ROYAL COURT
(Samedi Division)
14 January 1999
Before: Sir Peter Crill, KBE, Commissioner,
and Jurats Herbert, and Bullen.
BetweenVera HarmanPlaintiff
AndPatrick HigginsFirst Defendant
AndMedeva Pharma, LtdSecond Defendant
Application by the second Defendant for an Order that the Court has no jurisdiction to settle the matter in dispute as the proceedings have not been served on the Second Defendant, in accordance with the provisions of Rule 6/7 of the Royal Court Rules 1992, as amended.
Advocate C J Scholefield for the Plaintiff
Advocate M P G Lewis for the Second Defendant
JUDGMENT
THE COMMISSIONER: On the 29 September 1998, an Order of Justice was issued on behalf of the Plaintiff in this action.
She was a lady who had bought some vaccine called Fluvirine from a retail chemist in St Helier on the 4 October 1995, and that vaccine was injected into her by the First Defendant, Dr Patrick Higgins. The Second Defendant is a limited liability company registered in England and was the manufacturer of that vaccine. It is not necessary to say more. There are allegations in the Order of Justice that, as a result of that injection, the Plaintiff fell ill and her health was affected.
There was obviously some correspondence, which we have not been shown, between the Plaintiffs Advocate - Advocate Scholefield - and the Second Defendant, and no doubt the First Defendant, but we were shown two letters upon which Mr Scholefield placed some reliance as indicating the attitude of the Second Defendant.
The first letter, dated 27 March 1998, set out a number of points on behalf of the Second Defendant - it was indeed from the Second Defendant. However, it was not until 18 September 1998 that Mr Scholefield answered it in some detail - this is the second letter - and thereafter, as I have said, the Order of Justice was issued without more ado.
That is not the end of the matter, however, because the date of the injection meant that prescription would fall to be considered: the action would be prescribed on 4 October 1998. Accordingly, after obtaining leave under the Service of Process (Jersey) Rules 1994 to serve outside the jurisdiction, Mr Scholefield, for the Plaintiff, applied to the Greffier Substitute, Mr B I Le Marquand, on the 30 September 1998 for leave to serve a summons on the Second Defendant out of the jurisdiction, to dispense with personal service which is otherwise required in this jurisdiction in respect of an Order of Justice and to order that service to be effected by sending a copy of the Order of Justice with a copy of the Greffiers Order, and the appropriate summons to the Second Defendants registered offices in Leatherhead. The date by which the summons was returnable was mentioned in the Greffier Substitutes Order as being the 23 October 1998.
The Court has been sitting today to hear a summons issued by the Second Defendant, asking the Court to make an Order, first, that the proceedings have not been duly served on the Second Defendant, and that, accordingly, the Court has no jurisdiction to deal with the matter in dispute, pursuant to rule 6/7 of the Royal Court Rules, 1992, as amended, and secondly that the Order of the learned Greffier Substitute of 30 September should be set aside, together with the two other Orders as to costs and any further relief.
Having obtained the Order of 30 September for substituted service, the Plaintiffs Advocate carried it out in as much as there was sent from his chambers a parcel of documents by recorded delivery, to be delivered to the Second Defendant’s registered office. According to the affidavit of Pauline Frances Deakin, a personal assistant at the registered office, those documents - which included a letter ‘without prejudice’ from Vibert & Valpy of the 2 October 1998 - were left at the Company’s premises on Saturday, 3 October, and were in fact delivered to the security guard who eventually handed it on Monday morning 5 October, to Miss Deakin. It is to be observed that, although the order of the Greffier is dated 30 September the letter of Vibert & Valpy, and therefore, one must infer the other documents, with the absence of a summons, which was not included, although the Greffier had ordered that it should be, was not sent until the 2nd day of October. One would have thought that, if time was so pressing, as it clearly was, then at least it should have been sent on the 1 October. It is possible that it was so sent, and that the date, 2 October, was a mistake, but we have not heard any evidence on that point at all.
The question whether there was "proper service", although there was an irregularity in as much as the documents were "served" - and I use those words in inverted commas - before the expiry of the prescriptive period, but without the necessary summons and on a Saturday, which is not a working day, and whether this was the kind of irregularity that this Court has power to deal with, and should deal with, depends on whether or not the Court is prepared to set aside the Greffier’s Order. These matters would fall to be argued before this Court if we decided that the Greffiers Order should not be set aside. If the Greffiers order is set aside, Mr Scholefield has suggested - upon what legal basis it is hard to say - that we should nonetheless maintain the service, such as it was, so that although the order itself is set aside from which substituted service derives its authority, prescription would not run except from the date of the Order - if we were to make it - setting aside the Greffiers Order of 30 September.
I regret that I can see no merit in that argument; indeed it is legally flawed. If the Order is set aside it is a nullity, and nothing that flows from a purported exercise following that Order can stand, and must fall with the Order. I would have thought that was an elementary proposition of law.
Now the rules in relation to substitute service are to be found in Rule 5/4 and 5/10 of the Royal Court Jersey Rules 1992, as amended. Personal service is normally required in the case of an Order of Justice, and unlike the English procedure, the issue of the Order of Justice, is not the commencement of proceedings. Substitute service may be permitted, as I have said, in accordance with Rule 5/10 (1), and I read from it:
"If in the case of any document which by virtue of any provision of rules of court is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order for substituted service of that document."
the other matters are consequential. However, there has to be an affidavit lodged stating the facts on which the application is founded. That is required by Rule 5/10 (2).
That affidavit, as I have already said, was sworn by Mr Scholefield and I need not repeat the reasons for the application as the background is set out in paragraph 7 as follows:
"I further request, in view of the shortness of time before this action in so far as it sounds in tort" - I don’t know what that means, I think it should be in so far as it is founded in tort - "may become prescribed, that the Court Order that personal service may be waived is impractical, and that in lieu thereof the Court may make an Order for substituted service upon the Second Defendant, and that the steps to be taken to bring this document to his notice should be transmission by recorded delivery post to the Second Defendant’s registered office" - which, as I said was done - arriving there on the Saturday morning.
There is a corresponding order in RSC (1999 Ed’n) at Order 65, rule 4, and there have been a number of English judgments on what are the matters that a Court should take into account in deciding whether or not to issue to order for substituted service under Order 65, rule 4. Mr Scholefield has said - and he is entitled to point this out - that whereas in the English jurisdiction there are some statutory provisions allowing the Court in particular circumstances to extend the time of limitation, under the Limitation Act, there are no similar statutory powers conferred on the Courts in Jersey - a fortiori on the Judicial Greffier - and it follows that if the Judicial Greffier has acted as if those rules applied, then I have to say that he was in error.
The question of what is material in an application of the nature that was before the Judicial Greffier has received the attention, fairly recently, of the English Courts and in particular in the case of Paragon Group Limited -v- Burnell and Others, (1991) 2WLR 854 CA, I read from the headnote:
"Following the issue of a writ alleging breaches of a share sale agreement, the method of service for which was prescribed by RSC Order 10, rule 1," - which is not relevant to this argument - "the Plaintiff served it on the Defendants in accordance with the ex parte order for substituted service. The Defendants applied by summons to set aside the Order and for a hearing of the preliminary issue as to whether on the proper construction of R.S.C Order 65 rule 4(1) it was material for the Court to take into account for the purpose of making an Order for substituted service, a clause in the Agreement which provided that any claim in respect of any of the matters referred to in the Agreement would be unconditionally waived if proceedings had not been commenced and served on the Defendants within a specified time. Mr Justice Harman heard the preliminary issue and held that it was not material for the Court to take into account the clause in the Agreement. On the Plaintiff’s appeal:- Held, dismissing the appeal, (Lord Justice Ralph Gibson dissenting), that in deciding whether to make an order for substituted service of a writ under Order 65, rule 4(1) the Court had to consider only whether it was impracticable to serve it in the manner prescribed by Article 10 rule 1, and that accordingly since the terms of the Agreement were not material to the issue whether service could be effected in accordance with Order 10 rule 1, they could not be taken in to account for the purposes of deciding whether to make the Order".
Thus, the decision of Harman. J, was affirmed. The points raised by the learned Judge which are relevant in my view to what the Judicial Greffier had to consider are to be found on page 857 where he says:
"With that background knowledge" - which is to do with a document, and is not relevant here - I turn back to consider when the Court may make an Order for substituted service. It may do so when it appears to the Court’ so plainly the Court must have evidence before it showing what has to be made to appear. That evidence must show to the Court, I suppose, on a balance of probabilities that ‘it is impracticable for any reason’ to serve that document in the manner prescribed. So the reason which may be set out in the evidence may be any reason why that is so in a general way, but in my judgement, it is quite plain that what is required at the end is that the evidence must show that it is impracticable to serve the document, and serve it in the manner prescribed. In my view that requires evidence that the server cannot properly serve it personally or serve it by post because perhaps he has no last known address, - I interpolate there to say that cannot be true in this case because there was a registered office - "or that he cannot serve it by placing it through the letter box" - again that would not be so - "at the premises because he has no reason to believe that within seven days it will come to the intended defendant’s notice. Any evidence which goes to those matters plainly is proper evidence which a Judge must consider, but in my view what must be shown to be impracticable remains, and remains only, that service ‘ in the manner prescribed’ is impracticable. I cannot see that Order 65 rule 4, requires the Court to consider any other matters than why and how it is said that the service in the manner prescribed is impracticable. Thus any amount of evidence may be admitted as to what the Defendant is doing and how he is evading service. If that were the case, the Court must then consider what that material amounts to and decide whether it warrants the making of an Order for service in some other manner than the manner prescribed" - and again at page 858, the first paragraph - "The width of the word ‘practicable’ does not alter the question what it is. One must judge what is practicable or not practicable, and in my view in Order 65 rule 4, it is service that one must examine and the methods of service to see what practicality follows".
There is some support when considering applications for service out of the jurisdiction for the view advanced in the case of Golden Ocean Assurance -v- Martin [1990] 2 Lloyds Reports 215 (the "Golden Mariner Case") for suggesting that, if there are irregularities they can only be cured in exceptional circumstances. In that case at page 220 of the judgment Lloyd. L J refers to a judgement of Sir Roger Ormrod in Camera Care Limited -v- Victor Hasselblad Aktiebolag, [1986] 1 FTLR 348 CA, where the Judge says this:
"I, of course, appreciate that in Leal’s case no attempt at all was made to obtain leave to serve out, the writ was simply served on the on the defendants in Jersey. In the present case leave was obtained but in an irregular manner" - and I am not saying that anything which took place before the Greffier was irregular - that is not the position here - "however, service of process out of the jurisdiction is an unusual assertion by this Court of an extra-territorial jurisdiction which could have international repercussions," - I think that is pitching it a bit high as regards service in England, however, the general position is all right- "so is carefully controlled by the Rules of the Court. It is consequently very important to ensure compliance with the rules, so irregularities should be cured only in exceptional cases".
Mr Scholefield very doggedly advanced the argument that the wording of Rule 5/10 "impracticable for any reason" means that if time is getting short, that itself is a reason for a Court, and for the Greffier, to find it would be impracticable to serve the document personally as required by Rule 5/4. I am afraid that I have to disagree with that submission, however strongly it was put. The authorities seem to suggest the contrary: there must be some evidence as to the impracticability of the service That is as I understand the Paragon Case. And in Advocate Scholefields affidavit there is no reference to why it was impracticable to serve by personal service on the company.
I have already referred to the 6 month gap between receiving the letter from the Second Defendant and replying. During that period, it seems to the Court, steps could have been taken to launch the action earlier - it was at the very last minute that it was launched - and to obtain leave within time so as not to allow the prescriptive period to run. Mr Scholefield has suggested that we should look at the broader aspects of this matter. Generally speaking we should not do anything that would cause injustice. But in that regard whilst I have no wish to disagree with that general proposition, there is a Jersey case which really requires this Court to have regard to the Rules and to follow them. In Jackson -v-Jackson (1966) JJ 579, the Court said this:
"Even if it were open to the Court to allow a variation of procedure in this instance, a test is not whether the refusal to allow the variation causes prejudice to the person who seeks it, but whether the allowing of the variation will cause prejudice to the other party. To allow the variations which the Appellant seeks would deprive the Respondent of the right to plead that the action is time barred. The prejudice caused to her would be complete."
With that view this Court respectfully agrees, and under all the circumstances therefore we are not satisfied that there were the impractical reasons, as required by Rule 5/10, other than the closeness of time to the prescriptive time expiring. We think the Judicial Greffier was wrong to base his decision, as he must have done - because we have no reason to suppose otherwise - on the fact that the prescriptive period was about to close. We were informed by Mr Scholefield that the Greffier took into account the fact that in the United Kingdom - in England - as he has said, there is statutory provision to allow the Court to extend the limitation period, but there is no such provision in our statutes or in our Rules, and until there is, I must again respectfully say that the Greffier is wrong - if that is what he has been doing - to act as if such authority had been given to him or the Court. Accordingly we set aside the Order of 30 September 1998.
I think that is all we are required to do today, and it must follow from what I have said earlier that there was no proper service affected because it was purported to be carried out under an Order that has gone, and I am not prepared to rule - even if I had the power, and I do not think that I have in any case - that the prescription period would reopen itself. That is another matter which will be dealt with by another Court, but in this judgment I merely say that the Order of the Judicial Greffier is set aside and it must follow that anything done or purported to be done under it is likewise set aside.
Authorities
Golden Ocean Assurance -v- Martin [1990] 2 Lloyds Rep. 215
Camera Care Ltd -v- Victor Hasselblad AB [1986] 1 FTLR 348 C.A
Paragon Group -v- Burnell [1991] 2WLR 854 C.A