England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Gray

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2003

Mr Justice Evans-Lombe:

1. These are applications for permission to appeal two judgments of Mr Justice Gray given on the 26^th March and 11^th June 2003.
2. The first claimant is an Egyptian company of which the second claimant is the founder. The defendants are respectively a satellite television broadcaster in Quatar and a journalist working for the first defendant. The background facts of the case are set out in the judgment of Mr Justice Gray in the same matter given on the 24^th May 2002. By that judgment Mr Justice Gray discharged injunctions obtained by the claimants from Mr Justice Pitchers on the 27^th March 2002 restraining the publication of a television interview of the second claimant conducted by the second defendant. Mr Justice Gray's judgment of the 26^th March of this year dealt with the question of whether the claim form had been properly served by the claimants on the defendants. Both the defendants are resident abroad. His judgment of the 11^th June refused the claimants application to dispense with service of the claim form pursuant to part 6.9 CPR, struck out the claim pursuant to CPR 3.4(2)(c) on the defendants' application, refused permission to appeal those orders and ordered the claimants to pay the defendants their costs of the claim, with certain exceptions, on an indemnity basis.
3. I will deal with the application for permission in respect of Mr Justice Gray's judgment of the 26^th March first.
4. It seems that it is not now suggested that the second defendant was properly served. The applications for permission therefore, are confined to the judge's conclusion that the first defendant had not been properly served within the jurisdiction. No application for permission was made at the time the judgment was delivered or after the failure of the application to dispense with service on the 11^th June. It is in consequence substantially out of time in this court, see CPR 52(2)(6). No application for leave to serve out of the jurisdiction has been made.
5. The proper address for service of proceedings within the jurisdiction is dealt with at CPR 6.5. Sub-rule (6) provides that a claim form is to be served, where no solicitor instructed by the defendant is available to accept service and no address for service has been given, in accordance with the schedule forming part of the sub-rule. The first defendant falls into the final category on that schedule namely "any other company or corporation". The sub-rule provides that the proper address for service for such an entity is "any place within the jurisdiction where the corporation carries on its activities" or "any place of business of the company within the jurisdiction ."
6. There was no evidence before the judge from which it was possible to discern precisely what sort of entity the second defendant was. It seems clear, however, that it must have been either a "corporation" or a "company".
7. Mr Justice Gray's conclusions were as follows:-

i) That service on the first defendant could not be effected by service on Mr Fouda who was an employee of Al Jazeera Satellite Channel Ltd ("JSC"), an English company limited by guarantee and a maker of television programs primarily for the first defendant, by leaving the claim form with Mr Fouda at No 8 Ganton Street, studio premises, at the material time being used by JSC. The judge was not prepared to find on the evidence before him, that Mr Fouda was "a person holding a senior position with Lakah Group" within paragraph 6.2 of the Practice Direction.

ii) That the claimants had not established on the evidence before him that No 8 Ganton Street was, at the material time, either a place where the first defendant was carrying on its activities or that it was the first defendant's place of business within the meaning of CPR 6.5(6) or where the first defendant had an established place of business for the purpose of section 695 of the Companies Act 1985.

8. The judge found, in the absence of authority, that the test for the place where a corporation "carries on its activities" or a company has "any place of business" for the purposes of CPR 6.5(6) was effectively the same. It seems to me that that conclusion was correct. His further conclusion that the test of "established place of business" in the Companies Act presented a higher hurdle to surmount than the test in CPR 6.5 is irrelevant to our decision since he found that the CPR 6.5 test had not been met. As to the latter test the judge's view was that it meant "that service on an address with which the company has no more than a transient or irregular connection will not be valid." It seems to me that that conclusion cannot be challenged.
9. In my judgment the judge having formulated the correct tests was, on the evidence before him, entitled to come to the conclusion that those tests had not been met. It follows that there is no reasonable prospect of success for any appeal against his conclusion that the first defendant had not been properly served within the jurisdiction.
10. I turn to consider the application for permission in respect of the judgment of the 11^th June.
11. By virtue of CPR 7.5 the claim form was required to be served by 28^th September 2002. The claimant's application to dispense with service pursuant to rule 6.9 was issued on the 16^th January 2003 and so was retrospective. In Anderton v Clwyd County Council [2002] EWCA Civ 933; 1 WLR 3174 this court concluded that "rule 6.9 is sufficiently widely worded to entitle the court to dispense retrospectively with service of the claim form in an appropriate case…" In Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1WLR 997 this court concluded that rule 6.9 cannot be extended to enable the court to dispense with service when what would be done was in substance that which rule 7.6(3) forbade in respect of applications to extend time for service. Rule 7.6(3) prescribes that:-

"(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 by rule 7.5 or by an order made under this rule the court may make such an order only if-

(a) The court has been unable to serve the claim form;

(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."

As I have pointed out, no application has been made to serve outside the jurisdiction.

12. The judge drew attention to the second category of cases where dispensation was sought highlighted in the Anderton case where, as in the present case, it is accepted that the claim form has come to the attention of the defendant. In particular he drew attention to paragraph 59 in the Anderton judgment where Lord Justice May says:-

"59 In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisors in their conduct of the proceedings and any possible prejudice to the defendant in dispensing with service of the claim form."

13. The judge who had an absolute discretion to exercise, dismissed the application largely on the basis of "other relevant circumstances" arising from the manner in which these proceedings have been pursued by the claimants. In my judgment there was ample material available upon which he could take that course and there is, in consequence, no real prospect that his decision to refuse to dispense with service can be successfully appealed against.
14. For these reasons I would dismiss these applications.

Lord Justice Brooke:

15. I agree. In the circumstances it is unnecessary for us to rule definitively on the appellant's application for an extension of time to appeal the 26^th March judgment. This raised problematical features (including the loss of an accrued limitation defence), on which we would have been bound, in fairness, to give the proposed Respondents the chance to address us, if they so wished.