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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Robertson v Banham & Co (A Firm) [1996] EWCA Civ 860 (31st October, 1996)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/860.html
Cite as: [1996] EWCA Civ 860, [1997] 1 WLR 446, [1997] WLR 446
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ROBERTSON v. BANHAM and CO. (a firm) [1996] EWCA Civ 860 (31st October, 1996)
IN
THE SUPREME COURT OF JUDICATURE
QBENI
95/1080/E
COURT
OF APPEAL (CIVIL DECISON)
ON
APPEAL FROM MR DAY QC
(sitting
as a Deputy High Court Judge
)
Royal
Courts of Justice
Strand,
London WC2
Thursday
31st October 1996
B
e f o r e :
LORD
JUSTICE ROCH
and
MR
JUSTICE CONNELL
----------
ROBERTSON Plaintiff
(Respondent)
-v-
BANHAM
& CO.
Defendant
(a
firm)
(Applicant)
---------
Transcript
of a Handed Down Judgment of
Smith
Bernal Reporting Limited
180
Fleet Street London EC4A 2HD
Tel:
0171 831 3183 Fax: 0171 831 8838
(Official
Shorthand Writers to the Court)
---------
MR
R DENMAN
(instructed by Palmer Hart Solicitors, St George's Chambers, 28 Broad Street,
Bristol BS1 2HG) appeared on behalf of the Plaintiff/Respondent
MR
P LAWRENCE
(instructed by Wansbroughs Willey Hargrave, 103 Temple Street, Bristol, Avon
BS99 7UD) appeared on behalf of the Defendant/Applicant
---------
J
U D G M E N T
(As
Approved by the Court)
---------
Thursday
31st October 1996
JUDGMENT
LORD
JUSTICE ROCH:
This
is an appeal from the decision of Mr Douglas Day QC sitting as a Deputy Judge
of the High Court given on the 11th November 1994. A month earlier on the 5th
October 1994 Master Rose had ordered that a judgment obtained by the plaintiff,
Mrs Robertson, against the defendants, two solicitors who were formerly in
partnership, in default of a defence be set aside. The Master had also ordered
that the plaintiff’s costs including the costs of entering judgment were
to be paid by the defendants forthwith. There was to be a Legal Aid Taxation
Direction of the plaintiff’s costs. The Master gave directions for the
subsequent conduct of the action.
In
reaching the decision on which those orders were based, the Master determined
that the default judgment which the plaintiff had obtained on the 18th February
1994 had been obtained regularly. The defendants appealed that finding and the
costs order made in the plaintiff’s favour based upon that finding.
The
Deputy High Court Judge on the 11th November 1994 held that the default
judgment of the 18th February 1994 had been obtained irregularly and he varied
the orders made by Master Rose by ordering that the defendants were to have
their costs of having the default judgment set aside as from the date of their
application to do so, that is to say from the 5th September 1994, including the
costs before the Master and before the Deputy Judge, but that that order was
not to be enforced without leave of the court. The Deputy Judge directed a
Legal Taxation of the plaintiff’s costs and gave the plaintiff leave to
appeal.
The
background of this case is that the plaintiff started an action against two
solicitors, Ian Southward and George Banham by writ on the 13th January 1994.
The writ described those two solicitors as “Banham & Co. (a
firm).” The writ was accompanied by a statement of claim and a form of
acknowledgement of service. Mr Southward and Mr Banham had practised as
solicitor-partners under the style Banham and Co at 28, The Cheese Market,
Salisbury.
On
the 14th January 1994 at approximately 5.45 a.m., the plaintiff put the
envelope containing the writ, the statement of claim and the form of
acknowledgement of service together with a covering letter, the envelope and
letter being addressed to “Ian Southward”, through the letterbox of
the premises of the Griffiths Banham Partnership at Griffin House, Salisbury.
Later that morning the envelope and its contents came to the attention of Mr
Southward, and before the morning was over Mr Southward had informed his
professional negligence insurers that he had received that writ and statement
of claim.
Unbeknown
to the plaintiff as at the 13th and 14th January 1994, the firm of Banham and
Co. had been dissolved, Mr Banham going into retirement and Mr Southward with a
Mr RL Griffiths forming the Griffiths Banham Partnership. The name Banham was
kept because Mr Banham was to act as a consultant. Banham & Co had been
disolved on the 4th January 1994.
It
was Mr Southward who had dealt with the plaintiff’s affairs when she was
a client of Banham and Co.
The
statement of claim alleged breach of contract and negligence on the part of
Banham and Co. which had caused the plaintiff loss and damage. In the
statement of claim the plaintiff claimed damages to be assessed and interest.
The alleged breaches of contract and negligence related to the
defendants’ handling of an action brought by Mrs Robertson against
another firm of solicitors whom she had retained prior to her going to Banham
and Co.
On
the 18th
February
1994 the plaintiff signed judgment in default of defence.
On
the 26th January 1994 the defendants acknowledged service of the writ and
statement of claim. That acknowledgement indicated that the defendants
intended to contest the action.
The
issue at the hearings before the Master and before the Deputy High Court Judge
was: was the judgment of the 18th February 1994 regularly obtained by the
plaintiff? If the writ was duly served on Mr Southward on the 14th January
1994, then that judgment was regularly obtained as a judgment in default of
defence. If the writ was not duly served until Mr Southward entered an
appearance on the 26th January 1994, when, by virtue of that appearance to the
writ being entered service of the writ was deemed to have taken place on that
day, see Order 10 Rule 1(5), then the judgment in default was irregular. In
that situation the defendants would have had until the 23rd February 1994 to
serve a defence and the entering of judgment by the plaintiff on the 18th
February would have been five days premature.
The
grounds of appeal are first, that the judgment obtained was regular because
service of the writ by delivering it through the letterbox of the practising
address of one of the partners of the defendant firm was due service.
Therefore service occurred either on the 21st January 1994, deemed service, or
on the 14th January 1994 the date on which the plaintiff could prove that the
writ had come to the actual knowledge and attention of Mr Southward. The
alternative ground of appeal is that the defendants submitted to the
jurisdiction of the court because they did not make any application under Order
12 Rule 8 of the Rules of the Supreme Court and they are consequently prevented
from alleging that the writ was not duly served. By not applying to the court
to set aside service of the writ or alternatively to make a declaration that it
had not been duly served, the defendants waived the irregularity in service.
The third ground of appeal, which was not pursued before us, was that even if
the judgment in default of the 18th February 1994 was irregular, a proper
exercise of the Deputy Judge’s discretion would have been to make a costs
order in the plaintiff’s favour.
It
was common ground that a defence is to be served before the expiration of 14
days from the time limited for acknowledging service, RSC Order 18 Rule 2, and
that the time for acknowledging service is 14 days after service of the writ,
including the day of service, RSC Order 12 Rule 5. Consequently for the
judgment of the 18th February 1994 to be regular, due service of the writ must
have occurred on or before the 21st January 1994.
The
first submission made by Mr Denman on behalf of the plaintiff is that the
plaintiff duly served the defendants by placing the envelope addressed to Mr
Southward through the letter box of Griffin House, which was his usual and, to
her, last known address. The plaintiff could prove that the copy had reached
Mr Southward on that day. Consequently service of the writ had been duly
effected on the 14th of January 1994, pursuant to the rules of the Supreme Court.
But
for the decision of this court in
Marsden
-v- Kingswell Watts
[1992] 2 All ER 239, I would without hesitation accept that submission made on
behalf of the plaintiff. Mr Lawrence, for the defendants in a powerful
argument, submitted that the decision in that case was correct, or
alternatively it was a decision of the Court of Appeal and binding on us as it
did not fall within any of the exceptions to the principle that the Court of
Appeal is bound to follow its own decisions as stated by the Court in
Young
-v- Bristol Aeroplane Company Ltd
[1944] 1 KB 718. I propose to set out the reasons why I would accept the first
submission made by Mr Denman, absent the decision in
Marsden’s
Case
,
and then go on to consider the question whether this court is bound by that
decision.
Order
81 Rule 1 allows persons alleged to be liable as partners to be sued in the
name of the firm of which they were partners when the cause of action accrued.
Service of originating process where partners are sued in the name of the firm
is governed by Order 81 Rule 3, unless the partnership has, to the knowledge of
the plaintiff, been dissolved before an action against the firm is begun, Order
81 Rule 3 (3). In this case, it was agreed that on the 13th and 14th January
1994, the plaintiff did not know of the dissolution of Banham and Co., on the
4th January 1994, although the plaintiff clearly knew that Mr Southward had
moved from 28A, The Cheese Market, Salisbury to Griffin House.
Order
81 Rule 3 enables a writ suing partners in the name of the firm to be served in
three ways so as to be deemed due service on the firm, that is to say on all
the partners whether or not any member of the firm is out of the jurisdiction.
As I understand Order 81 Rule 3, it is not concerned with a writ suing one or
more partners where those partners are named as defendants as opposed to being
sued in the name of the firm. The first method is by service on any one or
more of the partners. As the note in the White Book points out, this may be
personal service on the partner or in accordance with Order 10 Rule 1 (2). The
second method is service at the principal place of business of the partnership
within the jurisdiction on any person having at the time of service the control
or management of the partnership business there, Order 81 Rule 3(1)(b). This
is service on all the partners although the person served may not be a partner.
Putting it through the letterbox at the principal place of business of the
partnership will not satisfy this part of the rule. The third method is by
ordinary 1st Class post to the firm at the firm’s principal place of
business within the jurisdiction.
Order
81 Rule 3(2) is helpful in construing the Rules in that it shows that when
service is on the firm by 1st Class post to its principal place of business,
the date of service is deemed, unless the contrary is shown, to be the 7th day
after the date on which the copy writ was sent to the firm, and that an
affidavit of service has to contain a statement of opinion by the deponent that
the copy of the writ sent by 1st Class post to the firm’s principal
address will have come to the knowledge either of a partner or of a person
having the control or management of the partnership business at its principal
place of business. Those provisions do not apply to service under Order 81
Rule 3(1)(b) because service takes place at the moment when the person having
control or management of the partnership business at its principal place of
business receives the copy writ.
In
this case the plaintiff relied upon Order 81 Rule 3(1)(a) claiming that the
writ had been properly served on one of the partners, Mr Southward on the 14th
January. That in turn raised the question whether the events of the 14th of
January constituted due service on Mr Southward under Order 10 Rule 1. Here
the plaintiff relied upon Order 10 Rule 1 (2)(b). That rule so far as is
relevant reads:
"A
writ for service on a defendant within the jurisdiction may, instead of being
served personally on him, be served ....
(b) If
there is a letterbox for that address, by inserting through the letterbox a
copy of the writ enclosed in a sealed envelope addressed to the defendant."
“That
address” refers to the defendant’s “usual or last known
address”.
Under
Order 10 Rule 1(3) it is provided:
"Where
a writ is served in accordance with paragraph (2).........(b) the date of
service shall, unless the contrary is shown, be deemed to be the 7th day
........ after the date on which the copy was ...... inserted through the
letterbox for the address in question;
(b) Any
affidavit proving due service of the writ must contain a statement to the
effect that:
(1) In
the opinion of the deponent ...... the copy of the writ ..... inserted through
the letterbox for the address in question will have come to the knowledge of
the defendant within 7 days thereafter ...."
Certain
matters are established by decisions of this court in respect of those rules.
First, that “last known address” means the defendant’s last
address known to the plaintiff, see
Forward
-v- West Sussex County Council
[1995] 1 WLR 1469 CA. That authority also establishes that the two
alternatives to personal service provided in paragraph (2) of Order 10 Rule 1
are:
"allowed
because they found a good working presumption (rebuttable, but still a good
working presumption) that they will bring the proceedings to the notice of the
defendant"
See
per Sir Thomas Bingham MR at page 1477C. It is therefore open to the defendant
to show that the copy writ never came to his notice, see
Forwards
Case
and it is open for the plaintiff to establish that the copy writ came to the
defendant’s notice prior to the 7th day after service by post or
insertion through the letter box,
Hodgson -v- Hart District Council
[1986] 1 WLR 317 CA.
The
issue remains whether service on Mr Southward at Griffin House, the address at
which, in January 1994, he was practising as a solicitor, was service at
“his usual or last known address”? In answering that question in
my opinion a court should start from the position that the purpose of the rules
is that service should take place when the originating process is brought to
the notice of the defendant. That was the approach of the House of Lords in
Barclays
Bank of Swaziland Ltd -v- Hahn
[1989] 1 WLR 506. In that case the bank issued a writ against the defendant
who, with his wife lived in various parts of the world. The defendant came
within the jurisdiction from time to time when he lived with his wife in a flat
rented by his wife. At about 1530 hours on the 14th April 1987, believing that
the defendant was at that flat or would be there on that day, the Bank inserted
a copy of the writ in a sealed envelope through the letterbox. It is to be
observed that this was a residential as opposed to a business address. The
defendant arrived in this country at 1727 hours, to be met by the caretaker of
the flat who warned him of the envelope that had been put through the letter
box. As a consequence the defendant did not go to the flat, spending the night
in a hotel and returning to Switzerland the following day. The Bank claimed
that there had been good service under Order 10 Rule 1(2) (b) in that they had
complied with that rule and could show that the copy writ had come to the
defendant’s attention on that day. The defendant maintained that as he
had not gone to the flat nor had he physically received the copy of the writ,
there had not been due service of the writ upon him. The Court of Appeal
upheld the Bank’s case ruling that the words “within the
jurisdiction” in Order 10 Rule 1(2) described the writ and its service
and not the defendant and consequently the defendant had been duly served. The
House of Lords upheld the decision of the Court of Appeal but for different
reasons, accepting the defendant’s proposition that he had to be within
the jurisdiction at the time when the writ was served. In his speech, with
which the other members of their Lordship’s House agreed, Lord Brightman
said at page 511 C:
"My
Lords, I entirely applaud the common sense of the decision of the Court of
Appeal, but I prefer to reach the same destination by another route. I think
that the clue to the problem is to be found in paragraph (3)(a) of Order 10
Rule 1. This provides, inter alia, that the date of service is to be the 7th
day after the date on which the copy writ was inserted through the letterbox
for the address in question “unless the contrary is shown”. It
follows from the exception that there may be circumstances where the date of
service is not the date of letterbox insertion. I therefore ask myself, in
what circumstances might a plaintiff or defendant be able to show that the 7th
day after the date of insertion through the letterbox was not the date of
service; do such circumstances exist in the present case; and if so, what date
of service takes the place of the deemed date of service?
My
Lords, in the case of letterbox service I can think of nothing which is capable
of giving content to the expression “unless the contrary is shown”
save that it refers to the defendant’s knowledge of the existence of the
writ, nor was the appellant’s counsel able to suggest any other solution.
Indeed, it is the obvious solution because the purpose of serving a writ is to
give the defendant knowledge of the existence of proceedings against him; that
is exactly what a defendant acquires when a writ is served on him personally;
and it is exactly what I would expect the procedural rules would require when
service is impersonal and not personal.
So
I answer the first question which I have posed by saying that a plaintiff or a
defendant may displace the deemed date of service by proving that the defendant
acquired knowledge of the writ at some other date."
His
Lordship then went on to point out that it was clear, despite the
defendant’s denial, that the defendant had known what was in the envelope
which he had been told had been put through the letterbox of his wife’s
flat on that afternoon.
With
the principle that the purpose of the rules is that the originating process
should be brought to the attention of the defendant in mind, what is meant by
“his usual or last known address?” Is that phrase to be confined
to residential addresses? Free of authority I have no doubt that it should not
be so confined. First, examination of other parts of the rules such as Order 6
Rule 5, makes it clear that where the draftsman of the rules wishes to confine
the address to a party’s place of residence he does so in express terms;
and that the same is true where the draftsman intends to refer to a business
address. Second in the case of a professional person the address known to the
erstwhile client who wishes to sue the professional person will be the address
at which he practises his profession. A professional person may be careful to
ensure that clients do not know his home address, not wishing to be troubled
with work at his home, and, in some case, not wishing to be troubled or to have
members of his family troubled by difficult clients at his home. As My Lord,
Mr Justice Connell observed during argument, if a professional man is being
sued in his professional capacity, then his address last known to the plaintiff
will inevitably be his business address. It will also be his usual address as
a professional man. Service by post or by insertion through a letter box at
such an address causes no unfairness because it is always open to him to prove
that the originating process did not come to his attention.
Next
there are a number of authorities which support a purposive construction of the
rules, albeit that those authorities are not authorities on Order 10 Rule 1.
I bear in mind the observation of Sir Thomas Bingham MR in
Forward’s
Case
at page 1477A:
"But
none of these authorities (the authorities to which that court was referred in
that case) concerns RSC Order 10 Rule 1 as it now reads or formerly read, and
where (as here) the court is required to construe a detailed Statutory Code it
is in our view dangerous to seek to apply statements made with reference to
different statutory Codes. That might be necessary if the Statutory Code in
question were not clear."
Those
authorities start with
R
-v- Braithwaite
[1918] 2 KB 319 CA. The issue in this case was whether a summons for
non-payment of a general district rate issued under Section 256 of the Public
Health Act 1875 was properly served. Section 267 of that Act provided:
"Notices,
Orders and any other documents required or authorities to be served under this
Act may be served by delivering the same to or at the residence of the person
to whom they are respectively addressed."
Section
1 of the Summary Jurisdiction Act 1848 provided:
"Every
such Summons shall be served ... upon the person to whom it is so directed, by
delivering the same to the party personally or by leaving the same with some
person for him at his last or most usual place of abode."
The
summons was served, not by leaving it at the ratepayer’s dwelling house,
but by leaving it at the house where the ratepayer carried on his practice as a
solicitor. This court held that for the purposes of the service of such a
summons the ratepayer’s place of business was to be treated as his
“residence” within the meaning of Section 267, although he did not
sleep there; and that service of such a summons at his place of business under
Section 267 was good. In the course of his judgment at page 328, Warrington LJ
said:
“Then
can it be served at the place of business? Independent of authority, I should
say Yes. Such an expression as residence which has no technical meaning, may
properly be construed having regard to the objects of the Act in which it is
found ...... The only possible object in the case of the Statute in question
is that the documents mentioned may be brought to the knowledge of the
defaulter. For this purpose I can see no reason why a man's private house or
lodging should be selected as the place of service exclusively of his place of
business. In fact, seeing that the section authorises service by post, I
should say that there was much more chance of the documents getting by accident
into the fire or the wastepaper basket at the private house or lodging than at
his business premises where part of the routine of the day is to open and read
all letters.”
At
page 331 Scrutton LJ said:
“What
then is the purpose of the provision by which a summons need not be personally
served but may be left at “the place of residence”? Obviously that
it shall get to the person summoned by being left at a place where it is likely
to reach him. His place of business would usually be at least as suitable a
place for that purpose as the place where he sleeps; frequently more so, as
more care is usually taken of business than of private documents. On
principle, therefore, I see no reason why the place of business should not be
place of residence for the purpose of serving this summons ....”
then
His Lordship went on to set out authorities to that effect.
This
case was followed in
Borough
of Morecombe and Heysham -v- Warwick
reported in [1958] 9 P&C R 307 a case which involved the service of an
Enforcement Notice under the Town and Country Planning Act 1947. This was a
decision of the Divisional Court. In a short judgment Lord Goddard CJ said:
“R
-v- Braithwaite & ors
is clear authority for the proposition that when it comes to the point of the
service of Notices, and service is required to be at the last place of abode,
service at the last place of business is good service. In my opinion it is
perfectly clear that the Notice is served if it is left at the address of the
person to be served.”
In
Stylo
Shoes Ltd -v- Prices Tailors Ltd
[1960] 1 Ch 396, a case involving the service of a Notice to Quit under the
Landlord and Tenant Act 1927 Section 23(1) of which allowed for such a Notice
to be served:
“either
personally or by leaving it for him (that is the tenant) at his last known
place of abode .....”
Wynn-Parry
J held, in a case where the tenant company sought a declaration that the
Landlord's Notice had not been properly served because it had been sent to the
tenant company's principal place of business in Huddersfield after the tenant
company had transferred its principal place of business to Leeds, arguing that
their former principal place of business in Huddersfield was not their
“last known place of abode”, that there had been valid service. In
the case of a limited company “place of abode” meant “place
of business”. It is true that Wynn-Parry J considered that Section 23(1)
of the 1927 Act was permissive and that although there were certain modes of
service set out in the sub-section they were not to be regarded as being
exhaustive, see page 405-6. The importance of that decision is that it is
another instance of a court adopting a purposive approach to the construction
of a statutory provision governing service of process.
The
final authority is another Court of Appeal decision in
Price
-v- West London Building Society Ltd
[1964] 1 WLR 616. This was another case under the Landlord and Tenant Act
1954. Again it was a landlord's notice terminating a business tenancy. The
Notice was sent to the business premises, was received and signed for by an
employee of the tenant but owing to an oversight the tenant himself did not
receive the notice until six days after its delivery. The issue was whether
the Counter Notice served by the tenant was within time. The Counter Notice
was within time if time ran from the date on which the tenant himself received
Notice but was out of time if it ran from the date six days earlier when the
Notice was delivered to the business premises. Again the question of service
was governed by the terms of Section 23(1) of the Landlord and Tenant Act 1927
as applied by Section 66(4) of the Landlord and Tenant Act 1954. The argument
for the tenant was that the business premises were not his “place of
abode” and therefore service was not effected until the Notice was
received by him personally. This court consisting of Wilmer, Dankwerts and
Diplock LJJ held that a phrase such as “place of abode” had to be
construed with reference to the subject matter with which it was concerned in
each case. As Part 2 of the Landlord and Tenant Act 1954 was concerned solely
with business premises, its sensible and natural meaning was not the residence
of the tenant but his business address. It was thus plainly the intention of
the Act to include a tenant's business address and not to confine “place
of abode” to his personal residence. In this case the authorities of
R
-v- Braithwaite, Morecombe and Heysham -v- Warwick, and Stylo Shoes Ltd
were considered and followed, Dankwerts LJ at page 622 describing them as:
“a
formidable body of authority showing that the phrases “residence”
or “last known place of abode” may very well include a business
address if the context is appropriate.”
The
Lord Justice did go on to observe that it was not always appropriate so to
construe the phrase “place of abode”.
These
authorities were cited with approval by this court in
R
-v- Southend Magistrates Court, Ex parte Kingsway Furniture (West Thurrock) Ltd
decided on the 22nd May 1996 which concerned the service of a summons on a
company for non-payment of rates.
Here
the case is stronger because the phrase is “usual or last known
address”. When a solicitor is being sued as a solicitor, his usual
address as a solicitor must be the address at which he practises. That will
probably be the only address known to the person who wishes to serve the writ.
That will be the address at which he is most likely to receive the writ. That,
in my judgment, is the ordinary and natural meaning of those words. The Rules
could have used the words “his place of residence” or
“residential address”. A person can have, as Mr Lawrence
conceded, more than one “usual address”.
Since
the conclusion of submissions in this case, the industry of Mr Lawrence has
brought to our attention a further authority in this court, namely that of
Austin Rover Group Ltd -v- Crouch Butler Savage Associates
[1986] 3 All ER 50. There the plaintiffs wished to sue the defendants, a firm
of architects, and the question was whether a writ addressed to the firm at
what had been the firm’s principal place of business and posted first
class, which was then redirected to the firm’s new premises in Wheeleys
Road, Birmingham and received there by one of the partners, Mr Cliff had been
duly served. This court considered the terms of Order 81 Rule 3(1)(c) and
Order 10 Rule 1(2)(a), although the interpretation of Order 10 Rule 1(2)(a) was
not necessary to the decision reached by the court. However, May LJ observed
at page 56 F of the report:
"I
would if it were necessary be prepared to hold that the new address in Wheeleys
Road, Birmingham was within the rule, Mr Cliff’s usual address at that
time."
This
authority was not cited to the court in
Marsden’s
Case.
In
Marsden’s
Case
the defendants were a firm of solicitors who had acted for the plaintiffs when
they bought a plot of land. The plaintiffs issued a writ in the name of the
firm and on the 19th June 1989, the last day for service of the writ before its
expiry, the plaintiffs caused a copy to be put through the letterbox at the
address of the defendant firm by a process server. The District Registrar and
the judge on appeal from the District Registrar struck out the writ as not
having been duly served during the period of its validity. Parker LJ in his
judgment, agreeing with Leggatt LJ, decided the matter by reference to Order 10
Rule 1(3)(a) that the date of service shall be deemed to be the 7th day after
the date on which the copy was inserted through the letterbox unless the
contrary is shown. Here service of the writ would only have occurred within
the period of validity of the writ if the plaintiffs could have established
that the writ had come to the attention of a partner in the firm on the 19th
June. The plaintiffs could not prove that, the evidence indicating that the
insertion through the letterbox had occurred after close of business. That was
the second ground on which Leggatt LJ held that the service was bad, see page
243 J to 244 B. The District Judge and the judge in that case had made these
findings: first, that the documents were placed in the letterbox of the
defendant firm on the 19th June after the close of business on that day and
second, that the documents were found on the 20th June by the relevant partner
of the defendant firm. The argument before this court on behalf of the
Marsdens was that because they could show that the relevant partner had
received the copy writ within the seven day period, the deeming provision in
Order 10 Rule 1(3)(a) had no application and the moment of service became the
moment when the envelope had been inserted through the letterbox. This court
rejected that submission holding that the moment of service was when the copy
writ came to the attention of the relevant partner. In the course of his
judgment at page 242 B Leggatt LJ said:
"Mr
Engleman accepts, I think, that no service by insertion of a copy writ through
the letterbox was possible on the firm as such, but he argues that service by
that means could properly be effected upon any partner, or at any rate any
partner normally working at that address, because it would constitute the usual
or last known address of such a partner. I do not agree. In order to
constitute service on a firm under Order 81 Rule 3(1)(a) the service on a
partner must be such as would constitute service on him under Order 10 Rule 1
if he were a personal defendant. If service by post or by insertion through
the letterbox is chosen it must be effected at “his usual or last known
address”. In my judgment that means at the place where he lives or he
was last known to have lived. It does not mean at the address of the
partnership, otherwise Order 81, Rule 3 would have been so worded as to allow
for insertion of a copy writ through the letterbox “at the principal
place of business of the partnership within the jurisdiction.” The mode
of service attempted was in my judgment, therefore, bad."
I
respectfully disagree with this interpretation of the Rules. I do so with
considerable hesitation considering the composition of the Court in the
Marsden
Case.
Order
81 Rule 3(1)(a) contemplates, as the note in the White Book accepts that
service on any one or more partners under Order 10 Rule 1 of a writ naming the
partnership by its business name is to be deemed due service on all the
partners although some are out of the jurisdiction. Order 81 Rule 3(1)(b) is
not concerned with service on a partner or with delivery of the copy writ to a
partner, still less with placing an envelope through the letterbox of a
partner’s usual or last known address. It is concerned with delivery of
the copy writ to the person having the management or control of the partnership
business at its principal place of business. The terms of that Rule cannot
shed any light on the meaning of “usual or last known address” in
Order 10 Rule 1(2). The terms of an order which is concerned with partners
cannot control the interpretation of a rule which affects service on persons
who are not partners. There was no need for order 81 Rule 3(1)(b) to have been
“so worded as to allow for insertion of a copy writ through the letterbox
“at the principal place of business of the partnership within the
jurisdiction””. Order 81 Rule 3 (1)(b) was not concerned with
service on a partner; it was concerned with service on the firm by giving the
copy writ to a person who managed or controlled the partnership business at its
principal place of business. That rule is quite separate from service on
“one or more partners”. It is an additional method of service to
those set out in Order 10 Rule 1. It is not intended to limit or cut down the
methods of service under Order 10 Rule 1. Consequently, in my judgment, it
does not follow from the wording of Order 81 Rule 3(1)(b) that the words in
Order 10 Rule 1(2) “usual or last known address” must be confined
to a partner’s place of residence.
Are
we bound by the decision of this court in
Marsden’s
Case
?
In my judgment we are not. That case had to be decided against the appellants
on the ground set out at the end of the judgment of Leggatt LJ and in the
short judgment of Parker LJ which concerned the interpretation of Order 10 Rule
1(3)(a) and was not concerned with the meaning of Order 10 Rule 1(2). The
observations of Leggatt LJ on the interpretation of the phrase “his usual
or last known address” were not necessary to the decision in that case.
Those observations were made in an extempore judgment, following argument in
which His Lordship had not been referred to the authorities which I have
endeavoured to summarise in this judgment or to the speech of Lord Brightman in
Barclays Bank of Swaziland Ltd -v- Hahn
(supra).
Consequently,
in my judgment this appeal succeeds on the first submission made by Mr Denman.
The
second submission made by Mr Denman on behalf of the plaintiff would not have
lead me to allow this appeal. It was to the effect that assuming service on
Mr Southward was irregular, the defendants had nevertheless waived the
irregularity by failing to make application under Order 12 Rule 8(1) for an
order setting aside the writ or service of the writ or a declaration that the
writ had not been duly served. Order 12 deals with acknowledgement of service
of a writ or an originating summons. Rule 7 of that order provides that
acknowledgement by a defendant of service of a writ shall not be treated as a
waiver by him of any irregularity in the writ or service of the writ. Rule
8(7) of that order reads:
"Except
where the defendant makes an application in accordance with paragraph (1), the
acknowledgement by a defendant of service of a writ shall, unless the
acknowledgement is withdrawn by leave of the court under Order 21, Rule 1, be
treated as a submission by the defendant to the jurisdiction of the court in
the proceedings"
In
those circumstances the writ is deemed to be duly served on the date on which
the defendant acknowledged service by virtue of Order 10 Rule 1 (5). The rule
is not concerned with deemed service but with deemed due service. As Mr
Lawrence submitted that Rule is expressly premised on the writ having not been
duly served. The word “so” is important because it stresses that
it is regular service which is deemed to occur on the date on which a defendant
acknowledges service.
I
accept the submissions of Mr Lawrence on this Ground of Appeal and had it stood
alone this appeal would have failed.
I
would therefore allow the appeal, restore the orders of the Master in relation
to
Costs.
MR
JUSTICE CONNELL: I agree. Order 10, rule 1(2)(B) provides for service on a
defendant via a letter box at his usual or last known address. When
considering the situation between a lay client and solicitor it is in the
highest degree unlikely that the lay client will know where the solicitor
lives; it is most likely that he will know the solicitor’s professional
address. Given that a main purpose of the Rules of the Supreme Court as to
service is to give the defendant knowledge of the existence of proceedings
against him, it would in my view be a strange result if the Rules as to service
were to be so designed as to make that main purpose more difficult to achieve
by requiring service at an address which the Plaintiff is unlikely to know
rather than easier to achieve by permitting service at an address which the
Plaintiff is likely to know. For the reasons given by Roch LJ I would allow
this appeal and restore the decision of the Master as to costs.
ORDER:
Appeal allowed with costs; no order for costs before the Deputy Judge on 11th
November 1994; leave to appeal to the House of Lords refused.
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