England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Pumfrey)

		Royal Courts of Justice Strand London, WC2 Thursday, 28th November 2002

1. LORD JUSTICE CHADWICK: The applicant, Sanctuary Copyrights Limited, (formerly known as Castle Copyrights Limited) is the third named defendant to a Part 20 counterclaim in proceedings brought by Charly Acquisitions Limited and Charly Trademarks Limited against Immediate Records Inc and Mr Andrew Loog Oldham. The dispute between the parties concerns the ownership of copyrights in a catalogue of sound recordings released under the Immediate label. The claim in the proceedings succeeded. The counterclaim was dismissed by Pumfrey J on 7th February 2002. On 25th July 2002 Immediate Records Inc and Mr Oldham were given permission to appeal to this court. In giving that permission on paper, Aldous LJ wrote:

"I am concerned at how this trial was conducted after the appellant's counsel withdrew. A single day's adjournment appears to open up a human rights challenge in the light of the representation of the other parties and the complexity of this case."

The appeal is listed for hearing, to commence on 3rd February 2003 with a time estimate of four days.

2. Immediate Records Inc is a company incorporated in Connecticut in the United States of America. Mr Oldham is resident in Bogota, Colombia. A statement of his assets made on 11th February 2002 in response to a direction imposed by Pumfrey J's order, discloses that he has no significant assets within this jurisdiction; that he owns two parcels of land in the United States of America, the one in Pennsylvania and the other in Connecticut, both of which appear to be charged to secure federal tax payments; and that his only significant asset in Colombia is a flat in Bogota, part owned by his wife, which he was then in the process of transferring to a company. Immediate Records Inc does not appear to have filed accounts. Pumfrey J took the view that it probably had no assets. It is in those circumstances that the applicant, Sanctuary Copyrights Ltd, seeks an order for security for the costs of the appeal.
3. Before addressing that application for security for costs, it is necessary to refer to matters which have occurred since the trial and in particular to matters which have occurred very recently. Mr Oldham and his company, Immediate Records Inc, had been represented by solicitors and counsel at the commencement of the trial, but counsel's instructions were determined in the course of the trial and he withdrew. The solicitors then acting came off the record. It was the judge's refusal to adjourn the trial in those circumstances which led Aldous LJ to give permission to appeal, as appears from the note of reasons to which I have already referred.
4. The appellants' notice was filed by fresh solicitors purporting to act on behalf of both Mr Oldham and Immediate Records. There is some question whether those solicitors were ever instructed by Immediate Records; and there is a suggestion that their retainer for Mr Oldham was terminated in April 2002. Nevertheless, since April 2002 they have, apparently regularly, filed a substantial skeleton argument on behalf of the appellants, and filed witness statements which a legal executive has purported to sign on Mr Oldham's behalf.
5. On 22nd November 2002 that firm of solicitors obtained an order from Master Bowman in the Chancery Division declaring that they had ceased to act for the appellants. By letters faxed that day, they informed the applicant's solicitors and the Civil Appeals Office that that order had been made. The letter to the Civil Appeals Office of 22nd November 2002 indicates that the solicitors will not be appearing today, and they have not done so. Further, that they will not be appearing or instructing counsel to appear at the hearing of the appeal in February 2003. Mr Oldham has instructed other solicitors, Messrs Hamlins, to act for him in other matters; but not, it seems, to act in connection with this appeal. Hamlins have not come on the record in these proceedings for the purpose of the appeal. A letter, dated 26th November 2002, from Hamlins to the applicant's solicitors confirms that they are instructed by Mr Oldham in connection with another matter and sets out a number of complaints against the firm of solicitors formerly acting. Those complaints are intended to support the assertion that the former solicitors were not in fact acting on instructions from Mr Oldham or from Immediate Records Inc. I emphasise, of course, that I have heard nothing from the former solicitors; and nothing from Hamlins as solicitors in these proceedings. They have not yet assumed that role.
6. Nevertheless, it appears from that letter that there is cause to think that neither Mr Oldham nor Immediate Records intend to pursue this appeal. If that is indeed the true position, then the appeal should be struck out or dismissed; and the sooner the better. It seems to me premature, therefore, to make an order for security for costs at this stage. If the appeal is being pursued, then the appellants should have an opportunity to be heard on this application; either in person or through new solicitors who have come on the record. If the appeal is not being pursued, then the application for security for costs falls away.
7. CPR 42.3(2) requires that, where a court has made an order that a solicitor has ceased to act, a copy of that order must be served on every party to the proceedings and, if served by the solicitor, the solicitor must file a certificate of service. That has not yet been done. In particular, the former solicitors have not yet filed a certificate that they have served an order on their former clients; and I am told that they have not served an order on the applicant or its solicitors. The Practice Direction supplemental to CPR Part 42 provides, at paragraph 3.3, that an order under CPR 42.3 takes effect when it is served. On that basis the order made on 22nd November has not yet taken effect. Paragraph 5.1 of that Practice Direction is in these terms, so far as material:

"Where a court has made an order under rule 42.3 that a solicitor has ceased to act, the party for whom the solicitor was acting must give a new address for service to comply with rule 6.5(2)."

There are then two notes: the first that rule 6.5(2) provides that a party must give an address for service within the jurisdiction; and the second that, until such time as a new address for service is given, rule 6.5(6) will apply. Rule 6.5(6) provides that where no solicitor is acting for the party to be served, and the party has not given an address for service, then the document must be sent or transmitted to or left at the place shown in the a table. The table provides that, in the case of an individual, that place is to be his usual or last known residence; and, in the case of a company or corporation not registered in England, any place within the jurisdiction where the corporation carries on business. But CPR 6.5(7) provides that that rule does not apply where the court makes an order for service by some alternative method, as it is empowered to do under CPR 6.8 where satisfied that there is good reason to authorise service by a method not permitted by the rules.

8. In those circumstances, it seems to me that the address for service of the order that I propose to make under the rules is in fact the address of the former solicitors, they not yet having come off the record because of their failure to serve the order made on 22nd November. Nevertheless, it is plainly important that the order comes to the attention of Mr Oldham and Immediate Records. I am satisfied from the evidence that that can be achieved by directing service on Mr Oldham at Hamlins, and directing that copies of the order be sent to his e-mail address and to the address in Connecticut of the attorney acting for Immediate Records.
9. The order which I propose to make is this: (1) The appellants are to file with the Civil Appeals Office and serve on the applicant's solicitors by 4 pm, Friday, 6th December 2002, a notice giving an address for service within the jurisdiction in accordance with CPR 6.5(2); (2) If the appellants fail to comply with that order, the appeal will be struck out without further order and upon terms that the appellants pay the applicant's costs of the appeal and of the present application; (3) If the appellants do comply with that order, then the application for security for costs listed for hearing today will be relisted for hearing before me in the week commencing 16th December 2002, with a time estimate of 30 minutes; (4) This order is to be served on the appellants by serving copies on their former solicitors, Messrs Hillyard Simpson Hardacre, at 34, Rupert Street, London, W1, and on the solicitors now acting for Mr Oldham, Messrs Hamlins, at Roxborough House, 273-287 Regent Street, London W1. Text copies of the order are to be sent by e-mail to Mr Oldham at his e-mail addresses, Loog@Andrew LoogOldham.com and Old-Pro@Andinet.com, and to the company's attorney in Connecticut, Mr Maurizio Lancia at 2, Corporation Drive, Suite 110, Trumbull, Connecticut, 06611, USA. Those addresses are to be confirmed by the applicant's solicitors to the associate at the conclusion of this hearing.
Order: Application adjourned to be listed on notice on 16th December 2002; upon terms that the appellants pay the respondents' costs of the appeal and the applicant's costs of the present application, any application for a wasted costs order under section 51(6) of the Supreme Court Act be made in the Chancery Division.