QUEENS BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The Society of Lloyd's |
Claimant |
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- and - |
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Richard A Tropp |
Defendant |
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Richard A Tropp (Defendant in Person
Hearing dates : 16 January 2004
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Crown Copyright ©
Mr Justice Gross :
INTRODUCTION
"Each Name and Closed Year Name not domiciled in the United Kingdom hereby irrevocably appoints the Substitute Agent as agent to accept service of any proceedings in the English Courts on his behalf ...".
THE RIVAL ARGUMENTS
ISSUE (I): THE EXISTENCE OF AUA 9
ISSUE (II): THE AUTHORITY OF AUA 9
"(1) Where – (a) a contract contains a term providing that, in the event of a claim being issued in relation to the contract, the claim form may be served by a method specified in the contract; and (b) a claim form containing only a claim in respect of that contract is issued, the claim form shall …be deemed to be served on the defendant if it is served by a method specified in the contract."
" There has long been provision for service pursuant to a contract. Rule 6.15 is a modernised version of RSC 0.10, r.3. The rule makes it clear that service of a claim form pursuant to a provision in a contract is good service where the English court has jurisdiction to try the claim whether jurisdiction is conferred by a term of a contract or vests or is assumed by the court apart from such contract. "
ISSUE (III): CONFLICT OF INTEREST
" .. it is clear that under the relevant bylaws, AUA 9, which is a substitute agency appointed in substitution for the managing agents of Mr. West's syndicates, had or would have had authority to receive service had it been effected on them."
Later in the judgment (at p.15), Mance J. described AUA 9 as an "imposed agent". It is fair to say that the issue before Mance J. in West was very different and that he was not faced with any argument as to conflict of interest; his observations have to be read with that in mind. But it is nonetheless perhaps surprising, if the relationship between AUA 9 and Lloyd's can properly be relied upon to challenge the validity of a service of process clause on a matter as fundamental as a conflict of interest, that the point does not appear to have troubled the learned Judge or counsel at all.
"... there cannot logically be any room for the intrusion of the well-known principles of conflict of interest ...[AUA 9] has no choice in the matter. Nor does the name. Both are bound by the byelaws and resolutions of the council. This is not the case of an ordinary arms-length principal and agent relationship but of a formalised agency within the confines and constraints imposed by the legislative regime of the market into which both agent and name have contracted. The point is therefore fundamentally misconceived ...".
OVERALL CONCLUSION