Royal Court
(Samedi Division)
4 February 1999
Before: F C Hamon, Esq., Deputy Bailiff,
and Jurats Herbert, de Veulle.
Ashbourne Marketing Limited Plaintiff
And
Alfred G Mosca First Defendant
And
Yankee Exports Inc Second Defendant
IN THE MATTER OF
Appeal by the first and second Defendants against the Order of the Judicial Greffier of 30 October 1998:
On 19 January 1999, [1999.10a] the Court:
1. dismissed the appeal against order for service out of jurisdiction; and
2. stayed appeal against order for substitute service.
Resumed hearing of appeal against order for substituted service, stayed on 19 January 1999
Advocate A D Hoy for the Plaintiff
Advocate A D Robinson for First Defendant
Advocate M P G Lewis for Second Defendant
JUDGMENT
THE DEPUTY BAILIFF: On 19 January of this year we sat to consider the appeal of the First and Second Defendants in an appeal against the orders of the Greffier Substitute, dated 30 October 1998. The only matter that concerns us today is the fact that the Greffier made an Order dispensing with personal service on the Defendants and ordering that service on them be effected by way of substituted service. As a result of a full hearing on that day, on the question of personal service, we ordered that that application should be stayed in order for the Plaintiff to serve the Order of Justice on the Defendants in accordance with Rule 5/2 of the Royal Court Rules (1982) as amended. The relevant rule says this:
"5/2/-(1) except where rules of court or any enactment otherwise expressly provide or the Court otherwise orders, service of any document in any cause or matter may be affected by ordinary service."
And, then of course the other rule that we have to consider is Rule 8/6 which states:
"8/6. Subject to Rule 8/7, non-compliance with any rules of court, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court so directs, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the Court thinks fit."
And, for ease of understanding Rule 8/7 states:
"8/7- (1) No proceedings shall be void, or be rendered void or wholly set aside under Rule 8/6 or otherwise, by reason only of the fact that the proceedings were begun by a means other than that required in the case of the proceedings in question."
Mr Hoy has filed - and we are very grateful to him for it - a set of arguments which cover all the points that we have to consider but taken in the round it is clear that the authorities show that the Rules of the Supreme Court which are to a certain extent similar to the Jersey Rules should be applied liberally, in order so far as is reasonable and proper, to prevent injustice being caused to one party by mindless adherence to the technicalities of procedural rules.
The argument put forward is that the Greffier Substitute may well have been wrong in allowing substituted service but even if he were wrong we should exercise our discretion in the interests of good housekeeping and allow the substituted service to stand. Advocate Lewis has argued before us this afternoon that in his case, where he was dealing with a company in America, the Greffier had no discretion to exercise and no authority under the rules to exercise the discretion.
What we intended was for the water to be tested to see how difficult it was for ordinary service to be effected. In so doing we were very much aware of the affidavit that was before the Greffier upon which he exercised his discretion and I am going to read from paragraph 5 of the affidavit.
"The application for an Order for personal service on the First and Second Defendants be dispensed with and that an Order for substituted service be effected by delivering copies of the Order of Justice on Messrs Bailhache Labesse, is made for the following reasons:-
(i) Messr Bailhache Labesse act for the Second Defendant in an ancillary matter. Attached and marked as exhibit "ADH2" is correspondence relating to that matter. I am therefore reasonably satisfied that the proceedings will be brought to the Second Defendants attention and notice;
(ii) the First Defendant is a director of the Second Defendant, as such substituted service of proceedings on Messrs Bailhache Labesse would place both the First and Second Defendants on notice that proceedings have been issued against them;
(iii) the First and Second Defendants all reside in Maine U.S.A;
(iv) the procedure to serve in Maine is complex and will cause delay.
(v) service on Messrs Bailhache Labesse would be more cost effective for all parties."
Having decided to ask Counsel to test the water what we have before us today is a letter dated 22 January 1999 from some Attorneys At Law in Portland, Maine addressed to The Penobscot County Sheriffs Department in Bangor, Maine and I will read that letter:
"Attention Civil Division:
re: Ashbourne Marketing Limited -v- Alfred G Mosca and Yankee Exports Inc.
Dear Sirs/Madam,
Enclosed please find one original and two copies of an Order of Justice issued by the Advocate for the Plaintiff in the above reference matter now pending in the Royal Court of the Island of Jersey, United Kingdom.
I am requesting that one copy be served upon the Defendant, Alfred G Mosca personally, and one copy be served upon Alfred G Mosca as president and director of Yankee Exports Inc. Mr Mosca resides at 25, Dunning Boulevard, Bangor, Maine, 04001. Mr Moscas business address is: Yankee Exports Inc., 781 Odlin Road, Bangor Maine, 04001. If Mr Mosca requests to see the original please show it to him but you may then retain the original in your possession. Please keep note of the time, date and place of service and that Mr Mosca identified himself to you, or is otherwise known to you, and call me when you have effected service I will then need to prepare an affidavit for your signature.
If you have any questions please feel free to call me. Thank you for your assistance in the matter."
And, underneath the letter, under the signature of a gentleman called James C Hunt, is typed this:
"To whom it may concern: Service upon Mr Mosca was achieved in my first attempt.
Alan Cole,
Deputy Sheriff, Penobscot County
25 January 1999."
That was three days after the letter from Mr Hunt was typed.
We are quite cognisant to the fact that this is no longer the Cour de Billet and we are able to take a wide view of Rules of Court with a view to making sure that no prejudice is suffered because of a technicality. Although Counsel for the Defence has said that R.S.C (1997 Ed’n) O.2/1 is not now quite the same as our Royal Court Rules because they have moved on. Advocate Robertson did point out this passage in R.S.C. (1997 Ed’n) O.2/1/1 pp. 9-10:
"Where a plaintiff, just before the expiry of validity of a writ, purported to serve the writ out of the jurisdiction without leave of the court, renewal of the writ under O. 6, r. 8 was refused. The failure to obtain leave to serve out of the jurisdiction was an irregularity which could be cured by the exercise of the court’s discretion under O. 2, r. 1. The court, however, would not exercise its discretion under O. 2, r. 1 more favourably to the plaintiff than under O. 6, r. 8. The plaintiff should not be allowed to enter through the "back door" of O. 2, r. 1 when he could not properly enter through the "front door" of O. 6, r. 8."
The position at the moment is this. We have questioned Mr Hoy in depth about the prejudice that he is likely to suffer. Mr Hoy says is that if we were to set aside the substituted service order and put the matter as it should have been in the first place by ordinary service on the two Defendants in Maine (a process which was very easily complied with) he is worried that, after the First Defendant received news of the fact that in October substituted service had been served not on his lawyer, but on lawyers in Jersey, he in turn commenced an action in Maine in the same form of the proceedings in Jersey, or on a similar basis. Mr Hoys concern is that it might be argued in Maine that it was in fact the First Defendant who began the action against the Plaintiff in Jersey. We feel that that can be easily cured by the effects of this judgment which, for that reason, we have set out in some detail. We do not feel that the information that was placed before the Judicial Greffier was correct. We do not feel that the Greffier should have exercised his discretion in the way that he did, and perhaps, if it had been pointed out to him what now seems apparent - that the means of process in Maine are perfectly straightforward and simple - he would never have made the order that he did.
We are going to set aside the order for substituted service. We order that the Order by post should now stand. We are going to allow the matter to be brought to the Court’s attention tomorrow afternoon in the usual way. We add that - as the "table" is now prepared and ready - that we will give leave - and no doubt Counsel will draw it to the Court’s attention tomorrow - for the matter to be tabled out of time without penalty.
No Authorities