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Cite as: [2000] EWHC QB 136

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Smith v. David Probyn, PGA European Tour Ltd [2000] EWHC QB 136 (25th February, 2000)

Case No: HQ 9901751

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25th February 2000.

B e f o r e :

THE HON MR JUSTICE MORLAND

	MARK SMITH	CLAIMANT
	- v -
	(1) DAVID PROBYN (2) PGA EUROPEAN TOUR LIMITED	DEFENDANTS

Mr Richard PARKES (instructed by Swepstone Walsh for the Claimants)
Miss C. GIBAUD (instructed by Harbottle & Lewis for the Defendants)

Judgment Approved by the Court for Handing Down.
I direct pursuant to RSC ORD 68r.1. That no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

----------------------------------------------------------

The Hon Mr. Justice Morland.

Mr Justice Morland:

JUDGMENT

1 The Claimant appeals against three decisions of Master Trench given on the 20th January 2000.

2 The first refusing to order that the Claim Form and Particulars of Claim served on Harbottle and Lewis on the 30th November 1999 constituted valid service on the Defendants.

3 The second refusing to grant an extension of time for service of the Claim Form and Particulars of Claim.

4 The third refusing to order that the one year defamation limitation period should not apply.

5 The basis of Mr Richard Parkes's submission in relation to all three decisions on behalf of the Claimant was that the Claimants' Solicitors, Swepstone Walsh, were lulled by Harbottle & Lewis into believing that they would accept service of the Claim Form and the Particulars of Claim on behalf of the Defendants. Mr Parkes did not suggest that Swepstone Walsh were misled and induced into that belief by any positive act of commission but rather by inactive omission on the part of Harbottle & Lewis.

6 Mr Parkes submitted that it would be unjust that the Claimant's claim should be defeated on technicalities and that I should allow in the exercise of my discretion the claim to go forward.

7 My immediate reaction was sympathetic.

8 However it must be remembered that the Civil Procedure Rules are designed to assist in the achievement of the overriding objective. Compliance with the Rules will go a long way towards ensuring that litigation is both economical and expeditious.

9 Although by the end of November 1999 the CPR had been in force for seven months, I suspect that Swepstone Walsh, acknowledged experts in the law of defamation, did not have the details of the CPR in the forefront of their minds when considering the Claimant's case.

10 The Claimant, Mr Mark Smith, is a professional caddie on the European and Australasian tours. He had a dispute with Mr Richard Green, a professional golfer. This dispute was the subject of discussion between the First Defendant, Mr Probyn, the Assistant Director of Operations for the European Tour, Mr Garland, the Director of Operations for the European Tour, and Mr Herdern from the PGA Tour of Australasia. Their conclusions were set out in letter dated the 3rd August 1998 (Page 8 of the Court Bundle). This letter was sent to Mr Smith with copies to Mr Green and Tournament Directors. It is this letter which Mr Smith asserts is defamatory of him. This defamatory meaning is pleaded in Paragraph 4 of the Particulars of Claim (page 6).

11 Solicitors advising Mr Smith would have had to consider carefully the possible defences of justification and qualified privilege including the alleged publication of the letter to people beyond those who required to receive its contents.

12 The incidents which might have given rise to the defence of justification took place in the golf seasons 1996/1997 and 1997/1998. As there is now no possibility of this case being tried before 2001, the Court would be investigating events which occurred 4 or 5 years ago.

13 Mr Smith consulted Solicitors, Cooper & Burnett, who were not defamation experts but who wrote to Mr Probyn an entirely reasonable and responsible letter dated the 8th January 1999 (Pages 13 and 14).

14 This letter was answered by Mr Probyn on the 20th January 1999 (Page 15). In my judgment Mr Probyn was clearly answering Cooper & Burnett's letter in both a personal capacity and on behalf of European Tour. Miss Gibaud on behalf of the Defendants told me that the Second Defendants were wrongly entitled PGA European Tour Limited but should have been entitled PGA European Tour (A company limited by guarantee). Apparently PGA European Tour Limited is another company, now dormant or defunct. Miss Gibaud did not take any technical point on this. In any event I would readily have allowed amendment of the Second Defendants' name to its correct title. Mr Probyn's letter ended:-

"If you pursue further correspondence I will place the matter in the hands of our solicitors"

15 Cooper & Burnett sent a further letter dated the 22nd January 1999 to Mr Probyn which was probably a chasing letter which crossed with Mr Probyn's letter the 20th January 1999 (Page 15).

16 This was followed by Harbottle & Lewis's letter dated the 5th February 1999 (Page 16) who wrote to Cooper & Burnett:-

"We act on behalf of the PGA European Tour.."

"The Tour have asked us to respond to you and in particular to your letters of 8 and 22 January 1999" i.e. in particular page 13 marked "Private and Confidential". Mr Probyn. Assistant Director of Tour Operations"."

1. The letter ends:-

"If you intend to commence proceedings for defamation they will be vigorously defended"

17 Although Miss Gibaud submitted that Harbottle & Lewis did not state that they acted on behalf of Mr Probyn, in my judgment having read the whole tenor of the correspondence, it would be unrealistic to suggest that Page 16 was not written both on his behalf and on his instructions. However I entirely accept her submission that nothing could be implied from that letter to give rise to the belief that Harbottle & Lewis were authorised to accept service of proceedings on behalf of either Mr Probyn or the PGA European Tour.

18 The Claimant instructed Swepstone Walsh in late July 1999. Because the limitation period expired on the 3rd August 1999 they issued the Claim Form (Page 4) on the 30 July 1999. Understandably they did not serve it at once. They had to take full instructions from the Claimant and advise him on the possible defences of justification and qualified privilege. Bearing in the mind the delay and the purpose of a libel case which is the speedy vindication of reputation haste was essential. Although I accept that Mr Smith would be busy as a caddie in August and September, most if not all Tour events would at that time of the year have been in the British Isles or Northern Europe. In my judgment there was no good reason why full instructions could not have been taken from Mr Smith advice given to him and the Particulars of Claim settled by the end of August.

19 However it was not until the 27th August 1999 that Swepstone Walsh wrote (Page 17) to Harbottle & Lewis. The letter ends:-

"We put you on notice that the Claim Form has been issued and will be served on you in due course"

20 Harbottle & Lewis replied on the 1st September 1999 (Page 18). They stated:-

"You have not complied with the recommended pre-action protocol before issuing the claim in this action"

21 Miss Gibaud referred me to CPR 7.0.3 and to a sentence tucked away under the heading "Pre-action Protocols for Personal Injury Claims" at C.P.R. B1 - 002.4

"In accordance with the sense of civil justice reforms, the Court will expect to see the spirit of reasonable pre-action behaviour applied in all cases regardless of the existence of a specific protocol"

22 Even today a defamation protocol is still only in draft form. Nevertheless all judges dealing with defamation cases will expect the spirit of reasonable pre-action behaviour to prevail. To an extent the letter on pages 13 and 14 was in accordance with that spirit.

23 On page 18 Harbottle & Lewis made no mention of service of the Claim Form. It would have been very much better if they had said: "we have no instructions to accept service".

24 Equally prudent Solicitors on receipt of page 18 would have written "Please confirm that you are instructed to accept service on behalf of Mr Probyn and PGA European Tour".

25 Instead silence reigned for three months until at the eleventh hour Swepstone Walsh placed the Claim Form and Particulars of Claim in the Document Exchange on the 29th November 1999 which were received by Harbottle & Lewis on the 30th November. Under C.P.R. 6.7 the deemed day of service is the second day after it is left at the Document exchange.

26 I accept the argument of Mr Parkes that if Harbottle & Lewis had accepted service it was within time because the C.P.R. gives an extra day. Despite the note at CPR 7.5.1 that Rule 7.5 effects no change in the former rules of RSC O.6 r.8 there is a clear contrast between C.P.R. 7.5.(2) and R.S.C. O.6. r8 (1)(c).

27 C.P.R. 7.5(2) reads:-

"the general rule is that a claim form must be served within 4 months after the date of issue."

R.S.C. O.6 r 8(1)(c) reads:-

"a writ is valid.....for 4 months beginning with the date of issue."

28 On the 2nd December 1999 Harbottle & Lewis returned the Claim Forms etc to Swepstone Walsh stating (Page 20):-

"At no stage whatsoever have we informed you that we have instructions to accept service of any proceedings upon behalf of our clients."

29 In my judgment nothing that Harbottle & Lewis wrote, did or failed to do could reasonably have misled Swepstone Walsh into believing that Harbottle & Lewis were authorised to accept service.

30 A Solicitor does not generally have implied authority to accept service of a claim form on behalf of a client. If he does so, he is in breach of his professional duty to his client in the absence of express authority.

31 This is underlined by C.P.R. 6.4. - (1) A document to be served may be served personally, except as provided in paragraph (2).

"(2) where a Solicitor

(a) is authorised to accept service on behalf of a party; and

(b) has notified the party serving the document in writing that he is so authorised, a document must be served on the Solicitor"

32 Therefore in my judgment the Claimant has failed to establish that there was effective service upon the Defendants.

33 In my judgment the Claimant faces an insuperable difficulty in his application for extension of time for serving the Claim Form after the 4 month period allowed under C.P.R. 7.5(2).

34 It cannot be said that the Claimant has taken all reasonable steps to serve the claim form but has been unable to do so. (C.P.R. 7.6.(3)(b). There was nothing to prevent personal service on the Defendants at Wentworth Drive, the address given on the Claim Form. There were 4 months in which to do it. If Harbottle & Lewis were authorised to accept service , the address on the Claim Form should have been theirs. C.P.R.6.13(2).

35 It should be noted that now the general rule is service by the Court (C.P.R.6.3). Swepstone Walsh did not make use of this procedure.

36 Therefore the application for extension of time for service of the Claim Form must fail.

37 In my judgment any application under Section 32A of the Limitation Act 1980 to disapply the Limitation Period is bound to fail because there was no "misrepresentation or other improper conduct" by the Defendants (or indeed by Harbottle & Lewis). The operation of Section 4A of the Limitation Act 1980 has not caused the Claimant prejudice. It is his own failure through his Solicitors to effect service that has caused the prejudice. Discontinuance of the current case and the issue of a new claim form would not avail him. He would face the same unanswerable argument.

38 See Walkley .v. Precision Forgings [1979] 1.W.L.R. 606 per Lord Wilberforce at p.609 D-E, Per Lord Diplock at p.618 D-G and at p.619 B-E.

39 All appeals fail and I uphold the decisions of the Master. The only comfort for the Claimant is that he appears to have a good case in professional negligence against Swepstone Walsh.