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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Colley v Celtic Pacific Management (Overseas) [2000] ScotCS 335 (6 October 2000)
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Cite as: [2000] ScotCS 335
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Colley v. Celtic Pacific Management (overseas) [2000] ScotCS 335 (6 October 2000)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MACFADYEN in the cause PETER EDWARD COLLEY (AP) Pursuer; against CELTIC PACIFIC SHIP MANAGEMENT (OVERSEAS) LIMITED Defender:
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Pursuer: Primrose; Balfour & Manson
6 October 2000
Introduction
[1] This is an action of damages for personal injury in which the pursuer concludes for payment to him by the defenders of the sum of £200,000 in respect of injuries which he claims to have suffered in an accident on an oil installation stand-by vessel in the Scottish sector of the North Sea on 17 August 1997. The defenders are designed as having a place of business in Hong Kong. The summons was signetted on 22 February 2000, and was served on the defenders by personal service in Hong Kong on 25 July 2000. By an oversight there was not served with the summons any citation such as is required by Rule 13.7(1)(a) of the Rules of Court (see also Rule 16.1(1)(a)(i)). Nevertheless, the summons was lodged for calling and was called on 14 September 2000. The defenders did not enter appearance, but their solicitors wrote to the Deputy Principal Clerk of Session on 18 and again on 21 September inviting him, on the ground that service of the summons had been defective, to "withdraw the Summons from calling". Those letters were placed before me, and I took the prima facie view (a) that it was probably not competent to do as the defenders' solicitors requested, but (b) that it might be that any deficiency in the service of the summons could be cured. I took the view that I should hear submissions on the matter, and therefore put the case out By Order for hearing on 29 September 2000. Although the defenders had not entered appearance, I took the view that, since I had been prompted to put the case out By Order by the requests made by their solicitors in correspondence, it would be appropriate that they should be given the opportunity to appear and make oral submissions. In my interlocutor of 27 September 2000 I therefore authorised such appearance. Prior to the By Order hearing, Lord Penrose's decision in Blackfriars (Scotland) Limited v Laurie (14 July 1999, unreported) came to my attention, and I thought it proper to have it drawn to the attention of the parties.
The Relevant Provisions of the Rules of Court
[2] Rule 13.7 of the Rules of Court provides inter alia as follows:
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"(1) |
Where a summons is to be executed, a copy of the summons which has passed the signet shall be - |
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(a) |
served on the defender with a citation in Form 13.7 attached to it" (emphasis added). |
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It is unnecessary to quote Form 13.7 in full. It is dated, addressed to the defender, names the person effecting service, gives notice of the steps which the defender must take if he wishes to deny the claim, making reference both to entering appearance and to lodging defences, states when calling will take place, and identifies the date of service as (in the case of personal service) the date stated on the citation. There follows a warning of the consequences of failure to enter appearance and lodge defences, and a suggestion that legal or equivalent advice should be sought. The form provides for signature by the person effecting service.
[3] Rule 16.1 provides inter alia as follows:
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"(1) |
Subject to any other provision in these Rules or any other enactment, service of a document required under these Rules on a person shall be executed - |
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(a) |
in the case of an individual [in certain ways]; |
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(b) |
in the case of any other person - |
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(i) |
by leaving the document and any citation or notice [at a place of business]; or |
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(ii) |
by posting the document and any citation or notice [to a place of business]" (emphasis added). |
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[4] Rule 16.11 provides inter alia that:
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"(1) |
A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation." |
The Procedural History
[5] With those provisions of the Rules of Court in mind, it is convenient next to set out in somewhat greater detail the procedural history of the present action. As I have noted, the accident in respect of which the pursuer's claim arises is averred to have taken place on 17 August 1997. I was informed that the summons was drafted in January 2000. It was signetted on 22 February 2000. There then followed, I was informed, correspondence between the pursuer's solicitors and solicitors in Aberdeen acting for the defenders about whether the latter solicitors would accept service of the summons on behalf of the defenders (see Rule 16.10). Eventually, on 7 July 2000, the defenders' Aberdeen solicitors intimated that they could not accept service. It was therefore decided by the pursuer's solicitors that personal service on the defenders should be effected at their place of business in Hong Kong. I was informed that the failure to serve a citation in Form 13.7 was the result of an oversight on the part of the trainee in the offices of the pursuer's solicitors to whom, in the absence both of the responsible partner and of an associate, was delegated the task of transmitting the necessary documents to Hong Kong to enable personal service to be effected there.
[6] The summons was served on the defenders on 25 July 2000. It is not suggested that there was any defect in that service, apart from the omission to serve a citation in Form 13.7. The summons was thereafter upon expiry of the period of notice lodged for calling, and called on 14 September 2000.
[7] The defenders did not enter appearance. Instead, their solicitors wrote to the Deputy Principal Clerk of Session on 18 September 2000 in inter alia the following terms:
"Please note that we shall not enter appearance for the Defender. Service of the Summons was not valid. ... No Citation was attached to the Summons ...
For this failure to comply with Rule of Court 13.7(1)(a) we request that you withdraw the Summons from calling."
On 21 September 2000, having had sight of the certificates of service attached to the summons, which made no mention of service of a citation, they reiterated their request.
[8] The summons and the defenders' solicitors' correspondence were laid before me in chambers. I took the view that, once the summons had called, it was prima facie incompetent to "withdraw the summons from calling" as the defenders' solicitors requested. Further, I took the view that it would in any event be inappropriate to act on that request without giving the pursuer an opportunity to be heard. I therefore decided to put the case out By Order for an oral hearing. Although the defenders had not entered appearance, and could not do so without throwing away the point which they sought to take against the validity of the service of the summons (Rule 16.11), it seemed to me that it would be of assistance to me in dealing with the matter to have submissions made on the defenders' behalf. In putting the case out By Order, therefore, I authorised the defenders to be represented at the hearing.
[9] When the case called By Order, I indicated to counsel for the defender, Mr Clancy, that I doubted the competency of doing as the defenders' solicitors had requested, but invited him to make such submissions as he wished in support of the competency of that course. Mr Clancy in the event accepted that once the summons had called, that step could not competently be reversed. The request made in the defenders' solicitors' letters was therefore departed from.
[10] Mr Primrose, who appeared for the pursuer, then submitted that it would be competent for me in terms of Rule 2.1 to relieve the pursuer of the consequences of the failure to comply with Rule 13.7, and that in the whole circumstances I should do so by making a finding that the service of the summons on the defenders on 25 July 2000 was valid and effective notwithstanding the failure to serve a citation in Form 13.7. He therefore sought to make a motion at the bar to that effect. I heard him in support of that motion. I also gave Mr Clancy an opportunity to make submissions in opposition to it, because it seemed to me that, even if it might be argued that he had no entitlement to do so because the defenders had not entered appearance, it would be of assistance to me in dealing with the matter to hear a contradictor. I understood that both counsel had come to the hearing prepared to make submissions on the point.
Rule 2.1 Relief
[11] Rule 2.1 provides:
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The court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or such other excusable cause on such conditions, if any, as the court thinks fit. |
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Where the court relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), the court may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred." |
The Competency of Granting Relief
[12] Mr Primrose recognised that the court's power under Rule 2.1 is confined to granting relief from the consequences of failure to comply with a provision of the Rules of Court, and is not available for the purpose of relieving a party from the consequences of failure to comply with a requirement imposed by statute. He submitted, however, that the requirement that there be served with the summons a citation in Form 13.7 was a requirement of the Rules of Court, not a requirement of statute, and that consequently relief from the consequences of failure to serve a citation could competently be granted.
[13] In so submitting, Mr Primrose argued that Blackfriars (Scotland) Limited v Laurie was distinguishable, because there the failure in question was a failure to comply with a statutory requirement, whereas the failure in the present case was a mere failure to comply with the Rules of Court. In Blackfriars a citation was served with the summons, but it was not signed by the solicitor who effected the postal service. Lord Penrose held that the Citation Act 1592, which requires that:
"all copys of summoundis and lettres quhilkis salbe deliverit to ony pairtie be subscryvit be the officiar executour thairof",
properly construed, required signature of the citation rather than of the copy summons (Izatt v Robertson (1842 D 476); that the 1592 Act had not been superseded by the current Rules of Court, which contain no express requirement that the citation be signed; that the requirement for signature of the citation therefore still rested on the 1592 Act; that failure to sign the citation was fatal to its validity; and that Rule 2.1 could not be invoked to relieve a party of failure to comply with the requirement of the 1592 Act. In the present case the failure was a failure to serve a citation at all. The requirement that a citation be served had rested, until 1994, at least in part on the Citation Act 1693 (Maclaren on Court of Session Practice, 318; Maxwell, The Practice of the Court of Session 176). The 1693 Act was, however, repealed by Schedule 4 to the Act of Sederunt (Rules of the Court of Session 1994) 1994. The requirement that a citation be served therefore now rested solely upon the Rules of Court.
[14] Mr Primrose also cited, and sought to distinguish, McLaren v McLaren 1956 SLT 324, in which, a summons having been served without a citation, it was held that the citation was a necessary part of the judicial notice to the defender, and that accordingly there had not been effective service. Mr Primrose pointed out that no argument had been advanced in that case that relief might be granted under the then current equivalent of the present Rule 2.1.
[15] Mr Clancy did not seek to contradict Mr Primrose's submission that the requirement of service of a citation now rested on the Rules of Court. He submitted, however, that in a case of complete failure to serve a citation, the reasoning which supported Lord Penrose's decision in Blackfriars remained applicable. The requirement that a citation be served could not be separated from the requirement that the citation be signed. If there was total failure to serve a citation, there was thus failure to comply with the requirement of signature imposed by the 1592 Act. The omission to serve a citation led inevitably to failure to comply with the 1592 Act. On that basis, he argued that it was no more competent to grant relief under Rule 2.1 in the present case than it had been in Blackfriars.
[16] It seems to me to be questionable whether the 1693 Act was truly the basis, before 1994, of the requirement that a citation be served. According to its terms it seems to me to have been concerned rather to ensure that the citation bore "at length" the date of service, and the names and designations of the witnesses. Be that as it may, that Act has been repealed, and the requirement that a citation be served with the service copy summons now seems to me to rest exclusively on the Rules of Court. If that is so, it seems to me to follow that it is competent to grant relief under Rule 2.1 in respect of a failure to comply with that requirement.
[17] Blackfriars is, in my view, distinguishable. It is not clear to me why, when the primary requirement that a citation be served now rests on Rule 13.7, the subordinate requirement that the citation be signed should have been left to rest on a sixteenth century Act of the Scottish Parliament. That is, however, what appears to have happened. The consequence is, as Lord Penrose has held, the unfortunate one that service of an unsigned citation cannot be put right by resort to the power conferred by Rule 2.1. It is no doubt an odd situation if total failure to serve a citation can be cured, but service of a citation which is defective in respect of want of signature cannot be cured. I am not persuaded, however, that I should, in order to avoid that peculiarity, hold that the requirement of service of a citation should be regarded as depending on the 1592 Act. It seems clear to me that Lord Penrose reached the conclusion that he did in Blackfriars with reluctance and regret. I therefore feel free to view the remaining effect of the 1592 Act as narrowly as possible. It does not, in my view, form part of the current basis of the requirement that the service copy summons be accompanied by a citation in Form 13.7.
[18] I am therefore of opinion that there is no proper basis for concluding that the requirement that a citation be served rests on statute rather than, or in addition to, the Rules of Court. I am therefore of opinion that it is competent to grant relief under Rule 2.1 in respect of the consequences of failure to comply with the requirements of Rules 13.7(1)(a) and 16.1(1)(b)(i).
Discretionary Relief
[19] Mr Primrose recognised that, if it was competent for the court to grant relief under Rule 2.1, he required to satisfy me that as a matter of discretion I ought in all the circumstances of the case to grant such relief. He reminded me that after the summons was signetted, there was long correspondence between solicitors acting for the parties discussing the possibility that service might be accepted. The defenders' advisers were therefore fully aware of the pursuer's intention to raise the action. The omission of the citation was the result of excusable oversight on the part of the trainee solicitor undertaking the relatively unusual task of arranging personal service in Hong Kong. There was no suggestion that, because of the omission of the citation, the defenders did not understand the significance of the service of the summons on them. There was, indeed, no prejudice suffered by the defenders as a result of the omission. Relief should therefore be granted.
[20] As regards the form of relief that would be appropriate, Mr Primrose's submission was that I should pronounce an interlocutor relieving the pursuer of the consequences of the failure to serve a citation in Form 13.7 with the service copy summons as required by Rule 13.7(1)(a) (and Rule 16.1(1)(b)(i)), and finding and declaring that notwithstanding that failure the personal service of the summons on the defenders in the hands of their secretary and director in Hong Kong on 25 July 2000 constituted valid and effective service. The width of the remedial power conferred on the court by Rule 2.1(2) was sufficient to support that form of relief (McDonald v Kwok 1999 SLT 593 at 596C-D).
[21] Mr Clancy accepted that the failure to serve a citation had caused the defenders no prejudice. He submitted, however, that it was incumbent on the pursuer to explain how it had come about that the defect in service had not been discovered when the relevant documents returned from Hong Kong. Without such explanation, the pursuer had not placed sufficient information before the court to justify the grant of discretionary relief. Mr Clancy said nothing against the form of relief sought.
[22] In my view the circumstances are such that it would be appropriate to grant relief under Rule 2.1. The omission to serve a citation appears to have been a genuine oversight. The consequent invalidity of the personal service of the summons is in the circumstances a serious matter for the pursuer, because the triennium has now expired, and consequently he would require to invoke section 19A of the Prescription and Limitation (Scotland) Act 1973 if he raised a fresh action. On the other hand, as Mr Clancy accepted, the deficiency in service did not affect the defenders prejudicially. They were well aware in advance, because of the correspondence about acceptance of service, that the action was to be raised. The summons itself contains a clear indication that if decree is to be resisted, appearance should be entered within three days after the date of calling, and that calling will not take place earlier than 42 days after service. It contains a warning that if appearance is not entered, decree may be taken in absence. In a case of personal service, there can have been no uncertainty about the date of service. In any event, confusion about precisely when the period of notice would expire would only be of significance if it resulted in the pursuer taking decree in absence before the defenders realised that it could be taken, and that has not happened. There is no information that would have been conveyed by Form 13.7 (apart from a mention of the timetable for lodging defences) but was not in the event conveyed to the defenders. Edinburgh solicitors were instructed on their behalf who could have entered appearance, if they had considered it appropriate to do so. In these circumstances I see no force in Mr Clancy's argument that it is incumbent on the pursuer to explain why the deficiency was not noticed when the relevant documents returned from Hong Kong. As Mr Clancy himself pointed out, the Certificate of Personal Service Furth of United Kingdom dated 1 August 2000 which is appended to the summons follows exactly the prescribed form (Form 16.2). For some reason that is not clear to me, that form makes no reference to a citation (in contrast to the certificates prescribed in connection with service by a messenger-at-arms or postal service - Forms 16.3 and 16.4 - which do). Whatever the reason (if there is one) for that discrepancy in the forms, I do not find it surprising, or a matter that calls for explanation, that the omission of a citation did not come to light when the certificate was received. I do not consider that the absence of such explanation is ground for refusing relief.
[23] It seems to me that the form of relief proposed by Mr Primrose is appropriate in the circumstances.
Result
[24] I shall accordingly, in exercise of the power conferred upon me by Rule 2.1, relieve the pursuer from the consequences of the failure to serve on the defenders with the service copy summons a citation in Form 13.7 as required by Rule 13.7(1)(a) and Rule 16.1(1)(a)(i), and find and declare that the personal service of the summons effected on the defenders in Hong Kong on 25 August 2000 shall be held, notwithstanding that failure, to constitute valid and effective service.