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URL: http://www.bailii.org/nie/cases/NIHC/Master/2014/7.html
Cite as: [2014] NIMaster 7
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| Neutral Citation No. [2014] NIMaster 7 | Ref: | |
| Judgment: approved by the Court for handing down | Delivered: | 10/01/2014 |
| (subject to editorial corrections)* |
No.11/105424
QUEENS BENCH DIVISION
Between:
Plaintiff;
Defendants.
Master McCorry
[1] By Writ of Summons issued 7 September 2011, in which the Southern Health and Social Care Trust is named as first defendant and Universitair Ziekenhuis Gent (Ghent University Hospital) as second defendant, the plaintiff: "claims damages for personal injuries, loss and damage sustained by him by reason of the negligence of the Defendants their servants and agents, in and about the examination, care, control and treatment of the Plaintiff." This is a clinical negligence claim arising out of the referral by the National Health Service in the form of the plaintiff's home trust (first defendant) for complex surgery to be carried out by the second defendant, a renowned centre of excellence in the performance of such surgery. The plaintiff underwent several surgical procedures at Ghent University Hospital in Belgium between 7 September 2009 and 15 October 2009, with after care being provided by the National Health Service here. There appears to be an issue as to whether or not the correct Health Trust has been named as first defendant, but whilst that issue has been raised by the plaintiff it has not been raised by the first defendant, who did not appear and was not the subject of any submissions at the hearing of the applications presently before this court. The second defendant, with leave of the court, entered a conditional appearance to the plaintiff's purported service of the notice of writ on the University Hospital on 3 September 2012 by fax and tracked airmail, which was delivered to the University Hospital on 6 September 2012, the validity of the writ expiring on that date. The second defendant does not deny that the notice of writ was delivered to the University on that date but says that the mode of service was not a proper one which allowed for acknowledgment of service.
[2] The court must consider a number of applications, the first being the second defendant's application by summons issued 28 March 2013 pursuant to Order 12, rule 8 and Order 11, rule 5, for orders (a) that the writ of summons has not been duly served on the second defendant and (b) that service of the writ be set aside as against the second defendant. By summons issued 6 March 2013 the plaintiff requests orders: (a) pursuant to Order 6, rule 7 extending the validity of the writ of summons and (b) pursuant to Orders 15, rule 6 and 20 rule 5, substituting Belfast Health and Social Care Trust in place of or in addition to the first defendant. Having heard detailed argument by the parties and on considering the lengthy skeleton arguments, more properly to be characterised as written submissions, it seems that the two substantive issues in contention which the court must decide in these applications are: firstly, whether the writ or notice of writ was properly served on the second defendant having regard to the various means of service available to the plaintiff under applicable Rules of Court or Convention or Regulation; and secondly, if it has not been properly served whether this court can, or should, deem service good using order 2, rule 1 to correct an irregularity.
1. The first issue. Has the Writ or Notice of Writ been properly served on the second defendant?
(a) The Legal Framework
[3] Order 11, rule 5 provides:
"5. (1) Subject to the following provisions of this rule, Order 10 rule 1(1), (4) and (5) and Order 65 rule 4, shall apply in relation to the service of a writ, or notice of a writ, notwithstanding that the writ or notice is to be served out of the jurisdiction.
(2) Nothing in this rule or in any order or direction of the Court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.
(3) A writ, or notice of a writ, which is to be served out of the jurisdiction-
(a) need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected; and
(b) need not be served by the plaintiff or his agent if it is served by a method provided for by rule 6 or rule 7.
(4) An official certificate stating that a notice of a writ as regards which rule 6 has been complied with, has been served on a person personally, or in accordance with the law of the country in which service was effected, on a specified date, being a certificate-
(a) by a British consular authority in that country, or
(b) by the government or judicial authorities of that country, or
(c) by any other authority designated in respect of that country under the Hague Convention,
shall be evidence of the facts so stated.
(5) An official certificate by the Secretary of State stating that notice of a writ has been duly served on a specified date in accordance with a request made under rule 7 shall be evidence of that fact.
(6) A document purporting to be such a certificate as is mentioned in paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such a certificate.
(7) In this rule and rule 6 "the Hague Convention" means the Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters signed at The Hague on 15th November 1965."
[4] Order 10, rule 1 provides:
"(1) Subject to the provisions of these rules or any statutory provision a writ must be served personally on each defendant by the plaintiff or his agent.
(4) Where a defendant's solicitor indorses on the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made.
(5) Where a writ is not duly served on a defendant but he enters an unconditional appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance."
[5] Order 65 is the belt and braces provision for service of documents and provides:
"1.--(1) Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the Court is required to be so served.
(2) Paragraph (1) shall not affect the power of the Court under any provision of these Rules to dispense with the requirement for personal service.
2. Personal service of a document is effected by leaving a copy of the document with the person to be served.
3. - (1) Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any statutory provision, be effected by serving it in accordance with rule 2 on the mayor, chairman or president of the body, or the town clerk, clerk, secretary, treasurer or other similar officer thereof.
(2) Where a writ is served on a body corporate in accordance with Order 10 rule 1(2), that rule shall have effect as if for the reference to the usual or last known address of the defendant there were substituted a reference to the registered or principal office of the body corporate.
4. - (1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally or is a document to which Order 10 rule 1 applies, it appears to the Court that it is impracticable for any reason to serve that document in the manner prescribed, the Court may make an order for substituted service of that document.
(2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded.
(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.
5. - (1) Service of any document, not being a document which by virtue of any provisions of these Rules is required to be served personally, or a document to which Order 10 rule 1, applies may be effected-
(a) by leaving the document at the proper address of the person to be served, or
(b) by post, or
(c) by FAX in accordance with paragraph (2A); or
(d) through a document exchange in accordance with paragraph (2B)."
[6] Essentially therefore the service outside the jurisdiction regime applicable in this case, before taking into account modifications arising from international Convention or European Regulation, may be summarised as follows:
(i) Subject to the provisions of the Rules the default means of service is personal service on a defendant;
(ii) Nothing in the Rules authorises anything to be done which is contrary to the law of the county in which service is to be effected;
(iii) A writ or notice of writ for service outside the jurisdiction need not be served personally as long as it is served in accordance with the law of the country in which it is to be served.
It is not contended by the plaintiff that the notice of writ was served personally or that service was acknowledged by the second defendant's solicitor, and the second defendant having entered a conditional appearance with leave, and there being no order for substituted service, the key issue is whether the notice of writ was served in accordance with the law of the country in which service is to be effected, in this instance Belgium, which is both a Hague Convention state and a member of the European Union. Each party therefore engaged the services of Belgian lawyers to advise as to service within Belgium, and have exhibited affidavits from their respective experts.
[7] The second defendant has exhibited an affidavit by M. Thierry Vansweevelt, an attorney practicing at the Bar of Leuven and Brussels. He avers that civil proceedings in Belgium are governed by the Code of Civil Procedure 1967 under which the normal initiating process is a writ of summons which must be served upon the defendant by a bailiff of the district in question. Article 43 of the Code stipulates that the writ must be signed by the bailiff and sets out the other formal requirements. The effect of non-compliance is that the writ is null and void. He concludes that the writ in the present case having been served by fax and airmail and therefore not in accordance with the Code was null and void. This was essentially the initial basis for the second defendant's application.
[8] The plaintiff retained M. Patrick Marnef, a member of the Dutch speaking Brussels Bar who in drafting his affidavit had the benefit of seeing M. Vansweevelt's affidavit. He does not take issue with that affidavit so far as it goes, but emphasises that it does not take into account the relevant European Law. He avers that service between member states of the European Union is regulated by Regulation (EC) No. 1393/2007 repealing Council Regulation (EC) No.1348/2000, the 28th provision of the preamble of which notes that the Regulation has been adopted by the United Kingdom. The primary means of service under the Regulation is through the "transmitting and receiving agencies" to be designated by each member state: for example the appropriate agency in this jurisdiction is the Master (Queen's Bench and Appeals). However, article 14 of the Regulation provides for service by postal service. It states as follows: "Each member state shall be free to effect service of judicial documents directly by postal service on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent." In reality Article 14 is broadly replicating the service regime within the United Kingdom where the starting point is personal service but this is then broadened to allow for a range of methods of service permitted by the Rules. M. Marnef concludes that service of the writ by tracked airmail should be accepted if this tracked airmail was done by means of a registered letter with acknowledgement of receipt or equivalent. Having seen the Post Office receipt and the completed Track and Trace confirmation of receipt he was of the view that the method adopted by the plaintiff in this case accords with Article 14 and is therefore proper service. The second defendant does not accept that the precise method adopted by the plaintiff is in fact compliant with Article 14, and this is where the real debate between the parties lies.
(b) The method of service adopted
[9] The plaintiff had a choice of two methods of service by post, the first being by "International Signed For Letter (Registered Post) where the item is tracked until it leaves the United Kingdom and only delivered if signed for. The method actually adopted by the plaintiff was Track and Trace. I was referred in the course of the hearing to a document downloaded from the Royal Mail website entitled "Track & Trace". Whilst the document was not formally exhibited to either party's affidavit it was not suggested by anyone that it did not contain an accurate description of the Track & Trace service and what it meant in practicable terms. Under the heading "What is Track & Trace and how do I use it?" it explains: "Track and Trace lets you check the delivery status of trackable items you've sent or which have been sent to you. If you've used Royal Mail Signed For you can use Track and trace to confirm when your item has been delivered". It seems implicit from this that Track & Trace and Royal Mail Signed For are not one and the same and that the latter is a particular method included in Track & Trace which involves acknowledgement of receipt by signing. Exhibited is the Post Office receipt showing posting on 3 September 2012 to a destination address 185 Universitair Zeikenhu 9000 (address apparently not validated), with a Track and Trace slip showing that the item posted on 3 September 2012 was delivered in Belgium on 6 September 2012. Interestingly the receipt refers to "ISF Air Letter" which might suggest that the plaintiff in fact paid for the International Signed For Air Letter Service although the plaintiff has not adopted that position. However, what is clear is that although the plaintiff can show that the letter with the Notice of Writ was delivered to its destination on 6 September 2012, and the second defendant does not deny that such was the case, the plaintiff cannot show that anyone signed for the letter and the second defendant concedes only that the letter was delivered to somewhere in the University Hospital complex. In other words, the plaintiff can only establish delivery by the postal service to the second named defendant's address but not acknowledgement of receipt by the receiver.
[10] M. Marnef raises the issue of validity of service in respect of which Article 867 of the Belgian Judicial Code provides "a method of safeguarding proceedings where there has been any defect in any procedural shortcoming". In a sense this seems to bear some resemblance to Order 2, rule 1 of the Northern Ireland Rules because it provides that omissions or irregularities in respect of procedural forms or notification do not give rise to nullity where it can be shown either that the proceedings produced the result intended by the law, for example service putting the party served on notice of the proceedings, or that due account was taken of the fact that the parties had not been notified of the provisions in question. However, this does not really address the first issue before this court, which is whether or not there has been proper service, but rather where service is not proper the court can act to prevent a nullity, or in other words, the second question for this court which I will deal with below. Likewise, the second defendant's argument that as the plaintiff relies solely upon service by post pursuant to Article 14 of the Regulation, where Belgian Law does not of itself permit postal service, the Belgian court cannot therefore alter the operation of Article 14.
[11] Thus the first question for this court comes down to whether or not the mode of service adopted by the plaintiff in this case satisfies the Article 14 requirement of "by registered letter with acknowledgement of receipt or equivalent." The plaintiff contends that proof of delivery by the Post Office meets the requirement whereas the second defendant says that there has been no acknowledgement of receipt or its equivalent. Certainly it is common case that there has been no acknowledgement of receipt so the plaintiff must therefore seek refuge in the words "or equivalent". However, I think that what is or is not "equivalent" is measured by reference to the words "acknowledgement of receipt" rather than proof of delivery which is a different thing. That being the case I must conclude that the plaintiff has not complied with the requirements of Article 14 that postal service be by registered letter with acknowledgement of receipt or equivalent, and therefore that notice of writ has not been duly served according to that provision.
The second Issue: The Notice of Writ having been served improperly, can this court correct the irregularity pursuant to Order 2, rule 1?
[12] The plaintiff's application is for extension of the validity of the writ of summons pursuant to Order 6, rule 7, but on the running of the application the question was posed by the court whether if the notice of the writ had been served but not in strict compliance with the Regulation, could, or should, the court cure that irregularity pursuant to Order 2, rule 1. The application was adjourned for further hearing with supplemental skeleton arguments/written submissions. It seems to me that at the time the notice of the writ was purportedly served the writ was still valid, although only just, as it is accepted by both parties that it was delivered on the final day for validity. The plaintiff therefore has the options of requesting the court for extension of validity pursuant to Order 6, rule 7 to allow proper service; or of requesting the court to cure the irregularity pursuant to Order 2, rule 1 deeming good the service on 6 September 2012, or dispensing with service. As the purpose of Order 6, rule 7 is to extend the period for service beyond the normal 12 months from date of issue upon the plaintiff demonstrating good reason for delay, rather than some irregularity in service which arguably might not constitute good reason, it seems to me that the more appropriate course is to pursue the Order 2, rule 1 route.
[13] Order 2, rule 1 provides:
"(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.
(2) ..the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."
In relation to Order 2, rule 1 generally, The Supreme Court Practice 1999 Edition ("The White Book") at paragraph 2/1/3/ states: "The authorities show that O.2,r.1 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 technicalities in the rules of procedure."
[14] The White Book also states at Rule 2(1)(3):
"The failure to obtain leave to serve out of the jurisdiction was an irregularity, which could be cured by the exercise of the courts discretion under Order 2, Rule 1. The court, however, would not exercise its discretion under Order 2, Rule 1 more favourably to the plaintiff than under Order 6, Rule 8. The plaintiff should not be allowed to enter through the "back door" of Order 2,Rule 1 where he could not properly enter through the front door of Order 6, Rule 8".
Order 6, rule 8 is of course the pre 1999 English equivalent of Order 6, rule 7 in the Northern Ireland Rules and the back door analogy is drawn from the observation of Slade L.J. in Leal v Dunlop Bio Processes International Ltd [1984] 1 WLR 874:
"Likewise, in my opinion, it would have been an improper exercise of the registrar's discretion under Ord. 2, r.1 to make good the irregular service of the writ retroactively in this case, where he could not properly have renewed the writ under Ord. 6, r.8. When seeking the indulgence of the court under Ord.2,r.1, in circumstances such as the present, a plaintiff cannot, in my opinion, expect the court to exercise its discretion more favourably than it would have been prepared to exercise it on an application under Order 6, r 8. If he cannot properly enter through the front door of Ord.6, r.8 he should not be allowed to enter through the back door of Ord. 2, r1."
Also in that case Sir Roger Ormrod emphasised "the importance to ensure compliance with the Rules of Court and that only in exceptional circumstances should irregularities be cured or deemed good by the exercise of the courts discretion." This gives rise to some debate in the present case as to whether the appropriate test to be applied by the court in deciding whether or not to exercise the Order 2, rule 1 discretion is "exceptional circumstances" or the Order 6 rule 7 test of "good reason". I have to say that I do not understand what Sir Roger Ormrod was doing was setting a test or standard but merely pointing out that it would only be in exceptional cases that the court would use Order 2, rule 1 to cure an irregularity. In any event, in Kuwait Oil Tanker Co. SAK v Al Bader [1997] 2 All E.R. 855 the Court of Appeal exercised the Order 2, rule 1 discretion to cure irregularity in obtaining leave to service outside the jurisdiction and in so doing held that the applicable test was not exceptional circumstances but good reason, where there had been a bona fide mistake and no prejudice caused to the defendant.
[15] Both parties cite the decision of Nicholson L.J. in Patterson v The Trustees for St Catherine's College [2003] NIQB 25, overturning an early refusal by this court to exercise the Order 2, rule 1 discretion. I draw little benefit from that decision in the present case other than the wisdom of the learned Lord Justice at the time, because it was a case which turned very much on its own particular facts, and where there was more than a suggestion that the mistake by the plaintiff's solicitor had resulted from his having been misled by the defendant's insurers.
[16] An important consideration in any application under Order 6 rule 7, and also important in deciding whether or not to exercise the Order 2, rule1 discretion to cure an irregularity is whether or not by so doing the defendant may be denied a limitation defence, because that is where the issue of whether or not there is prejudice to the defendant most often arises. The second defendant contends that if the court were to extend the validity of the writ of summons or cure the irregularity by deeming good the purported service on 6 September 2012, it would be denied a limitation defence in the present case. Before returning to the affidavit of M. Marnef on the issue of limitation under Belgian Law, I note that section 3 of the Foreign Limitation Periods (Northern Ireland) Order 1985 states:
"(1) Subject to the following provisions of this Order, where in any action or proceedings in a court in Northern Ireland the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter
(a) the law of that other country relating to limitation shall apply in respect of that matter for the purpose of the action or proceedings; and
(b) except where that matter falls within paragraph (2), the law of Northern Ireland relating to limitation shall not so apply.
(2) A matter falls within this paragraph if it is a matter in the determination of which both the law of Northern Ireland and the law of some other country fall to be taken into account.
(3) The law of Northern Ireland shall determine for the purposes of any law applicable by virtue of paragraph (1)(a) whether, and at the time at which, proceedings have been commenced in respect of any matter; and accordingly [F1 the Limitation (Northern Ireland) Order 1989] (new claims in pending proceedings) shall apply in relation to time limits applicable by virtue of paragraph (1)(a) as it applies in relation to time limits under [F1 the Limitation (Northern Ireland) Order 1989].
(4) A court in Northern Ireland, in exercising in pursuance of paragraph (1)(a) any discretion conferred by the law of any other country, shall so far as practicable exercise that discretion in the manner in which it is exercised in comparable case by the courts of that other country.
(5) In this Article "law", in relation to any county, shall not include rules of private international law applicable by the courts of that county, or in the case of Northern Ireland, this Order."
[17] Halsbury at Volume 68 (2008) 5th Edition paragraph 1235 summarises the equivalent statutory provisions applicable in England and Wales and notes: "The foreign law relating to the limitation of claims is to be treated as a matter of substance rather than as a matter of procedure in such cases, with the effect that as a general rule, in relation to the litigation of foreign claims in England and Wales, the foreign limitation period applies, even where it has barred the remedy without extinguishing the claim. .. Where a court in England and Wales, applying the law of another county relating to limitation, is called upon to exercise any discretion conferred by that law, it must, so far as practicable, exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other country." M Marnef, at paragraph 10 of his affidavit, avers:
"It is important to understand the limitation period for medical negligence proceedings in Belgium. In Belgium we make a distinction between contractual liability and non-contractual liability of medical institutions or doctors. There will be contractual liability whenever the patient and the hospital sign a contract for specific services. The limitation period for a claim based on contractual liability according to Belgian Law is 10 years. Therefore, there is no risk that the claim of the plaintiff would be time barred in the near future. When no contract is signed between the patient and the hospital, the patient could base himself on the non-contractual liability of the hospital. In this case a fault, damage and a causal connection between the two is necessary and has to be proven. The limitation period of a claim based on non-contractual liability is 5 years from the day the victim gets knowledge of (1) the damage or its aggravation and of (2) the person or institution responsible for his/her damage. The claim will be time barred any way after 20 years from the day of the event that caused the damage. Since the surgery took place in September 2009, it will be time barred in September 2014 at the earliest. Based on these limitation periods in Belgium, it would be possible to start a new procedure by serving a new Writ in the High Court in Belfast if it were decided that service of the current writ is invalid."
[18] The second defendant's expert did not deal with the issue of limitation issue so that so far as these applications are concerned the periods set out by M. Marnef are unchallenged. Counsel for the second defendant suggests that M. Marnef is confusing limitation periods with periods of validity, but I do not think that is the case, they are simply dealing with separate issues and in raising limitation as opposed to validity the plaintiff's expert is dealing with the issue of potential prejudice which is simply not dealt with by the second defendant. If this is correct then it seems to me that no prejudice would be suffered by the second defendant, in terms of being denied a limitation defence, should validity be extended pursuant to Order 6, rule 7 or the defect in service cured pursuant to Order 2, rule 1.
[19] The 1999 Edition of the 'White Book' at paragraph 2/1/3 (page 10) states that: "Defective service of proceedings, however gross the defect, and even a total failure to serve, where the existence of the proceedings is nevertheless known to the defendant, is an irregularity which can be cured by the court by the exercise of discretion under O.2, r.1." and cites as authority for that proposition Golden Ocean Assurance Ltd and World Mariner Shipping SA v Martin, The Golden Mariner [1990] 2 Lloyds Rep 215. In that case, the plaintiffs claimed indemnity under contracts of insurance against some 46 defendants domiciled in 26 different jurisdictions, including 7 in the United States. All defendants were properly named and attributed their proper addresses on the writ but as a result of a mistake by the process server in the United States, each defendant was served with a writ intended for another defendant and one defendant received no writ at all. At first instance the judge refused rectification under O.2, r.1 because the errors in service were so fundamental as to nullify the proceedings. The Court of Appeal held that he was wrong to say that no service of the process had taken place at all and he ought to have exercised his discretion to treat the errors as irregularities. This decision is considered by the House of Lords in Phillips v Symes (No.3) [2008] UKHL 1, where the principles laid down therein were applied by the Court of Appeal later the same year in Olafsson v Gissurarson (No.2) [2008] EWCA Civ 152.
[20] In Philips v Symes the question before the Court concerned two sets of proceedings commenced back to back in England and Switzerland, with in each case the claimant in one being the respondent in the other. The English proceedings were commenced by a claim form issued in the High Court on 16 December 2004 followed by the proceedings in Switzerland issued 3 February 2005 in respect of exactly the same facts as those the subject matter of the English proceedings. The question was whether, in the light of the Swiss proceedings the English court must decline jurisdiction and impose a stay, which in turn depended upon which court was first seised of the proceedings within the meaning of article 21 of the Lugano Convention ("any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established"). It was common case that the two cases related to the same cause of action between the same parties. The " Court 'first seised' is the one before which the requirements for proceedings to become definitely pending are first fulfilled," (per European Court of Justice in Zelger v Salanitri [1984] ECR 2397 paragraph 14). The established English Law was that proceedings become "definitely pending" only when they are served on the defendant (Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502: Court of Appeal), whereas in Switzerland the position is that proceedings are held to be definitely pending as soon as they are issued. On the day before the claim form was issued in England the appellants had obtained a worldwide freezing order on the respondent's assets on undertaking to issue and serve a claim form. On the following day the claim form was issued but was erroneously stamped by the High Court "Not for service out of the jurisdiction". The proceedings including the freezing order and other documents had to be served on the respondent in Zurich in accordance with the Provisions of Hague Convention articles 2 and 3, which was done by the authorities in Zurich on 21 December 2004. The documents included English and German translations. However, before the package of documents were handed to the respondent the Swiss authorities, noting that the claim form had been stamped "not for service outside the jurisdiction" removed the English language copy from the package and it was not therefore served, although the German language version was included. This was known to the respondent by the time she issued her own proceedings in Switzerland on 3 February 2005, but the appellant remained unaware of the situation until 9 February 2005. Peter Smith J in the High Court acceded to the appellant's application dispensing with service of the Claim Form pursuant to r.6.9 CPR, which decision was overturned by the Court of Appeal, which stayed the proceedings having considered the application of CPR r.3.10 (which the House of Lords subsequently held per Lord Brown of Eaton-Under-Heywood paragraph [32] was not materially different from the old O.2, r.1.). At paragraph [29] of his judgment Lord Brown held that it was clear that but for the error by the Swiss Judge or Clerk in removing the claim form from the package of documents to be served, it would have been served and the respondents suffered no prejudice because of the lack of an English translation. At paragraph [35] Lord Brown held:
"In making the order pursuant to rule 6.9 Peter Smith J was not thereby declaring valid and effective service which had previously been ineffective; rather he was holding the previous service to have been valid and declaring that it was unnecessary to have served the English Language claim form to make it so. It was in this sense that he was dispensing with service. There was no more question here, therefore, than in The Golden mariner of "retrospective validation"."
It seems to me that what in effect Peter Smith J was doing was deeming service good rather than dispensing with service (or rather further attempt at service of a document which had in reality already been served).
[21] Having established the court's power to dispense with service under r.6.9, Lord Brown considered whether the court should in its discretion exercise such power. At paragraph [37] he held:
"On any view the power is one to be exercised sparingly and only in the most exceptional circumstances. It is difficult to suppose, for example, that it could ever properly be exercised if there had been no process of service whatever. Consider in this regard article 27(2) of the Lugano Convention:
"A judgment shall not be recognised (2) where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to arrange for his defence."
There can be no question here but that the respondents were served with "an equivalent document": they had not only the German translation of the omitted claim form but the detailed particulars of claim (in both English and German) as well."
He continued at paragraph [38]:
"In my judgment the circumstances here were indeed exceptional, the call on the exercise of the court's discretion compelling. As stated, the respondents plainly suffered no prejudice whatever by the failure to serve the original claim form but rather sought to exploit it, to steal a march on the appellants."
[22] Turning then to Olafsson v Gissurarson. Once again this was an appeal against a first instance decision to dispense with service of the claim form under CPR r.6.9. Olafsson was an Icelandic businessman and Gissurarson a Professor at the University of Iceland. Olafsson claimed that Gissurarson had published defamatory material about him on a website in England. He issued proceedings in England and requested the court to serve them on Gissurarson in Iceland through the appropriate channels. The documents were given to Gissurarson in Iceland but were not served in accordance with Icelandic law because he was not asked to, and consequently did not, sign a declaration confirming receipt of them. He did not acknowledge service of the claim form and Olafsson entered default judgment, which Gissurarson applied to set aside. The judge held that the case was an exceptional one in which the court should exercise its r.6.9 discretion to dispense with service despite the fact that the limitation period had passed. On appeal Gissurarson submitted that the court had no power to make the order and alternatively that it was not an appropriate exercise of the discretion to implead a foreign defendant by dispensing with service after the limitation period had expired. Dismissing the appeal the court of Appeal held: (1) that the case was truly exceptional. Olafsson was entitled to serve proceedings out of the jurisdiction in Iceland under CPR r.6.19 because Iceland was a party to the Lugano Convention 1988. He had taken appropriate steps to have the claim form served in Iceland. It was understandable that he had thought that the claim form had been duly served according to Icelandic law even though it had not. It was a case of a claimant making an ineffective attempt within time to serve by a method permitted by the rules. Gissurarson would not suffer prejudice as a result of the court dispensing with the formality of service of a document that had already come into his hands before the end of the period for service, whereas in the absence of an order dispensing with service the claim would be time-barred. (2) Where the circumstances were such that justice required an order dispensing with service in a Lugano convention case, for the purpose of ensuring that an otherwise potential domestic time bar would not defeat the claim, there was no reason in principle why the court should not make the order sought in a truly exceptional case.
[23] At paragraph [23] of his judgment in Olafsson Clarke MR set out the circumstances in which service may be deemed good by reference to the judgment of Neuberger L.J. in Kuenyehia where he summarised the effect of the case law in these terms:
"[26] In our view, the effect of the reasoning of this court .. is as follows. First, it requires an exceptional case before the court will exercise its power to dispense with service under r 6.9, where the time for service of a claim form in r.75(2) has expired before service was effected in accordance with CPR Part 6. Secondly, and separately, the power is unlikely to be exercised save where the claimant has either made an ineffective attempt in time to serve by one of the methods permitted r 6.2 or has served in time in a manner which involved a minor departure from one of those permitted methods of service. Thirdly, however, it is not possible to give an exhaustive guide to the circumstances in which it would be right to dispense with service of a claim form".
[24] At paragraph [32] Clarke M.R. observed:
"In my judgment, at any rate viewed from a national perspective, the defendant has not shown that the judge erred in principle or that the exercise of his discretion was outside the parameters laid down by the authorities. He was entitled to hold that this was an exceptional or, I would say, truly exceptional case. . the claimant does not need to serve the claim form in order to bring it to the defendant's attention, there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact and the defendant accepts that he received the claim form before the end of the permitted period of service. . Apart from losing the opportunity of taking advantage of the point that service was not in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document which has already come into the his hands before the end of the period for service. On the other hand in the absence of an order dispensing with service, the claimant's claim will be time-barred and he will be deprived of a trial on the merits of his claim. In my judgment, on the particular facts of this case, where the claim form was issued in time, and delivered to the defendant within the period for service by a method of service which the claimant and his solicitors could reasonably have thought was a reasonable method of service, and where the defendant know precisely what the claim was from the claim form, it would be unjust and contrary to the principle of the overriding objective that cases should be determined justly to refuse the relief."
[25] The Second defendant points out that the irregularity which the plaintiff seeks to have cured in this instance is not a breach of the Rules but rather non-compliance with a statute namely Council Regulation (EC) 1393/2007. Dicey, Morris & Collins, the Conflict of Laws15th Edition at paragraph 8-048 notes:
"As will be seen in Chapter 11, the service of originating process is not a mere administrative step. The general principle set out in Rule 29 is that the Court has jurisdiction over a defendant if and only if he is served with process in England or abroad in the circumstances authorised by, statute or statutory order. Where the Brussels 1 Regulation or the Lugano Convention applies, service does not found jurisdiction, but nevertheless a failure to effect service or originating process may preclude enforcement of a subsequent default judgment. For these reasons, it is of great importance that the defendant has been properly served."
[26] However it seems to me that this point has been covered by Clarke MR at paragraph [45] of his judgment by reference to Lord Brown at [32-33] of his judgment in Philips v Symes, referring to CPR r3.10 (which it will be recalled the House of Lords has held to be not materially different to Order 2, rule 1):-
"[45] At [32-33] Lord Brown further analysed rule 3.10 by reference to the decision of this court under RSC Order 2 rule 1, which was the forerunner of rule 3.10, in Golden Ocean Assurance Ltd v Martin (The Golden Mariner) [1990] 2 Lloyd's Rep 215 .. Lord Brown said this:
[33] The question in the Golden Mariner, just as the question here, is whether the "attempt to serve the writ" was or was not "ineffective". It was held there to have been not ineffective, but effective. That was not a "retrospective validation". Why should service not similarly be declared to have been effective here? The question is one for our domestic law, just as the question of when an English court is seised of proceedings is purely one for domestic law (and, indeed, the question of precisely what documents have to be served to achieve effective service out of the jurisdiction under the Hague Convention is purely one for domestic law)"
"I think that Lord Brown must there have been saying that the service or purported service could be declared to be valid under CPR 3.10, just as service had been declared to be valid under RSC Order 2 rule 1 in the Golden Mariner."
Clarke MR continues at [51]:
"At [37] Lord Brown considered whether it was appropriate to make an order which had the effect of altering the priority of the seisin of proceedings under an international Convention. He said this: (He goes on to quote the same passage set out by me at paragraph [21] above.)
[27] The point which emerges from this is that the court will not demure from exercising its Order 2, rule 1/CPR O3.10 discretion to correct an irregularity because it relates to service under an international convention such as the Hague or Lugano Conventions. However, it seems to me that it does not stop there because Lord Brown considers the issue in the light of United Kingdom domestic law, and that must include not only Rules of Court but also statute, or directly applicable law emanating by Regulation from European Law, such as Regulation 1396/2007. That, I believe, deals with the second defendant's objection on principle to the court's exercise of its Order 2, rule 1 discretion in situations such as in this case.
[28] The plaintiff having adopted Olafsson, and Phillips v Symes which it follows, as its sheet anchor the second defendant's seeks to distinguish that case on the basis that it is not on all fours with the facts of the present case. This is undoubtedly correct. Mistake by a third party is a theme common not only to Olafsson v Gissurarson and Phillips v Symes but also in "The Golden Mariner", and it is not too controversial to say that a plaintiff coming from a starting point of seeking to cure an irregularity where the mistake causing the irregularity was not that of itself or its lawyer but of someone else, will generally be in a stronger position than where the irregularity was caused by its own mistake. However, there is no authority to say that for Order 2, rule 1 relief to be granted in this type of circumstance, the mistake must be by a third party. Of more importance, in terms of establishing where justice lies, and whether the circumstances are truly exceptional, is to consider whether the service which has been achieved was effective in bringing to the attention of the party served the details of the claim made against it, and whether or not there has been prejudice to the party being served by the failure by the plaintiff to effect service by a stipulated method.
[29] I am of the view that in this case, as in Philips v Symes and Olafsson v Gissurarson, service was not ineffective having regard to the purpose of service of notifying a defendant of a claim against it with sufficient particularity as to enable it to meet that claim. In this case service was not rendered ineffective simply because it was not achieved by a method which allowed for acknowledgement of receipt as required by the terms of Article 14 of the Regulation. The second defendant has not sought to argue that the plaintiff was not entitled to serve a notice of writ, and has not denied that it received the notice of writ within its period of validity (albeit on the last day of that period). In other words it has, for the purposes of this application received a valid notice of writ and retrospective validation is not therefore required pursuant to Order 6, rule 7. That being so, as in The Golden Mariner, Philips v Symes and Olafsson v Gissurarson, why should the plaintiff be required to attempt another service which complies strictly with Article 14 of the Regulation of that which has already been effectively served? It seems to me that the only purpose to be achieved by that is to require the service of a writ which has already been effectively served, but by so doing forcing the plaintiff to do so outside the validity period. This is where the question of prejudice arises to be considered. As I have already indicated at paragraph [18] above there is no prejudice to the second defendant in the sense of it being denied a potential limitation defence. The plaintiff in this case is still within the primary limitation period of five years.
[30] That really brings us back to the crux of this case and the reasoning of Clarke M.R. at [32] of his judgment in Olafsson which I set out at paragraph [24] above, where he held that the judge at first instance was entitled to find that the circumstances were truly exceptional, and that the claimant did not need to serve the claim form in order to bring it to the defendant's attention, there being no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact, where the defendant accepted that he received the claim form before the end of the permitted period of service.
As in that case the only loss to the second defendant in this case is an "opportunity of taking advantage of the point that service was not in accordance with the rules", or to use the language adopted by Lord Brown in Philips v Symes "steal a march" on the plaintiff. The second defendant has not demonstrated that it will suffer any other prejudice, and that prejudice, in so far as it can be described as such, must be balanced against the loss to the plaintiff, if Order, 2, rule 1 is not used by the court to correct the irregularity in service, which is that the plaintiff will be required to re-serve notice of the writ outside the period of validity. In those circumstances, and to borrow the words of Clarke M.R.:
" In my judgment, on the particular facts of this case, where the claim form was issued in time, and delivered to the defendant within the period for service by a method of service which the claimant and his solicitors could reasonably have thought was a reasonable method of service, and where the defendant knew precisely what the claim was from the claim form, it would be unjust and contrary to the principle of the overriding objective that cases should be determined justly to refuse the relief."
I therefore conclude that this is a proper case for this court to exercise its discretion pursuant to order 2, rule 1, in order to correct the irregularity of service of the notice of writ by deeming service of that Notice by the Track and Trace system used, by which it was delivered to the second defendant's on 6 September 2012, as good service. I therefore dismiss the second defendant's application to set aside service of the writ of summons.
[31] The plaintiff's application for leave to amend the writ of summons so as to substitute Belfast Health and Social Care Trust in place of the Southern Health and Social Care Trust as first named defendant appears to be non-contentious and in the circumstances I make the order sought.
I will hear counsel as to costs at their convenience.