England and Wales High Court (Commercial Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISON
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 January 2001

1. The first application before me is made by 39 Lloyd's syndicates who subscribed in 1991 to a policy of insurance in respect of the cruise vessel "Regent Sky", and to whom I shall refer as the "1991 Syndicates" They are represented by Mr Berry. They make various applications which are designed to achieve the result that the claims against them be dismissed on grounds relating to service of the Claim Form and the Particulars of Claim. Specifically they seek declarations that the Claim Form was not served on any member of the syndicates on or prior to 16 March 2000, that is to say within four months of the date when it was issued, 16 November 1999; that Mr Outhwaite was not and is not a proper representative for any or all of the other members of the 1991 Syndicates and that service upon him is not valid service on other members of the Syndicates; and that the claimants have not served the particulars of claim within the period permitted under the Civil Procedure Rules ("CPR"). They also seek to set aside two orders made without notice: the first being made by Mr Justice Aikens on 12 May 2000 extending the validity of the Claim Form until 23 May 2000 and permitting service in Guernsey on Mr Outhwaite as "the representative name for Policy MIK3100 in the Lloyd's market"; the second being an order by Mr Justice Morison dated 7 June 2000 whereby he granted an extension for service of Particulars of Claim up to and including 14 June 2000.
2. The other application before me is made by the Claimants, represented by Ms Masters seeking a further extension of time for service of the particulars of claim up to and including 5 August 2000, the particulars of claim having in fact been served on 3 August 2000.
3. These applications are made in proceedings brought by the two claimant banks as assignees of the benefits of two contracts of insurance concluded by the owner of the vessel "Regent Sky", Sea Nomad Maritime Inc. The first of these policies, to which the 1991 Syndicates subscribed, insured the vessel against various perils from 17 November 1991. The leading Syndicate was Lloyd's Syndicate 317, whose active underwriter was Mr Outhwaite. A claim is made under section 84(3) of the Marine Insurance Act 1906 that the claimants are entitled to a repayment of a proportion of the premium paid ("the s.84 claim"). The sum to be repaid is calculated in various ways, but at its highest it is put at US$ 310,000. This claim is made against not only the 1991 Syndicates but also the companies market subscribing to the policy. It is not clear from the evidence before me quite what proportion of the policy was underwritten by the Syndicates, but it is sufficient for the purposes of these applications to say that the claim under this head against the 1991 Syndicates appears to be of the order of US$ 150,000 or £100,000, or maybe a little more.
4. A second claim is made in these proceedings against the syndicates and companies subscribing to the 1991 policy. It seems that the insured paid a further premium in October 1993 in the sum of US$ 542,500 on the basis that it was an "additional premium to expiring policy". On the face of it this would be payable to the underwriters of the 1991 policy. As far as appears from the evidence put before the court on these applications, this sum was in fact never paid to the underwriters of the first policy, and therefore no part of this was received by the 1991 Syndicates. Mr De Azevedo of Messrs Thomas Cooper & Stibbard ("Thomas Cooper"), the Claimants' solicitors, in a statement put in evidence before me, states that "it would now appear that the second year underwriters never paid across the US$ 542,500 to the first year insurers", and if this is so the claim could not succeed against the 1991 Syndicates. However, Ms Masters fairly points out that it is not within the knowledge of the Claimants who received the sum which the insured paid by way of this additional premium, and accordingly in these proceedings repayment of this sum is sought from both the 1991 insurers, including the 1991 syndicates, and the insurers who renewed the cover.
5. The Claim Form was, as I have said, issued on 16 November 1999. The date is significant because the period of the first policy was from 17 November 1991 to 16 November 1993, and it is the contention of the 1991 Syndicates that the last possible date for the accrual of the cause of action for the s. 84 claim was 16 November 1993. On this basis, a six year limitation period would have expired on 16 November 1999. Ms Masters accepted that it was arguable that the cause of action against the underwriters accrued on 16 November 1993.
6. The details of the Claim Form are of some importance. It is in form N1(CC). Against the word "defendant(s)" are the words "Please see attached appendix A". Against "name and address of defendant receiving this claim form", similarly there appear the words "Please see appendix A". Appendix A to the Claim Form lists and numbers 151 names or entities. The first reads as follows "R M Outhwaite 317 syndicate at Lloyds as representative name on policy MIK3100 including the following Lloyds syndicates". There then follow 38 syndicates, numbered as defendants 2 to 39. No individuals within the syndicates are identified and no syndicate year is specified. After these syndicates the list is broken by the word "and", and there follow the names of 48 insurance companies numbered from 40 to 87, these being the companies said to have subscribed to the 1991 policy. The 88^th name in the list is "Mr John Charman of J Charman 488 syndicate at Lloyds as representative name on policy M3J4800 including the following Lloyds syndicates". There then follow against the numbers 89 to 110 another list of 22 syndicates. Again no individual underwriters are named and there is nothing to indicate a syndicate year. One result of this is that on the face of the document, there would appear to be some duplication of those listed between 2 and 38 and those listed between 89 and 110. Against numbers 111 to 149 are various companies, again including apparent repetition of companies already included in the list. I understand that these syndicates and companies are the insurers on the renewal policy. Finally defendants numbered as 150 and 151 are Sedgwick Marine and Cargo Ltd and SG Services Ltd, who are sued as brokers of the policy.
7. After the list of names there appear the following addresses:

"Defendants 1^st to 39^th Equitas Management Services Limited, 33 St Mary Axe London EC3

Defendants 40^th to 87^th The Corporation of Lloyd's, No 1 Lime Street London EC3

Defendants 88^th to 110^th The Institute of London Underwriters, 49 Leadenhall Street London EC3A 2BE

Defendants 150^th to 151^st Victoria House, Queen's Road, Norwich NR1 3QQ"

It seems clear that a mistake has been made in setting out these addresses, resulting in no address being given for defendants 111-149, Lloyd's being given as the address for company defendants and the Institute of London Underwriters being given for some of the Syndicates.

Two questions arise about this Claim Form which are of importance to matters which I am to consider on these applications. The first is whether the claim was begun against Mr Outhwaite as representative of all the syndicates who subscribed to the 1991 policy. The second is whether the address given at the end of the list of defendants for defendants 1-39 means that as for as they are concerned the Claim Form cannot be said to be one "to be served out of the jurisdiction" within the meaning of the CPR, Rule 7.5. I shall revert to these questions later in my judgment. At this point I observe that "the general rule is that a claim form must be served within four months after the date of issue", but that "the period for service is six months where the claim form is to be served out of the jurisdiction": Rule 7.5.

8. It seems that no steps were taken to effect service on the 1991 Syndicates until 14 March 2000, that is to say until two days before the expiry of the period prescribed in the "general rule". On that day a bundle of Claim Forms were left at the offices of Equitas, one form in respect of each of the 1991 Syndicates. The covering letter from Thomas Cooper simply stated "We enclose by way of service claim form together with response pack and notes for defendant". I have referred to the offices of "Equitas": the forms were left at the offices at 33 St Mary Axe, London EC3, where the offices of Equitas Management Services Ltd were to be found, and which is the address given on the Claim Form for "defendants 1^st to 39^th". Other members in the Equitas group of companies share the address. On the same day that the forms were delivered a letter was sent on behalf of the Equitas companies to Thomas Cooper stating that service of the form did not constitute effective service upon the relevant syndicates.
9. Before continuing the narrative of events it is convenient next to explain why, as it appears on the evidence, Thomas Cooper went about seeking to serve the Claim Forms in this way. When they had first been instructed in this matter in March 1999, they sought to obtain the placing files from the brokers Sedgwick, Marine and Cargo Ltd, in order to investigate the background to the claim. On 26 October 1999 Thomas Cooper wrote to Marsh and McClelland Companies Inc (as the brokers had by then come to be known) asking them if they could obtain an extension of time for the service of claims, but this was refused by the brokers as far as proceedings against them were concerned. On 3^rd November 1999 the brokers wrote as follows with regard to whether the underwriters would extend time: "In response to your fax of 26 October 1999, I would advise that we have spoken to the leading underwriter regarding this matter and he had declined to extend the time bar for claim. As you know, we have made strenuous and repeated approaches to underwriters, for over two years seeking their agreement for a return of premium. Unfortunately, their position has remained unaltered throughout and we regret that, as brokers, we are unable to progress this matter any further." In response Thomas Cooper wrote that they would be "obliged if you could obtain representative names for the two policies at Lloyds". They received the following reply dated 12 November 1999: "In reply to your fax dated 12 November 1999 we would advise that in respect of the 1991 year Equitas are representing the R M Outhwaite 317 syndicate and in respect of the 1993 year Mr John Charman of J Charman 488 syndicate". It appears that the solicitors understood this rather obscure reply to convey that Equitas would accept service on behalf of all the syndicates subscribing to the first policy.
10. I should also refer to evidence before me that shortly before 16 November 1999, an approach was made to Equitas for an extension of time through a Mr Mellett of Bankassure Insurance Services Limited. There appears to be some difference in the evidence as to whether this approach was made before or after the letter of 12 November 1999. There is no doubt that no extension of time was given. It also seems that something was said about Equitas providing the name and address of a representative defendant for the 1991 Syndicates and the Claimants' evidence is that Equitas declined to assist. This is disputed in the Applicants' evidence, but if the Claimants evidence is accurate, it does not, in my view, assist them. It simply emphasises that thy should have been aware from an early date that service of these proceedings might not be straightforward.
11. On 15 March 2000, the last day in the four months period from the date of the issue of the Claim Form, a bundle of Claim Forms was delivered to the front desk of Lloyd's building. They were in envelopes and under cover of letters which were addressed simply by reference to the Syndicate numbers, without any individual addressees and without identifying the Syndicate years concerned. It appears that some of the Claim Forms were sent to Equitas, and that afternoon Equitas telephoned Thomas Cooper to advise that they did not accept that valid service had been effected.
12. The 1991 Syndicates were apparently aware of the claim against them before these attempts at services, a claim having been put forward through brokers in 1996. However, no letters before action were sent, there had been no indication given to Equitas or to the 1991 Syndicates that attempts were to be made to serve proceedings on them, and there had been, as far as appears from the evidence which I have seen, no negotiations between the claimants and the 1991 Syndicates or Equitas. The only explanation put forward for delaying service upon the 1991 Syndicates was that until 20 February 2000 negotiations with the companies market were taking place. Even if, which I doubt, this adequately explains not serving the syndicates while these negotiations continued, there is no explanation for the further delay after they ended.
13. Before these applications were heard, the Claimants were maintaining that the claims forms were validly served by delivery to Equitas and Lloyd's. Ms Masters did not seek to maintain these contentions, which seemed to me hopeless. There is now no dispute that the Claim Forms were not validly served within the four months from their issue.
14. The attempt to serve the Claim Forms at the Equitas offices led to Equitas instructing solicitors, Freshfields, (now Freshfields Bruckhaus Deringer). On 17 March 2000 they wrote to Thomas Cooper stating that the 1991 syndicates had not been properly served at Equitas' offices, and that the Claim Forms issued on 16 November 1999 had expired. Thomas Cooper replied referring to the correspondence in November the previous year, which, they wrote, stated that "R M Outhwaite was to be the representative name for the 91 year and that they were represented by Equitas". They continued, "as a double security each Syndicate for the 91 year was also personally served at Lloyd's on or before 15 March". In their reply dated 28 March 2000 Freshfields maintained their position that the 1991 Syndicates had not been properly served: "In order validly to serve Claims Forms on a Lloyd's syndicate, it is necessary to serve all members of the syndicate or instead to choose a representative name, expressed to be acting as a representative both on their own behalf and on behalf of the other members of the syndicate for the relevant year(s) of account, and effect service on that individual." They pointed out that the brokers were not acting as agent of the syndicates or of Equitas when they wrote their letter in November 1999. In their reply dated 6 April 2000 Thomas Cooper, while maintaining that the syndicates had been properly served, stated that they understood from "your clients" that Mr Outhwaite was resident in Jersey and indicated that if Freshfields persisted in their stance they would apply to the court to serve Mr Outhwaite out of the jurisdiction. Freshfields replied on 12 April 2000, and it is not in dispute that when they received that letter Thomas Cooper were left in no doubt that Freshfields would not be dissuaded from their contention that the attempts at service were ineffective.
15. On 28 April 2000 Thomas, Cooper and Stibbard made an application to the court for permission to serve Mr Outhwaite in Guernsey. (The Application Notice is dated 26 April 2000, but Ms Masters accepts that it was not issued until 28 April 2000). The Easter weekend fell during the period between 12 April and 28 April, Easter Sunday being 23^rd April 2000. The application was made on the Friday following Easter, during the Court vacation which continued until 2^nd May 2000.
16. In their application the Claimants sought an order in the following terms: that they "be permitted to serve the Claim Form and Particulars of Claim on the 1^st Defendant, R M Outhwaite on behalf of Defendants 1 - 39 out of the jurisdiction [in Guernsey] because The First Defendant is the Lead Underwriter and a member of Syndicate 317 and is the representative name for the insurers on Policy MIK3100 in the Lloyd's market including those Syndicates listed at Defendants 2-39 at Appendix A of the Claim Form. The grounds of this Application under Order 11 of the Rules of The Supreme Court incorporated into the Civil Procedure Rules are that the claim is founded on a contract subject to English law and the losses resulted form acts committed within the jurisdiction". The application was supported by a witness statement of Mr Bateson of Thomas Cooper. He indicated the nature of the claim and identified the grounds upon which he contended that "The claimant is entitled to leave to serve out of the jurisdiction". He pointed out that it could be seen from the Claim Form that there were at least 39 Lloyds syndicates and "Out of an abundance of caution in addition to the Representative Name we have listed such Syndicates as were known on the Claim Form, but not the individual names on each Syndicate"; and he explained that each syndicate had been served at Equitas and at Lloyd's. He informed the Court of Freshfields' contention that there was not good service, and "that we must serve the names themselves or a Representative name"; and he went on to express the belief that Freshfields were insistent about service because "there may be a question of a time limit having been protected by the issue of the present Claim Form on 16 November 1999. If the Claim Form was not served within four months within the jurisdiction then there is a question of that Claim Form becoming invalid for service and the time limit may not be protected". He stated that Mr Outhwaite was named as "the Representative Name in the Claim Form" for the 1991 Syndicates, that he lived out of the jurisdiction and that "Therefore we have six months to serve him from the issue of the Claim Form which takes us to 16 May 2000".
17. Although the application was, quite properly, made without notice, Freshfields came to learn of it. On 12 April 2000 they had consented to an extension of 28 days for the service of Particulars of Claim (without prejudice to their contentions about service). On 5 May 2000 Thomas Cooper wrote seeking a further extension for service of Particulars of Claim and referred to the application pending for leave to serve Mr Outhwaite out of the jurisdiction. In their reply dated 11 May 2000 Freshfields agreed to a further extension for service of Particulars of Claim until 24 May 2000, and also asked for a copy of the application, expressing concern that the court should be informed "of the limitation issues which your client faces and of our clients' position in connection with the attempted service to date". They also asked that Thomas Cooper confirm that they would have no objection to the 1991 Syndicates being heard at the pending application.
18. This request was referred to in a telephone conversation between the solicitors. Mr Bateson's evidence is that his response was that "if there was a hearing I would endeavour to let them know but I could give them no guarantee as the matter was fairly urgent". In the event there was a hearing before Mr Justice Aikens on 12 May 2000. It was arranged at short notice. Ms Masters represented the Claimants. Mr Bateson was apparently engaged on other matters and did not attend himself. There is no dispute that Messrs Freshfields were not informed of the hearing and, it seems from the evidence which I have, no attempt was made by Thomas Cooper to inform them of it. Mr Bateson acknowledges that this was an error on his part in view of the pressure of time: there is no suggestion at all that the omission was deliberate.
19. The hearing of the application took place, I am told by Ms Masters, late on a Friday afternoon on 12 May 2000. Mr Justice Aikens had requested it. He had before him not only the witness statement of 26 April 2000 but also, as Ms Masters has told me, two further witness statements by Mr Bateson. The first, dated 11 May 2000, is headed "Witness statement in support of an application to extend time for service of the claim forms out of the jurisdiction and in the jurisdiction". It refers to service of Claim Forms both on the 1991 Syndicates and also upon other defendants. (I have not seen any application notice for an extension of time). As far as the 1991 Syndicates are concerned, the evidence in Mr Bateson's statement which is relevant to the extension of time for service of the claims forms is as follows: Mr Bateson referred to the application, erroneously stating that it was lodged on 26 April 2000 and stating that "to date the order has not been processed. However we have been in touch via Guernsey lawyers with the Court in Guernsey and the judge there has already given permission to the Court Sergeant to serve Mr Outhwaite in accordance with Guernsey law. However, until leave to serve out is given service cannot be effected. Freshfields although acting for Mr Outhwaite will not accept service." (It has become apparent that the evidence with regard to the position in Guernsey was not entirely accurate, as I shall explain below). Mr Bateson also stated that his firm had hoped that Freshfields and Messrs Hill Taylor Dickinson, who represented other defendants, would not require service abroad. However, they did require this, and therefore Thomas Cooper needed to arrange for the translation of the Claim Forms: on this basis an extension of 42 days to serve the Claim Forms was requested.
20. The other statement of Mr Bateson which was placed before Mr Justice Aikens was dated 12 May 2000. It is said to be "in support of an application for service of claims forms out of the jurisdiction". It explained further the basis of the claim. It also expressed the belief that England is the convenient forum to hear the dispute. The only sentence relating to an extension of time for service of the Claim Form reads as follows "Finally in view of the short time now available I would also request an extension of time to serve Mr Outhwaite out of the jurisdiction".
21. The order of Mr Justice Aikens records an undertaking given on behalf of the Claimants "To file a Witness Statement dealing with matters raised in relation to the extension to the validity of the Writ". Mr Justice Aikens firstly ordered that the validity of the claim form be extended until 23 May 2000, and secondly that "Pursuant to CPR PTS 6.20 and 19.6(1)(B) the claimant is permitted to serve the Claim Form and Particulars of Claim on the First Defendant, R M Outhwaite the lead underwriter and a member of syndicate 317 and the representative name for Policy MIK3100 in the Lloyds market including those syndicates listed at Defendants 2-39 of Appendix A of the Claim Form out of the jurisdiction [in Guernsey]".
22. No attendance note recording what took place at the hearing has been put in evidence on these applications. However, in a letter dated 7 December 2000 Thomas Cooper wrote that Mr Justice Aikens stated the reason that he requested a hearing was to be taken through the new Civil Procedure Rules "dealing with service on a representative Defendant and his authority to grant leave to serve out of the jurisdictions. Accordingly, although the Judge was taken through the affidavit evidence including the inter solicitor correspondence, the hearing concentrated on service on the representative Defendant". However it is apparent from the undertaking given by the Claimants to file a further witness statement that matters were also raised concerning the extension of the validity of the writ. In the event, for reasons that have not been explained satisfactorily, the Claimants failed to comply with that undertaking.
23. Ms Masters told me her recollection of the hearing, and there is no suggestion other than that I should accept what she told me as evidence upon these applications. She told me that she was "reasonably confident" that she went through the correspondence and made it clear that Freshfields were maintaining that Mr Outhwaite should not be a representative for all the 1991 Syndicates but that there should be a representative name for each syndicate. With regard to the undertaking of a further witness statement dealing with the extension for time for service, she accepts that Mr Justice Aikens did require a further statement be filed, but had the impression that it was not intended that it should go beyond the statement of 11 May 2000. Ms Masters was clearly doing her best to recall what happened during an urgent hearing more than six months ago, but it seems to me unlikely that Mr Justice Aikens would have been asking for an undertaking that what was already in a statement before him be reiterated.
24. Following the order, the Claim Form was delivered to Mr Outhwaite's residence in Guernsey at approximately 6 p.m. on 19 May 2000. Service was therefore effected more than six months after the issue of the Claim Form.
25. With regard to service of the Particulars of Claim, I have already indicated that the parties agreed to extensions of time to 24 May 2000. However on 30 May 2000, the Particulars having still not been served, Freshfields were asked by Thomas Cooper to agree to a further extension of 14 days. Freshfields declined to do so and asked for notice if any application were to be made to the Court. The Claimants had applied to the Court by notice dated 30 May 2000. They requested "a further 14 days in which to serve Particulars of Claim". Freshfields were not informed of the application. Even if they had not expressly asked for notice, they should have been advised in accordance with Part 23.5 of the CPR. The evidence in support of the application gave no indication that time for service had already expired. On 7 June 2000 Mr Justice Morison granted a further seven days for service of the Particulars of Claim. In the event Particulars of Claim were not served until 3 August 2000. The explanation for this given by Mr Bateson is "There seemed to be little point in finalising serving Particulars of Claim until all the outstanding service points had been sorted out". It appears therefore that a deliberate decision was made unilaterally not to serve the pleading, but the Claimants did not seek the Court's approval of this course. By their application dated 12 December 2000 the Claimants apply for an order retrospectively extending the time for service to 5 August 2000.
26. Against this background I turn to the applications made by the 1991 Syndicates. As I have indicated, the Claimants do not now maintain that a Claim Form was validly served on any of the 1991 Syndicates on or prior to 16 March 2000, and therefore the first declaration sought by the 1991 Syndicates is not contentious.
27. Mr Berry submits that Mr Outhwaite could not properly be a representative defendant of all the 1991 Syndicates, and that whether the proceedings were begun with Mr Outhwaite being sued as a representative of syndicates other than his own or by the order of 12 May 2000 Mr Justice Aikens ordered that the proceedings be so continued, this was not in accordance with the CPR. Rule 19.6(1) of the CPR provides as follows: "Where more than one party has the same interest in a claim - (a) the claim may be begun; or (b) the court may order that the claim be continued by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest".
28. Accordingly this application raises the following questions:

1. Does Mr Outhwaite have "the same interest in a claim" as the other members of the various 1991 Syndicates?

2. Was this claim begun against Mr Outhwaite as representative of other syndicate members?

3. Did the order of 12 May 2000 provide that the claim be continued against Mr Outhwaite as representative of the other members of the 1991 Syndicates?

4. If the order of 12 May 2000 did so provide, should it be set aside?

29. Mr Berry submits that the members of different 1991 Syndicates did not have "the same interest in a claim" within the meaning of the Rule. In support of this contention he relies upon the decision of the Court of Appeal in The Irish Rowan, [1989] 2 Lloyds Reports 144. In that case the Court of Appeal decided that one defendant might represent a number of insurers who had subscribed to a policy which contained a leading underwriter clause expressed in broad terms. Mr Berry submitted that the ratio of each of the judgments in the Court of Appeal, or at any rate of the judgments of Purchas LJ and Sir John Megaw, was that this course was permitted by reason of, and only by reason of, the leading underwriter provision. Otherwise, he submitted, the Court of Appeal would have regarded themselves as bound by the decision in Markt and Co. Ltd v Knight Steamship Co. Ltd [1910] 2 KB 1021 that parties suing under a number of similar but different contracts (in that case a number of shippers who had shipped goods on board the defendants' ship under separate bills of lading and had lost their goods in the same casualty) could not be said to have a common interest sufficient to allow representative proceedings. In the slip to which the 1991 Syndicates subscribed there is no leading underwriter clause comparable to that considered in The Irish Rowan, and therefore, Mr Berry submits, the underwriters do not have "the same interest". Mr Berry adds that, whereas the wording considered by the Court of Appeal in The Irish Rowan under the rules then in force referred to the persons having "the same interests in any proceedings", the reasoning of the decision applied to the wording of the CPR part 19.6, "the same interests in a claim"; indeed he submits that the present wording supports his contention more strongly than the old wording.
30. It does not seem to me that the change in wording is significant. In CPR 19.6, as I read the rule, "claim" is used in the sense of proceedings: hence the reference to a claim being "begun" or "continued" by or against persons.
31. I reject Mr Berry's submissions on this point. I assume, without deciding, that the authorities upon which he relied could not properly be distinguished on the basis that they were concerned with claims in contract whereas here the claimants are seeking with restitutionary remedies (although Mr Berry characterised them as contractual restitutionary remedies). I consider, however, that there are two answers to Mr Berry's submission:

1. First, the argument which Mr Berry seeks to advance is, in essence, that rejected by Mr Justice Waller in Bank of America National Trust and Savings Association v Taylor, [1992] 1 Lloyds LR 484, a decision which Mr Berry properly drew to my attention. Mr Berry does not seek to distinguish the decision, but he submits that it was wrong and I should not follow it. More specifically he submits that the reasoning whereby Waller J held that the judgment of Sir John Megaw in The Irish Rowan did not compel him to the conclusion that representative proceedings were not available in the absence of a leading underwriter clause should be rejected. It suffices for me to say that I agree with the reasoning of Waller J, and for the reasons which he gives at [1992] 1 Lloyd's LR pp. 493-494 I do not consider that the judgment of Sir John Megaw precludes me from concluding that representative proceedings are proper despite there being no leading underwriter clause.

2. In any event the phrase "the same interest in a claim" found in CPR 19.6 is to be interpreted with a view to giving effect to the overriding objective in the CPR: see CPR 1.2(B). Specifically it should be interpreted in a way that makes the representative proceedings machinery available in cases where its use would save expense and enable a matter to be dealt with expeditiously. I consider that this undermines Mr Berry's argument that the authorities under the old rules do not allow all the 1991 Syndicates to be represented by one defendant in proceedings governed by the CPR.

32. It seems to me clear that this is an appropriate case for there to be one representative name for all the 1991 Syndicates. Mr Berry suggested no practical reason that there should not be single representation. Theoretically, of course, one syndicate might wish to raise an argument not available to others, but there is nothing to suggest that this is a realistic possibility on the facts of this case. (Equally in The Irish Rowan, as the Court of Appeal recognised, one insurer might theoretically have wished to run a non-disclosure or misrepresentation argument). If this should occur, representative proceedings are flexible enough to deal with it.
33. The second question is whether, in fact, these proceedings were begun by the claimants against Mr Outhwaite as representative of his own and the other 38 syndicates who subscribed to the 1991 policy. This involves interpreting the muddled wording on the Claim Form. Mr Berry observes the contrast between wording used in Appendix A to the Claim Form in relation to Mr Outhwaite's syndicate ("R M Outhwaite 317 syndicate") and that of Mr Charman, the active underwriter of the leading syndicate on the renewal policy ("Mr John Charman of J Charman 488 syndicate at Lloyds"). He invites me to the view that, on the proper interpretation of the Claim Form, Mr Outhwaite was not named as an individual defendant in Appendix A at all. All that is identified is his syndicate, and that is followed by the listing of other syndicates without reference to any individual members of the syndicates. He goes on to point out that the Claim Form does not even identify the year of the syndicate against which action is brought.
34. I have considerable sympathy with these criticisms. I have referred to Mr Bateson's evidence that he decided to draw the list of defendants in this way because, while he intended Mr Outhwaite to be a representative defendant, he added the list of syndicates "out of an abundance of caution". He failed to appreciate that he was seeking to adopt two inconsistent courses. If Mr Outhwaite was representing all the members of the 1991 Syndicates, the other members of any of the 1991 Syndicates were not to be parties to the action, although they would be bound by the result. It is hardly surprising that if at the same time Mr Bateson was attempting to make the other syndicates parties, the resultant document creates confusion. The confusion was aggravated when later attempts were made to serve each of the 39 syndicates, which would of course be inappropriate if Mr Outhwaite was properly a representative defendant.
35. Nevertheless it seems to me that I must interpret the Claim Form in accordance with its wording, without regard to the subjective intention of the person issuing it. I have concluded as a matter of interpretation of the Claim Form it is to be regarded as bringing representative proceedings against Mr Outhwaite on his own behalf and on behalf of other members of the 1991 Syndicates. This seems to me a preferable interpretation to the others available: either that the intention was to begin proceedings against each individual syndicate member although they were not named; or that the Claim Form evinced a futile intention to bring proceedings against the syndicates as unincorporated bodies, despite the reference to Mr Outhwaite indicating that the draftsman of Appendix A to the Claim Form recognised that this course was not available.
36. Mr Justice Aikens probably did not, I think, take the same view when dealing with this case on 12 May 2000. His order that Mr Outhwaite be served as a representative name out of the jurisdiction was made pursuant to CPR19.6(1)(b) - as well as CPR6.20. It is therefore apparent that Mr Justice Aikens understood himself to be making an order that the proceedings continue against Mr Outhwaite as a representative name, on the basis that previously they had not been so pursued. Ms Master submitted that Mr Justice Aikens was merely confirming what he understood the position to be. That seems to me improbable. An order is made under CPR 19.6(1)(b) when a party is being made to represent in the proceedings other persons whom he was not previously representing, and not in order to express the Court's approval of what is already the case.
37. However that may be, as I have indicated, I consider it entirely appropriate that the claims against the 1991 Syndicates should be brought by way of representative proceedings against Mr Outhwaite as representative of himself and all of the other members of the 1991 Syndicates. For these reasons I would not interfere with the order made in this regard by Mr Justice Aikens, if I took the view that an order was necessary to give Mr Outhwaite that representative status in the proceedings.
38. I shall now consider whether I should set aside the order that the Claimants be permitted to serve Mr Outhwaite out of the jurisdiction and to extend the time for service of the Claim Form to be extended. I observe at the outset that Mr Berry does not submit that the Claimants do not have "reasonable prospect of success" in their claim against the 1991 Syndicates. Nor does he submit that the claim does not fall under CPR 6.20(5)(A) and (C) and under 6.20(6). Nor does Mr Berry submit that it would never be appropriate to permit service in a representative defendant out of the jurisdiction.
39. Mr Berry does however submit that it is inappropriate to allow service out of the jurisdiction in this case because it unfairly allows the claim to be pursued against the 1991 Syndicates, particularly because it allows the claim to be pursued against syndicate members within the jurisdiction who are entitled to the protection afforded by the "general rule" limiting the period for service of claims forms. The order extending the period for service of the proceedings removes any doubt that this would be the effect of the order. So, Mr Berry argues, the order circumvents the protection afforded to defendants by CPR 7.5 and 7.6:

"7.5 (1) After a claim has been issued it must be served on the defendant.

(2) The general rule is that a claim form must be served within four months after the date of issue.

(3) The date for service is six months where the claim form is to be served out of jurisdiction.

7.6 (1) The claimant may apply for an order extending the period within which the claim form may be served.

(2) The general rule is that an application to extend the time for service must be made-

(a) Within the period for serving the claim forms specified by rule 7.5; or

(b) Where an order has been made under this rule within the period for service specified by that order.

(3) If the claimant applies for an order to extend the time for service of the claim form after the end of this 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 or

(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.

(4) An application for an order extending the time for service -

(a) Must be supported by evidence; and

(b) May be made without notice."

40. It is to be observed that the relevant Practice Direction stipulates that an application for an extension of time should state all the circumstances relied on, the date of issue of the claim, the expiry date of any relevant extension and "a full explanation as to why the claim has not been served".
41. I hope that I do justice to Mr Berry's submissions with regard to the permission to serve the Claim Form out of the jurisdiction if I state that they fall under three heads:

1. First he submits that by the time that the matter came before Mr Justice Aikens - indeed by the time that the application of 28 April 2000 was made - the time for service of the Claim Form had expired because it was subject to the general rule of service within four months after the date of issue and it was not a Claim Form "to be served out of the jurisdiction". The order of Mr Justice Aikens did not, Mr Berry submits, have the effect of so changing the character of the Claim Form that the CPR would allow the 6 months service period.

2. Secondly, Mr Berry submits that even if the effect of an order permitting service out of the jurisdiction is to allow the extended period for service that in itself is a reason for not making such an order.

3. Thirdly, he argues that, even if it would otherwise be right to allow service out of the jurisdiction, it is inappropriate to do so if Mr Outhwaite is a representative defendant representing persons who are within the jurisdiction and can properly expect the protection of the four months service period.

42. I reject Mr Berry's first argument. His primary submission on this point is that if a Claim Form is "to be served out of the jurisdiction" within the meaning of CPR 7.5(3) that intention must be manifest on the document itself. His alternative submission is that in order for a Claim Form to be for service out of the jurisdiction, it must be so characterised at the end of the four month period.
43. Mr Berry's primary submission first requires consideration of the significance of the address for the 1991 Syndicates given on the Claim Form. At paragraph 3.4 of Practice Direction supplementing CPR part 7, it is provided that in specialist jurisdictions such as the Commercial Court it may be necessary to use a special Claim Form approved by a Practice Direction relating to the specialist proceedings in question. The Commercial Court Practice Direction, which brings into force the Commercial Court Guide, provides for the use in the Commercial Court of form N1(CC). This form accommodates the "Name and address of defendant receiving this claim form". The Notes for Claimants make it clear that the address to be provided is "The address at which it is proposed to serve the defendant (whether within the jurisdiction or outside the jurisdiction)". Accordingly Mr Berry is correct in his submission that the address 33 St Mary Axe, London EC3 on the Claim Form stated in relation to the "defendants 1-39" is to be taken to be the address upon which the Claimants proposed to serve Mr Outhwaite, the representative for these "defendants" when they issued the form.
44. However, I do not accept the argument which Mr Berry then develops: that once a Claim Form specifies an address within the jurisdiction, it cannot thereafter become a Claim Form "to be served out of the jurisdiction" within the meaning of CPR 7.5(3). For example, if within the four months period the Court gave permission for a Claim Form to be served out of the jurisdiction, the intention of the CPR is surely that the Claimant should have six months for service. I therefore reject Mr Berry's submission that the address on the Claim Form is necessarily determinative of the period allowed for service.
45. Nor do I accept that at the end of the four months period, the character of the Claim Form is fixed. If I am right that when permission is given within the four month period to serve a Claim Form out of the jurisdiction, the form is then one which is "to be served out of the jurisdiction", I see no reason for interpreting CPR 7.6(3) as having a different effect if the permission is given after the four months. As I interpret the CPR, the Court is not precluded from giving permission to serve out of the jurisdiction after the four months period, and if it does so the Claim Form is "to be served out of the jurisdiction" and a six months period for service is available.
46. However, I do accept Mr Berry's submission that if the effect of permission for service out of the jurisdiction is to breathe new life into a Claim Form after the four month period, this will always be an important consideration in deciding whether or not permission to serve out of the jurisdiction should be given. CPR 7.6(3) restricts the circumstances in which the Court may make an order allowing service of a Claim Form which has expired. Although CPR 7.6(3) does not, I think, directly apply to an application for permission to serve out of the jurisdiction n these circumstances, in deciding whether or not such permission should be given in a case such as this, the Court will not ignore the strict approach stipulated in CPR 7.6(3) to extending service periods which have expired. If the effect of the order is to set aside the general rule of a four month period and to extend it to six months and an application is made after the end of the four month period, it would only be in rare cases that the Court would permit service out of the jurisdiction unless the conditions stipulated in CPR 7.6(3) are satisfied. If, because the proceedings are representative proceedings, the effect of the order is to set aside the general rule and expose to a claim persons within the jurisdiction who are represented by the nominated defendant, the reasons for requiring the conditions of 7.6(3) to be satisfied upon the application for permission to serve out of the jurisdiction are all the more powerful.
47. I do not consider that on the facts of this case the conditions laid down in CPR 7.6(3) are satisfied. Firstly, I do not consider that the Claimants took all reasonable steps to serve the Claim Form but were unable to do so. Before issuing the Claim Form Thomas Cooper made a request of the Claimants' brokers to obtain representative names of the two policies at Lloyds. They received a response which did not give the information they sought, or at least did not give it unambiguously. The statement that Equitas were representing the 317 Outhwaite syndicate did not deal with the question as to who was representing the other syndicates. If Mr Bateson had thought that the position was satisfactorily clarified, there would have been no reason for him to have added the other syndicates to the Claim Form as defendants "out of an abundance of caution". Nevertheless Thomas Cooper did nothing to clarify the situation, nor did they communicate with Equitas to confirm the position.
48. Having relied upon this information before issuing the Claim Form, Thomas Cooper left it until a day or two before the end of the four months period before seeking to serve the Claim Form upon Equitas. They took the risk that if difficulties arose, they would fail to comply with the rules for service. That was a risk which in a case of this kind there was no good reason to take and it cannot be said that Thomas Cooper did all that was reasonable to ensure that the Claim Form was properly served.
49. Nor do I consider that the Claimants acted promptly in making the application to serve out of the jurisdiction. It should have been clear to Thomas Cooper when they received the letter from Freshfields dated 28 March 2000 that their plans for service of the Claim Form had gone awry. They had learnt by early April that Mr Outhwaite was resident outside the jurisdiction. They were contemplating applying for permission to serve out of the jurisdiction. They did not apply until after Easter, when the Court's Easter vacation had started, because they hoped that the problem would "go away": that the 1991 Syndicates and Equitas would alter their stance. There was no reason to rely upon this hope and to delay in making the application.
50. In these circumstances it seems to me that the power of the courts to permit service out of the jurisdiction should not be exercised to save the Claimants from the consequences of not issuing and serving the proceedings more promptly. I conclude that this part of the order of Mr Justice Aikens should be set aside.
51. I turn to the part of the order of Mr Justice Aikens that the period for service of the Claim Form be extended until 23 May 2000. If my interpretation of CPR 7.5(3) is correct, he would not have been constrained by the provisions of 7.6(3) in considering the application for the extension since he was permitting service out of the jurisdiction, and when he made his order, six months had not passed since the issue of the Claim Form. Although I have decided that the permission for service out of the jurisdiction should be set aside, I shall consider the extension of the period for service on the same basis as Mr Justice Aikens.
52. In his submissions Mr Berry refers to the authorities about extension to the validity of the writ under the old Rules of the Supreme Court: specifically he refers to Kleinwort Benson Ltd v Barbrak Ltd [1987] 1AC 597 and Heaven v Road and Rail Wagons [1965] 2 QB 355. He also refers to the decision of Mr Justice Rix in The "Hai Hing" [2000] 1 Lloyd's Reports 300, 303, where the Judge observed that, in view of the new rules, "The previous jurisprudence may be illuminating" but not "binding in the new circumstances". I do not need in determining these applications to consider how far it is appropriate to have regard to the old jurisprudence when applying the CPR and giving effect to the overriding objective. It suffices for present purposes to say that on no view would the Court extend the period for service of a claim form unless there is good reason for doing so and the circumstances warrant the Court exercising its discretion in an applicant's favour.
53. I have limited information about the basis upon which the Claimants presented their case to Mr Justice Aikens for an extension of time, and the reasons for this evoke no sympathy for the difficulties in which the Claimants now find themselves. First, the 1991 Syndicates were not represented at the hearing, Thomas Cooper not having tried to inform Freshfields of it as they said they would. Secondly, as I have mentioned, no attendance note of the hearing has been put before me. Thirdly, the undertaking to file a witness statement which was given to Mr Justice Aikens was not observed. Fourthly, the information given in Mr Bateson's evidence of 11 May 2000 about the position in Guernsey is contradicted in a further witness statement that he made on 24 November 2000.
54. I should explain this last point: in a witness statement made on 24 November 2000, Mr Bateson stated that Mr Justice Aikens extended the "validity of the Claim Form to 23 May 2000 so as to enable an application (which could not be made before permission was granted to serve out of the jurisdiction) to be made in accordance with Guernsey Law". Ms Masters told me that the evidence in the witness statement of 11 May 2000 that "the judge [in Guernsey] has already given permission to the Court Sergeant to serve Mr Outhwaite in accordance with Guernsey law" overstated the position because although an application had been made in Guernsey, no order had formally be made.
55. I have come to the conclusion that, even if I was not going to set aside the permission to serve out of the jurisdiction, it would be right to set aside the extension of the period for service. The extension of time was required because the application for permission to serve out of the jurisdiction was not made promptly after Freshfields' letter of 28 March 2000, advising Thomas Cooper of the dispute about service. It should have been made immediately or at the latest when shortly afterwards Thomas Cooper learned that Mr Outhwaite was not resident within the jurisdiction. It should have been obvious that an application for permission to serve him out of the jurisdiction was not straightforward and that the Court might require an oral hearing. Thomas Cooper knew that the Court's Easter vacation was coming up. The delay until 28 April 2000 before lodging the application was not justified. This alone seems to me good reason to set aside the order extending the period for service. The fact that the Claimants waited until the end of the limitation period before issuing the proceedings and then until nearly the end of the four month period before attempting to serve them confirms my view that no extension of time for service is justified.
56. The Claimants have also submitted that the order of 12 May 2000 should be set aside because proper disclosure was not made to Mr Justice Aikens. Specifically, they complain about want of disclosure of the following matters:

(1) The full extent and circumstances of the delay in issuing and serving the Claim Form.

(2) The fact that there had not been service upon resident names within the four months period for service so that the Claimants needed to serve on a non-resident name.

(3) The fact that Freshfields had stated that a representative name should be identified and served for each syndicate.

(4) The fact that the address for the 1991 Syndicates given on the Claim Form was within the jurisdiction.

57. I do not consider that there was significant non-disclosure to Mr Justice Aikens of these matters. It is unrealistic to suppose that Mr Justice Aikens did not appreciate that the Claimants had left matters late in issuing and seeking to serve proceedings. Mr Bateson's statement of 28 April 2000 referred to the four months service period for resident names. I have no hesitation in accepting that Ms Masters conveyed to Mr Justice Aikens Freshfields' contentions about the need for different syndicates to have different representative defendants. Since I have rejected the 1991 Syndicates' submissions about the significance of the address on the Claim Form, the last complaint of non-disclosure loses much of its sting. I do not consider that non-disclosure of these matters would be a ground for setting aside the order of 12 May 2000.
58. Before leaving this part of the case, I should make it clear that there is no suggestion of any deliberate attempt to mislead the Court or to suppress information. No such suggestion would have been justified.
59. I should also add this: I have considered whether the breach of the undertaking given to Mr Justice Aikens would of itself justify setting aside the order of 12 May 2000. I have concluded, with some hesitation, that I should not rely upon this as a separate basis for setting the order aside, not least because it was not relied upon by the 1991 Syndicates in their Notice of Application and therefore the Claimants did not have notice before the hearing that they would have to deal with this point. However, in many cases, such a breach of such an undertaking given to the Court would itself justify setting the order aside.
60. I come now to the applications which relate to the service of the Particulars of Claim. In view of the conclusion that the order of 12 May 2000 about service out of the jurisdiction and extension of time for service, I shall express only briefly my conclusions about the 1991 Syndicates' applications to set aside the order of Mr Justice Morison and to strike out the claim for failure to serve the Particulars within the time allowed by that order, and about the Claimants' application for a further extension of time to 5 August 2000. The failure to serve the Particulars within the stipulated time is to be criticised, particularly since it appears that a deliberate decision was taken not to serve them without seeking an extension of time from the Court. If I had doubt about my decision to set aside parts of the Order of 12 May 2000, this would be another consideration that would weigh in the exercise of my discretion. But if taken in isolation from this, these criticisms of the Claimants' conduct would not justify setting aside the order of Mr Justice Morison, striking out the proceedings or refusing to grant retrospectively the extension to 5 August 2000.
61. I should mention three other matters which were the subject of evidence or submissions on these applications. First, at one stage, the Claimants raised an argument that because Messrs Hill Taylor Dickinson had entered an acknowledgement of service on behalf of some of the 1991 Syndicates, those Syndicates had waived their complaint about service. Ms Masters properly abandoned that argument when it became clear that Messrs Hill Taylor Dickinson had acted in error.
62. Secondly, Mr Berry submitted that, in deciding whether to set aside the orders of Mr Justice Aikens and Mr Justice Morison, I should form a preliminary view of the merits of the claims and if I considered them unlikely to succeed, this would be a further reason to exercise by discretion in favour of the 1991 Syndicates. I have not taken into account my views of the strength of the claims in reaching my decisions on these applications. I do not consider that I should comment upon the merits of the claims since, as I understand it, they are continuing against the companies. In any case, I should be reluctant to do so on the evidence which is before me: for example, the only copy of the 1991 slip in evidence is not fully subscribed, and on satisfactory explanation for this has been advanced.
63. Thirdly, I recognise (but do not determine) that in reaching this conclusion, the s.84 claim against the 1991 Syndicates can probably not be brought in new proceedings in view of the limitation period. I do not know whether new proceedings could be brought in respect of the claim for repayment of the additional premium, but this question does not affect my decisions on the applications before me.
64. The conclusions which I have reached means that the Claim Form has not been effectively served upon the 1991 Syndicates, and I shall hear submissions about the precise form of the order that I should make in light of this judgment.