly to be preferred. (The evidence of Miss. Nicklin and Mr. Lukas is quite incomplete, and in any event does not bear on what was known to the Claimants, and why)."
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| 55. | It followed that if no solicitor was "acting for the defendant", service of the claim form by posting it to 47 Hays Mews was good service. In any event, the master decided that the claimants were entitled to an order extending the time for service until the final date of the hearing before the master under CPR 7.6(3) and an order dispensing with service under CPR 6.9. He did not deal separately with the application under CPR 7.6(2).
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| 56. | Permission to appeal to the judge was given to the defendant by Burton J. Gray J allowed the appeal. He held that the order of 27 May could not be a valid order for service by an alternative method under CPR 6.8, since the order purported to operate retrospectively. There is no challenge by the claimants to that part of Gray J's order. The judge also held that the defendant had never lived at 47 Hays Mews and that the master's contrary finding was wrong. There is no challenge to this part of the judge's decision either.
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| 57. | But the judge reached the following conclusions which are the subject of challenge in this court:
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| (a) |
Jeffrey Green Russell was "acting" for the defendant within the meaning of CPR 6.5(6) at the time of purported service of the claim form on the defendant, although they did not have instructions to accept service of the claim form. Accordingly, CPR 6.5(6) was not available as a means of service of the claim form;
| | (b)
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47 Hays Mews was not the defendant's "usual or last known residence" within the meaning of CPR 6.5(6):these words require that the defendant should have lived at that address at some time;
| | (c) |
The court cannot exercise the power to extend time for service under CPR 7.6 and then dispense with service under CPR 6.9, since the "remedies" envisaged by these rules are intended to be alternatives;
| | (d) |
The claimants' application of 27 May was abandoned or superseded by the time of the inter partes hearing; and
| | (e) |
In any case, when considering whether or not to grant an extension of time under CPR 7.6(2), the court must ask itself whether the requirements of CPR 7.6(3)(b) and (c) have been satisfied: there is little difference between CPR 7.6(2) and CPR 7.6(3).
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Ground 1: CPR 6.5(6)
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| 58. | The issue that arises here is whether a claimant can serve a claim form by sending or transmitting it to, or leaving it at, a place for service shown in the table set out in rule 6.5(6) if the defendant has a solicitor acting for him in some capacity, but without instructions to accept service. We have already set out paras 56 -59 of Gray J's judgment (see para 16 above).
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| 59. | It will be apparent from our discussion at paras 16-19 above that in our judgment the judge reached the wrong conclusion on this point. Because the claimants had not been told by Jeffrey Green Russell that they were acting on behalf of the defendant and were authorised to accept service, there was no solicitor "acting" for the defendant within the meaning of CPR 6.5(6): there was no solicitor acting so that he or she could be served. Accordingly, the claimant was justified in serving the claim form in accordance with the table set out in CPR 6.5(6). The claimant succeeds on the first ground of appeal.
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Ground 2: CPR 6.5(6) and "usual or last known residence". |
| 60. | There was a good deal of direct evidence which showed convincingly that the defendant had never lived at 47 Hays Mews. It was on the strength of that evidence that the judge reversed Master Eyre's finding that the defendant had lived at that address. At para 55 of his judgment, he said:
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"In all these circumstances it appears to me that although I am dealing with the case on appeal, I can and should decide the issue of the validity of service on 47 Hays Mews afresh for myself. For the reasons which I have given I find that 47 Hays Mews was neither the current address of the defendant at the date of service nor was it his last known address. I accept that he has never resided at 47 Hays Mews."
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| 61. | It appears from para 46 of the judgment that Mr Yeo submitted that "provided such reasonable steps have been taken [viz to ascertain what is the last known address of a defendant], an address may qualify as a defendant's last known address if it is honestly believed to be such, even if that is not in fact the case." The judge did not deal with this submission explicitly. As we read his judgment, however, he seems to have regarded the fact that the defendant had never lived at 47 Hays Mews as decisive of the issue.
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| 62. | As we have already said, the appellants do not challenge the judge's finding that the defendant had never lived at that address.
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| 63. | The meaning of the
phrase "last known residence" has caused some difficulty. In Smith v Hughes[ [2003] EWCA Civ
656(Bailii), [2003] 1 WLR 2441], this court held that service at a
defendant's last known residence was good service even if the claimant knew
that the defendant was no longer living there. [At para 103], the court said:
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"As we have said, there is no suggestion in this case that Whitworth Close was not Mr Hughes's last known residence. If the MIB had disputed the claimant's claim that this was Mr Hughes's last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant's actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal."
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| 64. | The question of what
the claimant has to show in order to establish that the address was the
"last known residence" arises for decision in the present case. In
Mersey Docks Property Holdings v Michael Kilgour[ [2004] EWHC 1638
(TCC)], His Honour Judge Toulmin QC said:
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| "62. |
I have therefore the two alternatives: either to construe "last known place of business" as the last place known to the claimant (the claimant's contention), or alternatively the last known ascertainable place of business or, put another way, the last place of business known generally, which is the defendant's primary contention. The defendant's contention is that these words envisage the situation where the person to be served no longer has a usual place of business and the proceedings must therefore be served on the last known place of business.
| | 63. |
It seems to me that the proper construction is last known place of business in the sense of last place of business known to the claimant. This is, in itself, a relatively onerous provision, since in order to acquire the requisite knowledge a party must take reasonable steps to find out at the date of service what is the current place of business or the last place from which the party carried on its business. It will be a matter of evidence whether or not a party has discharged the obligation to have the requisite knowledge at the time of service. On balance, this seems to me to be a fairer and more workable test than one which refers to an objective standard of general knowledge or ascertainability.
| | 64. |
I am confirmed in this view both by the fact that a similar test was operated under the previous rules involving similar wording with little difficulty, and by the fact that although they did not address the issue directly, this appears to have been implicit in the approach taken by Dyson LJ in Cranfield v Bridge and Mummery LJ in Arundel v Khakher."
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| 65. | We have been referred to an article by Mr Zuckerman, "Service of the claim form" (2005) Civil Justice Quarterly 401. Mr Zuckerman wrote at p 404:
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"While it is right to reject whimsical knowledge, care needs to be taken to avoid imposing conditions that may make the process of service more difficult and which would give rise to satellite litigation about compliance. The rule, as Dyson L.J. observed above, "is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied". It follows from this that the test must not make it too cumbersome for claimants to serve a defendant who has failed to provide an address for service. It should be borne in mind that a test that makes it easy for claimants to comply with the time limit for service of the claim form and thereby avoid being statute barred does not disadvantage defendants. A defendant who has not received the claim form would find no difficulty in setting aside any default judgment entered. Lastly, one should also bear in mind that one of the aims of the CPR was to cut down the potential for litigation over compliance with service requirements that existed in the past. Put together, these considerations argue for a liberal interpretation of the "last known residence". Accordingly, they suggest a test that merely requires claimants to show that they believed the address in question to be the defendant's last known residence and that such belief was not patently unreasonable, in the sense that the claimant did not turn a blind eye to facts that suggested otherwise. Unfortunately, there is no clear and authoritative pronouncement on this point with the result that much effort and expense have been invested in unnecessary disputes."
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| 66. | Mr Yeo submits that the correct interpretation of "last known residence" is that advocated by Mr Zuckerman, or alternatively that tentatively suggested by this court in Smith v Hughes, which is not materially different from that propounded by Judge Toulmin QC in the Mersey Docks Property Holdings case. On this basis, he submits, the judge should have found that service was effected on the defendant's last known residence because (a) the first claimant honestly believed that 47 Hays Mews was the defendant's last known residence and that belief was not patently unreasonable, or alternatively (b) that address was the defendant's last known residence on the basis of the knowledge that the first claimant had, or that, exercising reasonable diligence, he could have had.
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| 67. | Mr Yeo contends that, in construing the meaning of the phrase "last known residence", the court should not indulge in fine philosophical notions of "knowledge", and should adopt a practical common sense approach which does not impose unfair burdens on a claimant.
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| 68. | No authority has been cited to us in which the court has had to decide whether an address can be a person's last known residence if it was never his residence at all. As Mr Butler points out, the rule could have been expressed in terms of "the address reasonably believed to be the usual or last residence of the individual". The use of the concept of knowledge was deliberate. There is no other area of the law where the concept of knowledge is equated with that of belief. No authority has been cited to us in support of the proposition that a piece of information which is false can nevertheless be known. As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.
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| 69. | We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.
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| 70. | It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.
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| 71. | What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of "last known residence", we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. What state of mind in the server is connoted by the words "last known"? In our judgment, Mr Zuckerman's interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.
|
| 72. | For the reasons that we have given, however, the claimant failed to effect good service by sending the claim form to 47 Hays Mews on 24 May 2004. In the result, it was necessary for him to persuade the court to grant him an extension of time for service under CPR 7.6. It is to the issues relating to that rule that we now turn.
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| |
Ground 3: extension of time and dispensing with service |
| 73. | The master extended the time for service of the claim form until 30 September 2004 and made an order under CPR 6.9 dispensing with service. At para 61 of his judgment, Gray J said that it was inappropriate to make both orders: "They are intended as alternative and not conjunctive remedies. If a requirement has been dispensed with there is no point in extending time for carrying it out, and vice versa".
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| 74. | Mr Yeo submits that this is an unjustified fetter on the court's power to dispense with service. If, as in the present case, the defendant has already acknowledged service (albeit conditionally and subject to their jurisdictional challenge), it serves no useful purpose to require the claimants to re-serve the proceedings.
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| 75. | The judge was plainly right to say that, if a court dispenses with service under CPR 6.9, there is no point in granting an extension of time for service under CPR 7.6. But the converse is not necessarily correct. It does not follow from the fact that a court grants an extension of time for service that it should then necessarily not dispense with service. Whether the court decides to exercise its discretion under CPR 6.9 will depend on the circumstances of the case. If the defendant has already received the claim form (although it has not been properly served in accordance with the rules), the court may well dispense with service on the grounds that, once a decision has been made to extend the time for service, there is no point in requiring the claimant to serve the document.
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| 76. | On the facts of the present case, the master granted an extension of time until 30 September 2004 and then dispensed with service. The defendant was already in receipt of the relevant documents. There was, therefore, no point in both requiring re-service and dispensing with service. Accordingly, the judge reached the right conclusion, and there is nothing in the third ground of appeal.
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Grounds 4-9: extension of time for service of the claim form |
| 77. | By way of introduction, it may be helpful to summarise the issues raised by the various grounds of appeal. These are:
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| |
| i) |
Ground 4: whether the judge was right to hold that it made "very little difference" whether the entitlement to an extension of time was considered under CPR 7.6(2) or (3);
| | ii) |
Ground 5: whether the judge was right to hold that the application of 17 June 2004 for an extension of time under CPR 7.6(2) was "abandoned and superseded" by the later application of 29 June;
| | iii) |
Grounds 6-9: whether the judge adopted the correct approach to his consideration of the master's decision in relation to the question whether the pre-conditions stated in CPR 7.6(3)(b) and (c) were satisfied;
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Ground 5 |
| 78. | It is logical to start with ground 5. The judge held that the application of 27 May 2004 (which was made within the period of 4 months for service of the claim form), was abandoned and superseded by the later application of 29 June (which was made after the end of the 4 months period). His reason was that:
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| "65. |
If the earlier application was still subsisting in June 2004, it is difficult to understand why a fresh application for an extension was thought to be necessary, and particularly difficult to understand why it should have referred to CPR 7.6 (3)."
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| 79. | The judge did not dwell on the point, however, because it appeared to him to make little difference whether the application for an extension of time was made under CPR 7.6(2) or 7.6(3).
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| 80. | The first application was undoubtedly made under CPR 7.6(2). There was some debate as to when an application to extend the time for service is "made" within the meaning of CPR 7.6(2). Mr Butler submits that it is when the application is heard by the court and not when the notice of application is issued. We are in no doubt that the application is "made" when the notice is issued and not when it is heard. It would be surprising if it were the latter date, since that is something over which the applicant has no control once the application is issued. But the issue is resolved by CPR 23.5 (to which Mr Butler responsibly drew our attention) which provides: "Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time". In fact, the application was issued and heard by the court on 27 May in any event.
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| 81. | Mr Butler submits that the earlier application under CPR 7.6(2) was abandoned because it was superseded by the later application for relief under CPR 7.6(2) and/or (3) and the later application was not made without prejudice to the existence of the earlier application. In short, the later application was meaningless if the earlier application for the same relief was still on foot.
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| 82. | In our view, it is not correct to analyse this in terms of abandonment. The application of 29 June was a fresh application. It did not purport to be an application to vary the earlier order. Even if the claimants had purported to apply to vary the order of 27 May under CPR 3.1(7), there were no circumstances which could have justified the exercise of that power see paras 39 and 40 above. It was simply a free-standing application for an order that (i) service was properly effected in accordance with CPR 6.5; (ii) "in the event that the claimants are now out of time for an extension of time under CPR 7.6(2) (as applied for by the Claimants in their Application Notice dated 27 May 2004) the Claimants be given an extension of time to re-serve these proceedings under CPR 7.6(3); and (iii) service of these proceedings be dispensed with under CPR 6.9": see para 3 of the witness statement of the first claimant. The court had no jurisdiction to entertain an application under CPR 7.6(2) after the expiry of the 4 months period.
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| 83. | But the master also had before him the defendant's application to set aside his earlier order. The hearing of that application was not a review of the earlier decision, but, in effect, the hearing afresh of the claimants' application of 27 May. Once the defendant had issued his application to set aside, the claimants did not need to issue a fresh application under CPR 7.6(2). But the fact that they did cannot change the nature of the hearing that was to take place before the master. Of course, they did need to issue a fresh application under CPR 7.6(3).
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| 84. | In short, faced with the defendant's application to set aside the earlier order, the master had to decide whether the claimants were entitled to the order that they sought on 27 May. This included resolving the question whether they were entitled to an extension of time under CPR 7.6(2). The master did not do this. He merely decided (but without giving any reasons) that the claimant's were entitled to an extension of time under CPR 7.6(3).
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Ground 4 |
| 85. | Mr Yeo submits that by refusing to recognise that there is a substantial difference between rule 7.6(2) and (3), the judge misdirected himself and misunderstood the decision of this court in Hashtroodi's case. The judge cited extensively from the judgment. The following passages are relevant:
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| "17. |
Moreover, there are reasons internal to CPR r 7.6 itself which show that it was not intended to impose any threshold condition on the right to apply for an extension of time under CPR r 7.6(2). The contrast between rule 7.6(2) and rule 7.6(3) is striking. Rule 7.6(3) empowers the court to grant an extension of time to a claimant who applies after the end of the specified period only if the conditions stated in paragraphs (a) or (b) and (c) are satisfied. The reference to conditions in rule 7.6(3), and the absence of any such reference in rule 7.6(2) must have been deliberate. Against the background of the case law on Ord 6, r 8, and in view of the introduction of new and stringent conditions in rule 7.6(3), it cannot have been intended that rule 7.6(2) should be construed as being subject to a condition that a "good reason" must be shown for failure to serve within the specified period, or indeed subject to any implied condition.
| | 18. |
In the absence of any such condition, therefore, the power must be exercised in accordance with the overriding objective: see CPR r 1.2(b). What does that mean in practice? We have no doubt that it will always be relevant for the court to determine and evaluate the reason why the claimant did not serve the claim form within the specified period. This has nothing to do with the fact that under the former procedural code, the threshold requirement was that the plaintiff should show good reason. It is because the overriding objective is that of enabling the court to deal with cases "justly", and it is not possible to deal with an application for an extension of time under CPR r 7.6(2) justly without knowing why the claimant has failed to serve the claim form within the specified period. As a matter of common sense, the court will always want to know why the claim form was not served within the specified period. As Mr Zuckerman says in Civil Procedure, p 180, para 4.121: "For it is only fair to ask whether the applicant is seeking the court's help to overcome a genuine problem that he has encountered in carrying out service or whether he is seeking relief from the consequences of his own neglect. A claimant who has experienced difficulty should normally be entitled to the court's help, but an applicant who has merely left service too late is not entitled to as much consideration. Whether the limitation period has expired is also of considerable importance. If an extension is sought beyond four months after the expiry of the limitation period, the claimant is effectively asking the court to disturb a defendant who is by now entitled to assume that his rights can no longer be disputed."
| | 19. |
Whereas, under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so (the CPR r 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve. The weaker the reason, the more likely the court will be to refuse to grant the extension.
| | 20. |
If the reason why the claimant has not served the claim form within the
specified period is that he (or his legal representative) simply overlooked
the matter, that will be a strong reason for the court refusing to grant an
extension of time for service. One of the important aims of the Woolf
reforms was to introduce more discipline into the conduct of civil
litigation. One of the ways of achieving this is to insist that time limits
be adhered to unless there is good reason for a departure. In the
Biguzzi[ [1999] EWCA
1972(Bailii), [1999] 1 WLR 1926 Lord Woolf MR said, at p 1933,
paragraph 50]: "If the court were to ignore delays which occur,
then undoubtedly there will be a return to the previous culture of regarding
time limits as being unimportant."
| | 21. |
It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim: see CPR r 16.2(1)(a). These are generous time-limits."
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| 86. | At para 66, Gray J said that it appeared to him to make "little difference" whether the application for an extension of time was made under CPR 7.6(2) or (3). It was no doubt for this reason that at para 67 he said that the questions to be asked were whether the claimants could satisfy the requirements of CPR 7.6(3)(b) and (c): he gave no separate consideration to CPR 7.6(2).
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| 87. | In our judgment, he was
wrong to treat the CPR 7.6(2) issue as if it would be determined by his
decision on the application under CPR 7.6(3). There is a clear difference
between the two sub-rules. CPR 7.6(3) is subject to pre-conditions: relief
cannot be granted if the conditions are not satisfied. Under CPR
7.6(2), there are no pre-conditions, so that relief can be granted under
that rule even if the court is not satisfied that the claimant has taken all
reasonable steps to serve and has acted promptly. The decision in
Hashtroodi's case highlights the importance of the reason why
the claim form was not (if it was not) served within the 4 months period.
We would agree that the CPR 7.6(3) requirements are relevant to the
exercise of the discretion given by CPR 7.6(2). But the fact that the
pre-conditions stated in CPR 7.6(3)(b) and (c) are not satisfied is not
necessarily determinative of the outcome of an application under CPR 7.6(2).
That is clear from the passages set out at para 87 above. When deciding
whether to grant an extension of time under CPR 7.6(2), the court is
required to consider how good a reason there was for the failure to serve in
time (assuming that the application is dealt with after the end of the 4
months period): the stronger the reason, the more likely the court will be
to extend time; and the weaker the reason, the less likely. This involves
making a judgment about the reason why service has not been effected within
the 4 months period. It is a more subtle exercise that that required under
CPR 7.6(3) which provides that unless all reasonable steps have been
taken, the court cannot extend time.
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| 88. | In these circumstances,
we are of the view that the judge adopted the wrong approach. He should
have applied CPR 7.6(2) and considered the matter in accordance with the
guidance given in Hashtroodi's case. Mr Yeo advances a number
of elaborate arguments in support of the submission that, even if the judge
was right to treat the matter as governed by CPR 7.6(3), he reached the
wrong conclusion in relation to CPR 7.6(3) and therefore even more obviously
reached the wrong conclusion on the basis of CPR 7.6(2). We shall consider
these arguments in outline, because in our view, since the judge failed to
deal with the matter under CPR 7.6(2), it falls to this court to exercise
afresh the discretion given by that rule. This we do at paras 95-105 below.
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Grounds 6-9: challenge to the approach of the judge to CPR 7.6(3) |
| 89. | The judge dealt with the CPR 7.6(3) issue at paras 67-80. He concluded that the claimants had not shown that they had taken all reasonable steps to serve the claim form but had been unable to do so (CPR 7.6(3)(b)) or that they had acted promptly in making their application (CPR 7.6(3)(c)). As regards CPR 7.6(3)(b), he said (para 77) that there were steps which it was open to the claimants, through their solicitor, to take to effect service which they failed to take. These included: asking the defendant for his address and in the event of not obtaining an answer seeking an order (CPR 6.5(2)); attempting to serve the defendant personally (enquiries at 47 Hays Mews would almost certainly have revealed his actual address); or serving the defendant at his Checkendon address (see further para 96 and 97 below).
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| 90. | As regards CPR 7.6(3)(c), the judge said (para 79) that he was not persuaded that the claimants acted promptly. There could be no criticism of the timing of the application of 27 May, but that application did not result in an extension of time. The second application was not made until 29 June, a full month after the expiry of the 4 months period. The only explanation advanced by Mr Yeo for the delay in making this further application is that until 17 June, when the defendant applied to set aside the order of 27 May, there was no need for the claimants to do anything, since they had the benefit of that order.
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| 91. | Mr Yeo first submits
that the judge adopted the wrong approach to his examination of the decision
of the master. As we have said, the master had granted an extension of time
for service under CPR 7.6(3) until the date of the order (30 September
2004). Mr Yeo submits that, as an appellate court, the judge should not
have determined afresh (by way of rehearing) the question whether the CPR
7.6(3) pre-conditions were satisfied. He contends as follows. Questions of
whether the pre-conditions are satisfied are not questions of primary fact.
Rather, they require evaluative conclusions to be reached by the tribunal in
the light of the primary facts. The judge appears to have acknowledged this
when he said: "these appear to me to be questions of fact, albeit secondary
fact" (para 75). Mr Yeo submits that evaluations of this kind are analogous
to the exercise of a discretion and should be viewed as such by an appellate
court. In support of this, he relies on the observations of Clarke LJ in
Assicurazioni Generali v Arab Insurance[ [2003] 1 WLR 577
para 16].
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"Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."
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| 92. | We accept that what Clarke LJ said is of application to findings that the pre-conditions in CPR 7.6(3) are or are not satisfied. But where a judge holds that the master's findings of primary fact are unsustainable, the factual basis of the master's evaluation is undermined. In those circumstances, the judge is not inhibited by the master's evaluation of the facts: he must carry out his own evaluation. The same applies where the factual basis on which a decision-maker's exercise of discretion is made: the reviewing person must exercise the discretion afresh. In the present case, the judge differed |