England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CLERKENWELL COUNTY COURT
(His Honour Judge Colthart)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd January 2001

1. LORD JUSTICE THORPE: It seems that on 3rd May 1996 Carmelita Nanglegan sustained an accident whilst at work at the Royal Free Hospital where she was employed by the Royal Free Hampstead NHS Trust. She instructed a solicitor, Mr. Matthews. It was necessary for proceedings to be issued within the three year period allowed by the statute. May 3rd 1999 was in fact a bank holiday, so the claim squeaked in by issue on the following day, 4th May 1996. There was then a period of four months within which the claim had to be served on the Royal Free Hospital NHS Trust.
2. It seems that there had been prior correspondence between Mr Matthews and the insurance company acting for the Trust. The insurers notified Mr. Matthews' firm that they were instructing solicitors, Browne Jacobson, to accept service. On 5th July Browne Jacobson wrote to Mr. Matthews' firm confirming that they were instructed to accept service.
3. Prior to completion of the preparation of the particulars of claim, it was necessary for Mr. Matthews to obtain expert evidence in the form of a medical report. He did not instruct the specialist until 9th August. The specialist examined the claimant on the 18th and managed to issue a report in writing on the same day. On 31st August Mr. Matthews relied on his secretary to serve the claim on the defendant. Instead of serving on Browne Jacobson the particulars were addressed to the Chief Executive, the Royal Free Hospital, Pond Street, NE2 2BB. Assuming that it was open to the claimant to serve the defendant direct, first of all, it was not the Royal Free Hospital but the NHS Trust that was the proper defendant. But of far greater significance is that for the correct post code of NW3 2QG, the sender had selected or invented the thoroughly inaccurate post code, namely NE2 2BB.
4. It seems that Mr. Matthews was quitting the office for a holiday commencing Saturday, 4th September. On the eve he went through a number of files in which he anticipated some sort of activity during his fortnight's holiday. One of the selected files was this and, as he said in a subsequent affidavit, his inspection of the file led him to the discovery that the proceedings had been inadvertently served on the defendants rather than their nominated solicitors. He said that once he had appreciated the mistake, he left a taped message for his secretary to telephone Browne Jacobson to explain what had happened. It seems that on the following Monday his secretary duly dispatched the claim to Browne Jacobson and that it was received on the following day. Not surprisingly, they took the view that the claim had not been properly served within the four month period provided by the rules. On 13th September they issued a notice of application, by which they sought an order that there had not been valid service of proceedings in accordance with the Civil Procedure Rules 1999. They further took the point that the claimant had elected to sue the wrong defendant.
5. That application was fixed to come before the district judge on 15th November. Three days before the fixture, Mr. Matthews' firm issued a notice of application seeking orders (1) that there be leave to rectify the description of the defendant, and (2) that time for service of the particulars of claim be extended retrospectively to 10th September. The district judge reached the conclusion that the purported service did not comply with the rules but she exercised a discretion, which she found under rule 7.6, to extend time to save the claim. The defendant successfully appealed to His Honour Judge Colthart, all this in the Clerkenwell County Court. On 11th February 2000 he held that the purported service did not comply with the rules, although on a different ground to that which the district judge had found, but, in considering the application under rule 7.6, he reached the reverse conclusion and brought the case to a summary end. The claimant sought permission which was granted on 26th September, largely because the court felt that it would be desirable to clarify the difference of view between the district judge and the circuit judge as to whether the purported service failed, by virtue of rule 6.4, as the district judge had found, or by virtue of rule 6.5 , as the circuit judge had found. It is now conceded and agreed between counsel that rule 6.4, which is a rule specifically dealing with personal service, is of no application to this case. Accordingly, we have only to consider Mr. Granville Stafford's submission, that the effect of rule 7.5 and rule 6.5 in conjunction is that a claimant has effectively an option, either to serve on solicitors who have been nominated for service, or, alternatively, to serve on the defendant himself, provided the document to be served is the claim form.
6. Mr. Granville Stafford placed considerable emphasis on rule 7.5. The heading to the rule is "Service of a Claim Form". Paragraph (1) of the rule states:

"After a claim form has been issued, it must be served on the defendant."

7. That, he says, is a rule of general application, and it replicates the old law, whereby the requirement was always service on a defendant and that service on nominated solicitors was a technical breach of the practice only validated by judicial decision. He then placed great reliance on rule 6.5(5).
8. In order to understand and determine his submission, it is necessary to set out this rule in its entirety to the conclusion of the fifth paragraph. It reads as follows:

"(1) Except as provided by section 111 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,

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;

(d) by fax or other means of electronic communication,

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;

the party's address for service is the business address of his solicitor.

(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)."

9. So, says Mr. Granville Stafford, it is plain that there is one regime for the service of the claim form and a different regime for the service of any subsequent documents within the case. He says that it is easy enough to understand why the rules have been so drafted. The obligation on the claimant to give an address for service arises at the earliest stage when he completes his claim form, for on the reverse of the form and at its foot is a box to be completed with the claimant's or claimant's solicitor's address, to which documents or payments should be sent. However, he stresses that the defendant's first opportunity comes when he completes the response pack form which accompanies the claim duly served upon him. Accordingly, as he submits, it would be quite inappropriate for rules to require service of the initial claim form otherwise than on the defendant himself, who has had no preliminary opportunity to comply with the requirement under paragraph (2) to give an address for service. Once he has had that opportunity and accordingly made compliance with his obligation under paragraph (2), then, thereafter, any document within the proceedings is to be served on the business address of his solicitor. That argument did not appeal to Judge Colthart, who held that the obligation was primarily stated by paragraph (4), namely, any document to be served by first class post must be sent to the address for service given by the party to be served.
10. The comprehension of rule 6.5 is not easy at a first reading, and I have reached this conclusion, that despite the powerful submissions that Mr. Granville Stafford has advanced, the primary obligation is on a party to give an address for service, and that once there has been compliance with that obligation, ordinarily speaking, service will be at the address given. Paragraph (3) seems to give to a party a choice. If he has not elected to give the business address of his solicitor as his address for service, he may instead give either the address of his residence or, alternatively, the address of his place of business if he carries on business within the jurisdiction. But the general obligation created by paragraph (2), and the election created by paragraph (3), is then to some extent confined by the terms of paragraph (5). So if a party has elected to give either the address of his residence or the address of his place of business as his address for service, the intervention of paragraph (5) requires service of any document, other than the claim form, upon the solicitor acting on his behalf in the case, even if his address has not been specifically given as the address for service. It seems to me that this is a rational construction of the somewhat complex provision. There may be cases in which the first intimation that the defendant has of his involvement in litigation is the receipt of the claim form at what will ordinarily be either his residence or his place of business. But there will be many, many cases in which there will have been protracted correspondence prior to the issue of proceedings, and I suspect that cases such as this, in which the defendant elects to give his address for service and nominates his solicitor to accept service shortly after the issue of the proceedings and well within the four months allowed for service, will be common. In that event, it seems to me right that paragraph (4) should require service upon that nominated solicitor. There will be many instances in which a defendant does not want service either at his residence or at his place of business. It seems to me right that he 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. Accordingly, I am satisfied that the judge was right to hold as he did in his judgment:

"It has been argued that that interpretation is wrong because of the wording of 6.5(5) ... Mr Granville Stafford has argued that in effect means that you cannot serve a claim form on a solicitor. That seems to me to be not the appropriate interpretation of the rules. It would render an awful lot of actions incorrectly commenced. All I take that rule to mean is that once you get past the claim form stage then the address for service is deemed to be the business address of the solicitor. So for those reasons therefore it seems to me that, in this case, there was a mandatory requirement upon the claimant to serve at the address of the solicitors, that being the address for service given by the party to be served under 6.5(4)."

11. The judge went on to consider the rival application for an extension of time. He held that the claimant had not satisfied either of the requirements to be found in rule 6.7(6), which reads so far as is material:

"(3) If the claimant applies for an order to extend the time for service of the claim form after the end of the period specified. . . the court may make such an order only if -

(b) the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and,

(c) in either case, the claimant has acted promptly in making the application."

12. The judge held that the claimant had not taken all reasonable steps but had been unable to serve and, further, that the claimant had not acted promptly in making the application.
13. Mr. Granville Stafford has endeavoured to run an argument which I do not think was really run in front of the judge, that he did not have to get to paragraph 7.6 since this was a case of irregular service rather than no service at all. So, says Mr. Granville Stafford, the provisions of rule 6.1 , alternatively 6.8, are there to save the proceedings from premature end. Rule 6.1 provides:

"The rules in this Part apply to the service of documents, except where. . .

(b) the court orders otherwise."

14. Accepting for the moment that that seems to be widely drawn, I come on to rule 6.8 which is headed "Service by an alternative method". It is plain to me that 6.8 is written to provide regulation of those cases in which there has to be some alternative service, and has no application at all to the questions raised by this appeal. It seems to me that it would be quite wrong to allow the claimant to place any reliance or to derive any benefit from the terms of rule 6.1. This court has made plain in the decision in Venos v Marks and Spencer Plc (unreported, 8th June 2000), that rule 7.6(3) is very plain in its meaning and must be equally plainly applied. It is only necessary for me to cite a short passage from the judgment of May LJ at paragraph 20, when he said:

"The meaning of rule 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period after its service has run out 'only if' the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods - rule 3.1(2)(a) - does not apply because of the introductory words. The general words of Rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos in substance needs is an extension of time - calling it correcting an error does not change its substance. Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored."

15. That prescription is recognized by Mr. Granville Stafford, but it seems to me that his alternative endeavour to rely on rules 6.1 and 6.8 are even weaker in their prospect than the endeavour that was made by Mr. Venos. Any consistent application of the general principles identified by the court in Venos v Marks and Spencer require the summary rejection of that argument.
16. It only remains to consider Mr Granville Stafford's last submission, namely that the judge was wrong to have reached the conclusions which he did on the facts of the case as to the application of rule 7.6(3)(b) and (c). The judge, in reviewing the circumstances, noted what seems to have been a course of brinkmanship throughout, namely the issue of the claim on the very last day of the limitation period, followed by a period of three months inactivity before the forensic consultant was instructed, followed by the seemingly dilatory dispatch of the papers to the hospital on 31st August. The judge then considered what Mr. Matthews had done on Friday, the 3rd. He made some seemingly fairly charitable interpretation of the evidence which he had himself given. It is apparent to any objective reviewer that what Mr. Matthews could have done, and should have done on 3rd September, when he discovered the mistake and when he was still within time, was simply to have faxed the particulars of claim to Browne Jacobson. Against that chronology, I do not see how it can possibly be said with any degree of conviction that the provisions of rule 7.6(3)(b) had been satisfied. That rule is clearly intended to cover cases where the person endeavouring to effect service has taken all reasonable steps, but his reasonable efforts have been frustrated by some near insuperable difficulty or obstacle. All we have here is a history of either incompetent or dilatory practice, a history that seems to have more than one chapter.
17. Finally, in my opinion the judge was right to say that the claimant had equally failed to clear the hurdle presented in rule 7.6(3)(c). As I have already recited, although the claimant was aware that no indulgence was to be given, by 13th September at the latest, no step was taken until two months had elapsed and only when the hearing before the district judge was upon him. It seems to me that the whole purpose of these rules is to ensure that those who have claims that merit judicial determination take the steps that are required of them by the rules, and in this instance all that I see is a catalogue of what seems to me to be risk taking on the part of the claimant, and it seems to me entirely fair in those circumstances that the judge should have arrived at the conclusion that he did, strictly perhaps not in the exercise of the discretion, but more in determining that the rules precluded him from the exercise of the discretion. For all those reasons I would dismiss the appeal.
18. LORD JUSTICE BUXTON: I agree. The structure of rule 6.5, with which we are concerned in this appeal, is at first sight not entirely easy to elucidate, but on reflection I conclude that that is principally because this rule, as all the rules, has to address both a situation where a party is acting by a solicitor and a situation where a party is acting in person. That, in my judgement, explains why in 6.5.3 there appears to be a choice given to a party as to whether he should give as his address for service the business address of his solicitor or the address of his place of residence, and why in 6.5.4 the service of a document is said to be required at the address for service given by the party, whatever it might be within the rules.
19. We then, however, come to 6.5.5, which lays down a specific rule when a solicitor is acting for the party to be served. When that is the case, the address for service is required to be the business address of the solicitor, as far as I can see, whether or not that has been specified by the party as his address for service under the preceding rules. A similar limitation is provided by Part 6.4 with regard to personal service, because where a solicitor is authorised to accept service on behalf of the party, the document must be served on that solicitor, even when the regime is one addressing personal service. As I understand it, the regime in Part 6.5.5 is a novelty or an innovation in the Civil Procedure Rules which has no exact parallel in the former rules of the Supreme Court or the County Court Rules. The reason is, in my judgement, clear. It is that when solicitors are involved, it is regarded by the rule-maker, if I may say so rightly regarded, as being most likely to advance the objective of the rules in getting actions dealt with promptly and in proper form if all documents are sent to the solicitors without intervention and possible loss or misunderstanding on the part of the lay client. All that, in my judgement, on reflection (I have had to reflect on it) is a clear explanation of why the rule is structured as it is.
20. It is also clear why there is exempted from the provisions of 6.5 Part 5 the situation where the document to be served is a claim form. That is plainly because, where the document to be served is a claim form, it may not be established at that stage that the party, who may or may not be the solicitor for the party to be served, is in fact the appropriate address for that service. The author of the claim form may not know whether the person on whom he seeks to serve the claim is or is not acting by a solicitor. Even if he knows or suspects that he is acting by a solicitor, at that stage he will not necessarily know that that solicitor is authorised to accept service. That, therefore, is the reason why a specific regime is provided under 6.5.5 for a claim form, and why, when Part 6.1.3 addresses the question of service of the claim for or by the court, provision is made that the defendant's address for service may be the business address of the claimant's solicitor, but only provided that he has been authorised to accept service.
21. The judge, in my judgement, therefore entirely correctly analysed the implications of 6.5.5 when he said:

"All I take that rule to mean is that once you get past the claim form stage then the address for service is deemed to be the business address of the solicitor."

22. In our case there is no question of deeming arising because it is a case where a specific address for the service on the solicitor had already been given in the exchanges between the parties that had taken place before the service of the claim form. That then raises the question whether there should be exempted from the regime of 6.5.4 the case of the claim form, this being a case where an address for service has been given by the party to be served. 6.5.5, so heavily relied upon by Mr Granville Stafford, does not in my view, and for the reasons that I have already given, bite on that point at all. It does not justify reading the exemption of the claim form at 6.5.5 back into a case such as envisaged by 6.5.4 where an address for service has been given by the party to be served: rather than, as under Part 5, being attached to that party by operation of the rules. It will not always be the case that an address for service will have been given by the party to be served before the claim form was served. As my Lord has pointed out, in the realities of litigation, more particularly the reality of litigation of the sort with which our present case is concerned, it will often be the case that what happened in this case will have happened; that is to say, that an address for service will already have been given. Where that has happened I see no reason, as a matter of construction, for exempting the claim form from the regime provided for by 6.5.4. It refers to any document and it refers to the fact of an address for service having been given. Both of those factors were satisfied in this case. Nor, for the reasons that I have already indicated, do I see any reason of policy for exempting the claim form from that regime. The policy is that documents should be served on solicitors because that helps to expedite the conduct of the matter, as it might be thought this case itself demonstrates.
23. That in itself would not be sufficient to support the judge's conclusion if the rules said otherwise, but they do not say otherwise. The judge was right in the construction that he applied to 6.5.4, and I agree with his reasons for that construction, as I agree with those given by my Lord.
24. Can the claimant escape by reference to any other part of the rules? I entirely agree with what my Lord has said about the arguments addressed to us in respect of Part 6.1 and Part 6.8. Part 6.8 is clearly directed to the notion of substituted service. It does not apply to ex post facto rectification of errors in service. So far as Part 7.6(3) is concerned, this is a case where, not only can it not be said that the claimant has taken all reasonable steps to serve the claim form, on the construction of the law adopted by this court he has taken no steps at all to serve the claim form, because service of the claim form in this case required service on the solicitors. Even if that were not the case, it is manifest, as my Lord has said, that Part 7.6(3) is addressing those cases, familiar enough, where the claimant tries to find his defendant but cannot do so, either because the defendant is, unknown to him, out of the jurisdiction, or because he is evading service, or matters of that sort. The terms of endeavour and lack of success that are set out in Part 3B clearly address that situation. They do not address a situation such as the present. So far as Part (C) is concerned, which must also be satisfied, that the claimant has acted promptly in making the application, that is a matter for the judgment of the court below, and I would need to be satisfied that the judge had come to an irrational conclusion before I would be minded to reverse his finding on that point. Far from thinking that he was irrational, I consider him to be completely correct. For all those reasons, I would dismiss the appeal.
Order: Appeal dismissed with costs in the terms sought.