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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> McKie v. Jack Robinson (Trawlers) Ltd [2004] ScotSC 45 (13 July 2004)
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Cite as: [2004] ScotSC 45
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McKie v. Jack Robinson (Trawlers) Ltd [2004] ScotSC 45 (13 July 2004)

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PORTREE

A4/01
   

JUDGEMENT

of

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
   

in the cause
   

NEIL McKIE

   

Pursuer and Appellant
   

against

   

JACK ROBINSON (TRAWLERS) LIMITED
   

Defenders and Respondents

Act: Mr K J Campbell, advocate, instructed by The McKinstry Company, Ayr

Alt: Mr A D MacLean, solicitor, Henderson Boyd Jackson WS, Edinburgh

 

 

Portree: 13th July 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 25th June 2003; finds the pursuer and appellant liable to Jack Robinson (Trawlers) Limited in the taxed expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

 

Note

History

[1] In this case the pursuer and appellant sought decree against Jack Robinson (Trawlers) Limited for payment to him of the sum of £50,000 to compensate him for loss, injury and damage said to have been sustained by him as a result of their negligence and breach of statutory duty. In what follows I shall refer to them as "the defenders" but, as will shortly become apparent, no notice of intention to defend was ever lodged on their behalf and, strictly speaking, they never entered the process in the action.

[2] The accident which gave rise to the pursuer's claim was said in article 2 of the condescendence to have occurred on or about 31 January 1998 when the pursuer was working in the course of his employment with the defenders as a share fisherman on board a fishing vessel which was then owned by the defenders and was operating just off the coast of Uig Harbour, Portree. The defenders are designed in the instance as a company incorporated under the Companies Acts and they are stated to have their registered office at 1st Floor, 23 Bargate, Grimsby.

[3] On 25 January 2001 (shortly before the expiry of the triennium) a warrant of citation was signed by the sheriff clerk depute. Thereafter, on 31 January 2001, a Process Server in England swore an affidavit in which he stated, inter alia:

  1. That I did on Monday the 29th day of January 2001 at 2.50 o'clock in the afternoon at 1st Floor, 23 Bargate, Grimsby, DN34 4SU, this being the registered office, serve upon Jack Robinson (Trawlers) Limited, an Initial Writ with warrant added along with forms 04 and 07 by posting the same in a sealed envelope marked private and confidential and for their attention through the letterbox. A true copy of the documents served are hereto exhibited marked "A", "B" and "C".

[4] There is no sign in the process of the document which was said to have been marked "A". But there is no dispute that this must have been a copy of the initial writ with the warrant of citation attached, and nothing now turns upon the absence of this document. Exhibit "B" is a copy of the form of citation in Form 04 appended to the Ordinary Cause Rules - see rule 5.2(1). The form bears to have been produced by Messrs Stirling Park who are a well known firm of messengers-at-arms and sheriff officers. It is dated 29 January 2001 and reads, inter alia, as follows:

You, Jack Robinson (Trawlers) Limited, 1st Floor, 23 Bargate, Grimsby, are hereby served with this copy writ and warrant, with Form 07 (notice of intention to defend).

Form 07 is served on you for use should you wish to intimate an intention to defend the action.

IF YOU WISH TO DEFEND THIS ACTION you should consult a solicitor with a view to lodging a notice of intention to defend (Form 07). The notice of intention to defend, together with the court fee of £46 must be lodged with the sheriff clerk at the above address within twenty one days of 29.1.2001.

[5] Towards the bottom right hand corner of the document are the words: "Sheriff Officer, 4 Wellington Square, Ayr" and opposite these on the left hand side of the document is the word: "Witness". But there is no signature beside the words "Sheriff Officer", nor is there one beside the word "Witness".

[6] The document marked "C" is a copy of a form of notice of intention to defend in Form 07 appended to the Ordinary Cause Rules - see again rule 5.2(1). It has the name and business address in Ayr of the pursuer's solicitors. The date of service is stated to be 29 January 2001, and the date of expiry of the period of notice is stated to be 19 February 2001. This document is of course only a copy of the document which was posted through the defenders' letterbox at their registered office and, as already indicated, no notice of intention to defend was ever lodged on their behalf.

[7] On 20 February 2001 solicitors instructed by the defenders informed the sheriff clerk depute that they believed service upon the defenders to have been unsuccessful in that the Form 04 had neither been signed nor witnessed. They further observed that for the defenders to appear by the lodging of the notice of intention to defend on their behalf would cure these defects or irregularities.

[8] On 12 July 2001 the pursuer's solicitors minuted for decree in absence. The papers were evidently put before Sheriff Fraser for his consideration. Thereafter there was a lengthy delay until 7 March 2003 when Sheriff Pollock appointed parties to be heard, if so advised, on the pursuer's motion for decree in absence and on the competency thereof on 27 May 2003. For present purposes it is unnecessary to explain what happened during the period of this delay other than to record that the opinion of English counsel, Mr Stuart Hornett, was sought on behalf of the pursuer on the question whether the proceedings commenced by him had been properly served upon the defenders in accordance with the law of England. Mr Hornett's advice dated 22 May 2002 was in due course lodged by the pursuer's solicitors, and I shall refer to it in more detail shortly.

[9] At the hearing on 27 May 2003 the pursuer was represented by counsel. The interests of the defenders were represented by a solicitor who appeared before the sheriff essentially upon the same basis as had counsel for the defenders in Colley v Celtic Pacific Ship Management (Overseas) Limited 2001 SLT 320. In that case the summons was served on the defenders in Hong Kong but by an oversight there was not served with it any citation such as was required by rule 13.7(1)(a) of the Rules of the Court of Session. The defenders did not enter appearance. Instead, their solicitors wrote to the Deputy Principal Clerk of Session explaining that they would not enter appearance for the defenders and contending that service of the summons had not been valid, no citation having been attached to it. Rule 16.11(1) of the Rules of the Court of Session provides: "A person who enters the process of a cause shall not be entitled to state any objection to the irregularity 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". Rule 5.10(1) of the Ordinary Cause Rules is to the same effect except that it has a reference to "citation" as well as to "service or intimation". After sundry procedure, the Lord Ordinary (Macfadyen) in Colley decided to put the case out by order for an oral hearing, and at page 322J he stated: "Although the defenders had not entered appearance, and could not do so without throwing away the point which they sought to make 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".

[10] Having heard submissions from the parties, the sheriff in the present case made avizandum, and on 25 June 2003 he issued an interlocutor in terms of which he refused the pursuer's motion for decree in absence and dismissed the action for want of valid service of the writ upon the defenders. It is this interlocutor which is the subject of the present appeal.

[11] The sheriff appended to his interlocutor a very full and careful note in which he set out the history of the case, the submissions for the parties and his own conclusions upon these submissions. In short, he held in light of the terms of the Citation Act 1592 and the judgement of Lord Penrose in Blackfriars (Scotland) Limited v Shetland Salmon Co's Trustee 2001 SLT 315 that the citation of the defenders in this case had been a nullity, the form of citation not having been signed, and further that personal service had not been effected upon the defenders in accordance with the law of England as required by rule 5.5(1)(a)(i) of the Ordinary Cause Rules.

[12] The grounds of appeal in the pursuer's note of appeal read as follows:

    1. The sheriff erred in law in holding that the absence of signature on the Form 4 had the effect that citation in this case was a nullity.

    2. The sheriff erred in fact and law that the writ had not been properly served in accordance with English law.

[13] At the hearing of the appeal the pursuer was represented by the same counsel as had represented him before the sheriff. The defenders were represented by a different solicitor, who appeared on the same basis as counsel had appeared for the defenders in Colley.

The relevant legislation and Mr Hornett's advice

[14] It was not in dispute that the Citation Act 1592 (which is an Act of the original Parliament of Scotland) is still in force. It reads as follows:

That the Copies of lettres or chargis be subscryvit be the executor thairof

Item It is statute and ordanit that in all tyme cuming all copys of summoundis and lettres quhilkis salbe deliuerit to ony pairtie be subscryuit be the officiar executour thairof.

[15] Rule 5.2(1) of the Ordinary Cause Rules provides:

    1. Subject to rule 5.6 (service where address of person is not known), in any cause other than -

    1. a family action within the meaning of rule 33.1(1),

    2. an action of multiplepoinding,

    3. an action in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender, or

    4. an action to which rule 3.2(3) applies,

citation by any person shall be in Form 04 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form 07.

[16] In the Ordinary Cause Rules service on persons furth of Scotland is governed by rule 5.5. Rule 5.5(1) provides:

    1. Subject to the following provisions of this rule, an initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree on a person furth of Scotland shall be served -

    1. at a known residence or place of business in England, Wales, Northern Ireland, the Isle of Man, the Channel Islands or any country with which the United Kingdom does not have a convention providing for service of writs in that country -

    1. in accordance with the rules for personal service under the domestic law of the place in which service is to be executed; or

    2. by posting in Scotland a copy of the document in question in a registered letter addressed to the person at his residence or place of business.

[17] Section 725(1) of the Companies Act 1985 provides: "A document may be served on a company by leaving it at, or sending it by post to, the company's registered office". The word "company" is defined in section 735(1)(a), and I did not understand it to be disputed that section 725(1) applied to the defenders in this case. Section 744 provides, inter alia, that, unless the contrary intention appears, in the Act "document" includes summons, notice, order, and other legal process, and registers.

[18] Civil Procedure in England and Wales is evidently governed by the Civil Procedure Rules 1998. Part 6 of these Rules deals with service of documents. Rule 6.2 provides, inter alia, as follows:

    1. A document may be served by any of the following methods -

    1. personal service, in accordance with rule 6.4;

    2. first class post;

    3. leaving the document at a place specified in rule 6.5;

    4. through a document exchange in accordance with the relevant practice direction; or

    5. by fax or other means of electronic communication in accordance with the relevant practice direction.

    1. A company may be served by any method permitted under this Part as an alternative to the methods of service set out in -

    1. section 725 of the Companies Act 1985 (service by leaving a document at or posting it to an authorised place).

Rule 6.4(4) provides:

    1. A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation.

The relevant Practice Direction (6.2) provides, inter alia, that, in respect of a registered company or corporation, each of a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation is a person holding a senior position. (Here it will be recalled that, according to his affidavit, the Process Server merely posted the various documents through the letterbox of the defenders' registered office).

[19] In his advice dated 22 May 2002 Mr Hornett considered the significance under English law of the absence of any signature on the Form 04. At paragraph 25 he stated:

    1. The correct documents have therefore been served on the defender and, as best they can, the provisions of the (Civil Procedure Rules) relating to the content and substance of these documents have been complied with. In my view, therefore, the failure (to) sign the Form 04 does not offend or breach any equivalent provision in the (Civil Procedure Rules) in relation to service. It follows that the proceedings are not invalid for that reason.

[20] Mr Hornett went on to consider whether or not there had been personal service on the defenders as required by rule 5.5(1)(a)(i) of the Ordinary Cause Rules. At paragraph 30 of his advice he stated:

    1. If, therefore, the words "personal service" in paragraph 5.5 Sheriff Court Rules are used in the strict sense, that is to say, service of a document personally on the person concerned, as opposed to a more general sense, I take the view that personal service on the defender company has not been properly effected in accordance with rule 6.4(4). Those instructing me should seek clarification on this point from (the pursuer's solicitor).

[21] In the final paragraph of his advice (which is erroneously numbered 25) Mr Hornett expressed his conclusions as follows:

I take the view that the Scottish Courts do have jurisdiction in this matter. Because there is no English equivalent of the Scottish Form 04 in English process, nor a requirement that the process server sign a citation of any form to effect service, I take the view that the proceedings are not invalid by reason of the absence of a signature. However, personal service under CPR rule 6.4 has not been properly effected on the defender because the proceedings were not served by leaving them with a person holding a senior position within the company. If the words "personal service" in paragraph 5.5 of the Sheriff Court Rules are used in the strict sense, then this would appear to be fatal. Those instructing me should seek clarification of the point from (the pursuer's solicitor).

The parties' submissions

[22] Opening the appeal, counsel for the pursuer submitted that the appeal should be allowed, the interlocutor of the sheriff dated 25 June 2003 recalled and decree in absence granted against the defenders in terms of the craves of the initial writ. After narrating the history of the action, counsel proceeded to develop his submissions in three chapters.

[23] Counsel submitted in the first place that the sheriff had erred in holding that the citation of the defenders in this case had been a nullity since, with one qualification, English law applied to the question of service in this case and the sheriff's decision did not appear to have taken full account of this. Counsel drew attention to the opinion of Mr Hornett in paragraph 25 of his advice to the effect that the failure (which counsel accepted had occurred) to sign the Form 04 did not offend or breach any provision in the Civil Procedure Rules 1998 in relation to service with the result that the proceedings in this case were not invalid for that reason. Counsel submitted that the sheriff had failed to give sufficient weight to this opinion in reaching his own conclusion and so had erred.

[24] Counsel submitted in the second place that the sheriff had further erred in holding the citation of the defenders in this case to have been a nullity since, so it was said, the Citation Act 1592 and the decision of Lord Penrose in Blackfriars were confined to cases in which service had been effected in Scotland. After referring to the terms of the Act, counsel drew attention to Stair's Institutions IV.xxxviii.10-16 which, said counsel, illustrated that in Stair's time (and before) summonses were not executed furth of Scotland and that, in the case of a party who was out of the country, execution of the summons was effected at the market-cross at Edinburgh and at the pier and shore of Leith. Counsel submitted that the Act should be construed in light of the practice narrated by Stair and that, in light of this, it was clear that the scope of the Act was confined to executions of service which were made in Scotland.

[25] Counsel referred here to the decision of the House of Lords in Fergusson v Skirving 1852 1 MacQ 232. In that case the question was whether the Act of 1686, c.4, required that the minutes of the Presbytery of Dumfries (which had deposed the appellant from his office as master of a local parish school) should have been signed at the time, or whether it was sufficient that they should had been signed ex intervallo. At page 233 the Lord Chancellor stated: "The Act accordingly does not say that interlocutors shall be signed at the time, but simply that they shall be signed, and subsequent signature has always been deemed sufficient. I must take an ancient statute like this to operate according to the uniform construction which it has received in Scotland from the time of its passing. Now, how do we arrive at a knowledge of that construction? Why, by the Acts of Courts of Presbytery themselves; and by the submission which has been paid to them". Counsel submitted that what the Lord Chancellor was saying here was that the Acts of the original Parliament of Scotland had not been expressed with the precision found in the case of modern Acts of Parliament, so that it was necessary to look not only at the wording of the Act in question but also at the uniform construction which had been given to it since it had become law. Counsel suggested that this approach supported his submission that assistance in construing the Act of 1592 could be had in Stair's discussion of the manner in which summonses had been served in the period following the Act's enactment.

[26] Counsel next referred to McLaren v McLaren 1956 SLT 324. In that case the husband pursuer raised an action of divorce on the ground of adultery against his wife who was then resident in New York. No formal citation was annexed to the copy of the summons served upon the defender. It was contended that where personal service was effected citation was unnecessary since the form of summons introduced by the Rules of Court in 1934 was addressed to the defender who was charged to enter appearance. But it was held that the citation recording the date was a necessary part of the judicial notice to the defender and that the form used before 1934 should continue to be adopted. At pages 324/5 Lord Guthrie, after observing that the certificate of execution of service appended to the principal summons did not contain a statement that a citation had been annexed to the copy of the summons served on the defender, stated:

The purpose and effect of citation is neatly stated in Thomson and Middleton's Manual of Court of Session Procedure (page 66) thus: "Citation (frequently referred to as service) is the step which brings an action into existence by giving the defender notice of it in the formal manner which the law has appointed, and the date of citation is the date of commencement of the action". Maclaren (Court of Session Practice, page 317) says: "Citation is the judicial notice served upon a person in order to convene him to the Court". Consequently whatever the method of citation adopted, it is an essential step in the initiation of a litigation, and it is as necessary under the present procedure as under the former. It is true that the old form of summons was addressed to "messengers-at-arms, our sheriffs in that part", and the will charged them to cite the defender, while the present form is addressed to the defender and charges him to enter appearance. But the charge in its present form informs the defender that the calling will not be earlier than so many days from the date of service upon him of the summons. Therefore the citation, recording the date, is a necessary part of the judicial notice to the defender. This is true even if the form of service is personal ....... Therefore, in the present case, in the absence of a certificate that a schedule of citation was given to the defender, it does not appear that the induciae have begun to run.

Counsel pointed out that no reference had been made in this case to the 1592 Act and that the point of the case had been that there had been no citation at all. The case therefore did not answer the question in what way a citation should be conveyed to a defender. Counsel submitted that, where service of the citation had taken place in England, it was not necessary that the Form 04 should have been signed.

[27] In Blackfriars an action was raised for payment of a debt allegedly due by a company and the signeted summons was served on the company along with a citation which was unsigned. The company did not enter the process but raised an action for reduction of the citation on the basis of fatal nullity, the citation being unsigned. The defender argued inter alia (1) that the 1592 Act did not apply to anything but the summons itself; (2) that in any event the Act had been superseded by the Rules of the Court of Session; and (3) that the form of citation contained in the rules was not mandatory. It was held (1) that the "copys of summoundis" referred to in the 1592 Act was to be interpreted as a reference to the schedule of citation; (2) that the 1592 Act had not been superseded by the Rules of the Court of Session; and (3) that the signature was an essential of the citation which was therefore a nullity and decree de plano was granted accordingly in favour of the pursuers. At page 317I/K Lord Penrose stated:

It is clear that citation does have a practical role in informing a defender of the raising of the action , and in communicating to him the timetable within which he must act in instructing a defence. It is equally true that the signature of the solicitor or messenger-at-arms may be the least communicative part of the citation, and will frequently be illegible. However, regular citation is an essential step in the initiation of a litigation: McLaren v McLaren. The solicitor or other officer in executing the citation represents his mandate to act for the pursuer and his authority as a qualified law agent to execute the warrant of the court, using Her Majesty's name. One would incline naturally to the view that the signature was an essential of such a formal step in the judicial process rather than a mere check on the fact that there had been a citation. In (Izatt v Robertson 1840 2D 476) the court held that the Lord Ordinary had erred in applying the Act to the service copy summons rather than the citation. But there was no criticism of his view that failure to comply with the Act would imply a nullity. The only purpose of the 1592 Act is to require signature.

Counsel in the present case accepted that the decision in Blackfriars was correct where service had been effected in Scotland with the result that, had the citation in this case been served upon the defenders in Scotland, then the 1592 Act would have applied to it so that it would have been a nullity. But, as already indicated, counsel submitted that the decision in Blackfriars and the 1592 Act had no application where service of the citation had taken place in England. Here counsel drew attention to the comment of Mr Hornett in paragraph 17 of his advice to the effect that the 1592 Act does not extend to England.

[28] Rule 13.7(1)(a) of the Rules of the Court of Session provides that, where a summons is to be executed, a copy of the summons which has passed the signet shall be served on the defender with a citation in Form 13.7 attached to it. Rule 2.1(1) (which corresponds to Rule 2.1(1) of the Ordinary Cause Rules) provides that the court may relieve a party from the consequences of a failure to comply with a provision in the rules shown to be due to mistake, oversight or such other excusable cause. It will be recalled that in Colley the pursuer served the signeted summons on the defenders in Hong Kong, but by an oversight there was not served with the summons any citation such as was required by rule 13.7(1)(a). The pursuer sought to invoke the dispensing power in rule 2.1(1), while the defenders argued that the omission to serve a citation could not be separated from the requirement in the 1592 Act that the citation should be signed, with the result that rule 2.1(1) could not be applied. Lord Macfadyen concluded that Blackfriars was distinguishable upon the basis that, while service of an unsigned citation remained a matter dependent upon the 1592 Act and so could not be cured under rule 2.1(1), the requirement for service of a citation now rested on rule 13.7(1)(a) with the result that total failure to serve a citation could be put right by resort to rule 2.1(1). Counsel in the present case observed that no point had been taken in Colley about the application of the 1592 Act in a case in which an unsigned citation had been served upon a defender overseas, and he submitted accordingly that the decision in Colley was of no assistance in determining the territorial extent of the 1592 Act.

[29] Counsel's third main submission was that the sheriff had erred in holding that the writ in this case had not been properly served upon the defenders in accordance with English law, and that he had erred in particular by relying on a narrow view of rule 6.4(4) of the Civil Procedure Rules 1998 when considering what was meant by "personal service" in the context of the Ordinary Cause Rules, especially rule 5.5(1)(a)(i). Counsel drew attention here to paragraph 30 of Mr Hornett's advice (which I have quoted in paragraph [20] above), and he suggested that the question in this context was whether the expression "personal service" in rule 5.5(1)(a)(i) meant, on the one hand, simply any form of service in Scotland other than postal or edictal service or whether it was, on the other hand, a term of art which, in the context of the present case, referred to the process which was called personal service in English law and which had the particular meaning given to it in rule 6.4(4) of the Civil Procedure Rules 1998. Counsel submitted that the first of these alternatives was the correct one with the result that the Civil Procedure Rules admitted of a variety of modes of service as set out in rule 6.2 (including service in accordance with section 725(1) of the Companies Act 1985) and not merely personal service as defined in rule 6.4(4). Counsel pointed out that service in this case had been effective in accordance with section 725(1) and he submitted that this had accordingly been good although it had not amounted to personal service within the meaning of rule 6.4(4). He submitted that the expression "personal service" in rule 5.5(1)(a)(i) could not be read as being confined to personal service as defined in rule 6.4(4) since section 725(1) was expressly reserved by rule 6.2(2)(a) of the Civil Procedure Rules as a competent mode of service. Counsel further submitted that under the law of Scotland service in accordance with section 725(1) would be characterised as falling within the scope of personal service, and that it could not be the case that the effect of rule 5.5(1)(a)(i) would be to exclude section 725(1) in the absence of an express provision to that effect. Since service under section 725(1) remained competent in England, it had to be fitted into rule 5.5(1)(a)(i) with the result that the expression "personal service" in that rule must be given the broader meaning for which counsel contended. He referred here to Macphail's Sheriff Court Practice (2nd Edn), paragraphs 6.19-29, Maxwell's Practice of the Court of Session, pages 176/8 and Maclaren's Court of Session Practice, pages 317-338, in support of the proposition that the expression "personal service" was not a term of art in Scots law and that it was used in rule 5.5(1)(a)(i) to distinguish postal or edictal service from other methods of service such as service personally or by leaving at a dwellinghouse or place of business. Thus section 725(1) provided a mode of service which should be characterised under the general description of personal service since it was not postal or edictal service, and for this reason service of the initial writ upon the defenders had been validly made.

[30] In response, the defenders' solicitor submitted that the appeal should be refused and the sheriff's interlocutor sustained. He pointed out that more than six years had elapsed since the accident which formed the basis of the pursuer's claim and that more than three years had elapsed since the warrant of citation had been signed by the sheriff clerk depute. He submitted, and I did not understand counsel to dispute, that, if the warrant had not been validly executed within a year and a day of its date, then it had lapsed with the result that the sheriff had been correct to dismiss the action. He also pointed out that Mr Hornett's advice had been dated 22 May 2002 and that no steps appeared to have been taken on behalf of the pursuer to seek the clarification which had been sought by Mr Hornett in paragraph 30 and in the final paragraph of his advice. It was pointed out further that in the present case the court was not being asked to exercise a discretion in favour of the pursuer under rule 2.1(1) of the Ordinary Cause Rules.

[31] The defenders' solicitor drew attention to section 39 of the Sheriff Courts (Scotland) Act 1907, the effect of which is to provide that the Ordinary Cause Rules should be construed and have effect as part of the 1907 Act. He referred to rule 1.4 which provides: "Where there is a reference to the use of a form in these Rules, that form in Appendix 1 or Appendix 2, as the case may be, to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require". He referred also to rule 5.2(1) and submitted that this applied to every case of service of an initial writ in respect of which a warrant of citation had been issued with the result that the use of Form 04 was mandatory even in cases where service had been effected outwith Scotland. He suggested that the importance of citation was clear from the terms of section 3 of the Citation Amendment (Scotland) Act 1882 as well as from the decision in Lord Guthrie in McLaren v McLaren. In the case of service within Scotland a pursuer had to comply with the provisions of rules 5.2, 5.3 and/or 5.4, while in the case of service furth of Scotland it was necessary to comply with rules 5.2 and 5.5. The plain meaning of 5.5(1)(a)(i) was that it was necessary to look at the rules for personal service under the domestic law of the country in which service was to be executed, in this case England. Thus it was not appropriate in the context of this rule to consider what the expression "personal service" meant in the law of Scotland. On the contrary, it was necessary to look to English law to determine whether or not in this case there had been service in accordance with the rules for personal service, and it was clear from the advice given by Mr Hornett that there had been no personal service of the defenders in accordance with the law of England with the result that the pursuer's case was fatally flawed. It was to be observed here that Mr Hornett had said nothing about section 725(1) of the Companies Act 1985 which clearly did not constitute personal service under English law.

[32] The defenders' solicitor further submitted that the absence of a signature on the Form 04 which had been delivered to the defenders' registered office meant that there had been a failure to comply with rule 5.2(1) which was also fatal to the pursuer's claim. In any event the position was governed by the Citation Act 1592 and the decision of Lord Penrose in Blackfriars was, so it was said, directly in point with the result that, under the Act, the absence of a signature on the form of citation had been fatal to the service of the action in this case upon the defenders. The 1592 Act applied to all writs which were issued in Scotland and there was nothing in the Act or the Ordinary Cause Rules to suggest that a different approach to the contents of the documents to be served upon a defender should be taken in the case of service outwith Scotland to that which fell to be taken in the case of service within Scotland.

[33] In summary, the defenders' solicitor submitted that the absence of a signature on the form of citation in this case was fatal in light both of the 1592 Act and of rule 5.2(1), and further that there had been a failure to comply with rule 5.5(1)(a)(i) in that there had been no personal service effected upon the defenders under English law. The sheriff had therefore been entirely right to dismiss the action.

[34] For the sake of completeness, I should record that, when counsel referred me to Macphail's Sheriff Court Practice, I noticed in paragraph 6.25 that it is said: "Personal service applies only to service on a natural person, i.e. an individual; it does not apply to a non-natural person such as a company". This last proposition is said to be vouched by Rae v Calor Gas Limited 1995 SLT 244. I suggested that a copy of the report of this case should be obtained and, when it was produced, I gave parties an opportunity to comment upon it. Counsel suggested that it did not really advance matters in the present case and submitted that the true question in this case was whether the documents which had been served upon the defenders were, as a matter of English law, the correct documents. The defenders' solicitor suggested that the case appeared to deal with personal service under an old rule which was no longer in force about personal service by an officer of court in Scotland, and he pointed out further that the second defenders and appellants were a partnership rather than a limited company.

Decision

[35] Dealing firstly with the absence of a signature on the Form 04, I think that it is important to distinguish between two separate questions that arise in this context. The first is what documents require to be served upon a defender in order to bring judicial proceedings to his notice and so convene him to the court. It is only when this question has been answered and the necessary documents identified that the second question arises, namely by what means these documents should be served upon the defender.

[36] Since the court in this case is a sheriff court in Scotland, this first question must in my view be determined in accordance with the law of Scotland, and it is I think perfectly clear that one of the documents that has to be served upon a defender is a form of citation in Form 04 signed by the pursuer's solicitor or a sheriff officer instructed on his behalf. The necessity for citation in proceedings in the Court of Session and the explanation of this are stated in the passage from the judgement of Lord Penrose in Blackfriars which I have already quoted in paragraph [27] above. And in the sheriff court it is a requirement of rule 5.2(1) which, in its application to the present case, provides that citation "shall be in Form 04 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form 07". Form 04 appears in Appendix 1 to the Ordinary Cause Rules, and it is readily apparent from its terms that it requires the signature of either a sheriff officer or a solicitor. By contrast is to be noted that, in the case of an initial writ the form (see Form G1) provides for the signature of either the pursuer or his solicitor, and the distinction is not hard to understand when consideration is given to the separate functions of the initial writ on the one hand and the citation on the other. As in the case of proceedings in the Court of Session, it is to be expected that the document, the purpose of which is to give judicial notice of proceedings in a sheriff court to a defender in order to convene him to the court (see Maclaren's Court of Session Practice at page 317), should be signed by an officer of the court, namely a solicitor or a sheriff officer.

[37] In paragraph 17 of his advice Mr Hornett observes that the Citation Act 1592 "does not extend to England". It might I think be more correct to say that the provisions of the Act do not form part of the law of England. But this is in my view immaterial since, as I have indicated, the question what documents required to be served upon the defenders in this case falls to be determined in the first instance by the law of Scotland (with the result that I do not think that Mr Hornett was qualified to state, as he did in paragraph 25 of his advice, that the "correct documents have therefore been served on the" defenders). It follows in my opinion that the 1592 Act does apply in this case in exactly the same way as it would have done if service upon the defenders had been effected in Scotland. It was accepted in light of the decision of Lord Penrose in Blackfriars that in this event the absence of a signature on the form of citation would have been fatal to the validity of the citation, and hence of the proceedings as a whole, and I consider that the mere fact that citation in this case was sought to be executed in England does not alter the fact that the absence of a signature on the form of citation is fatal to its validity.

[38] In summary therefore I am of the opinion in light both of rule 5.2(1) and of the 1592 Act that these proceedings were fatally flawed by the absence of a signature on the form of citation delivered to the defenders.

[39] Turning to the question by what means the relevant documents should have been served upon the defenders, I think that, again in view of the fact that the present action was raised in the sheriff court here at Portree, the immediate answer to this question must also be found in the law of Scotland, and specifically in rule 5.5(1)(a) of the Ordinary Cause Rules. (In passing, I observe that this rule governs the service not only of an initial writ, but also "any other order or writ following upon such initial writ" which is plainly apt to include the form of citation). Rule 5.5(1)(a)(ii) has admittedly no application in the present case, and rule 5.5(1)(a)(i) requires that the relevant documents (identified, as they must be, in accordance with the law of Scotland) shall be served "in accordance with the rules for personal service under the domestic law of the place in which service is to be executed".

[40] The question thus arises what is meant by the words "personal service" in this rule. In my view this too has to be determined by the law of Scotland in the first instance, and it is only once this meaning has been established that it becomes appropriate to look at the domestic law of the place in which service has purportedly been executed to see whether the rules for personal service so understood have been satisfied. Thus I do not think that it is appropriate in the context of the present case to enquire what might be meant by the words "personal service" in the law of England. Rather, the question is whether the form of service which took place in England satisfies the meaning of the words "personal service" as these words are to be understood in the law of Scotland, and specifically in rule 5.5(1)(a)(i). If it does, then one has to look to see if this particular form of service has been validly carried out in accordance with the law of England (which would involve, for example, confirming that the proper officer had been engaged for the purpose).

[41] As I have indicated, counsel sought to argue that the words "personal service" in rule 5.5.(1)(a)(i) should be given a wider meaning than at first blush they appear to bear so as to include all forms of service, including service under section 725(1), other than postal or edictal service. In my opinion this will not do. On the contrary, I consider that the words "personal service" in this rule can, according to their plain meaning, only refer to service on a defender personally, with the result that they cannot apply in the case of service on a non-natural person such as a company formed and registered under the Companies Acts.

[42] This last conclusion is I think supported by the decision of the First Division in Rae v Calor Gas Limited. In that case the issue was whether service of the initial writ upon the second defenders had been personal within the meaning of what was then rule 26(a) of the Ordinary Cause Rules. So far as material, this rule provided that a decree in absence which had not been recalled or brought under review by suspension or by reduction should become final (a) on the expiry of six months from its date or from the date of the charge under it, where the service of the initial writ or of the charge had been personal. (For present purposes it is important to notice that exactly the same provision is now to be found in rule 7.5 of the current Ordinary Cause Rules). Four actions of damages were raised against, inter alia, the second defenders in respect of an accident allegedly caused by a mobile heater. The second defenders were a partnership, and sheriff officers had cited them to answer the writs by leaving a full copy of the writ and warrant in each case "in the hands of their servant (manager) within their office and place of business at ..... for their use and behoof". Decrees in absence were in due course were granted against the second defenders who then sought to be reponed. The sheriff found that the method of service in each case had been personal service and that the decrees had become final in terms of rule 26(a) with the result that the reponing notes were incompetent. The second defenders appealed to the Court of Session and argued that the mode of service used in each case had not amounted to personal service upon them as personal service could only take place where the defender was an individual, with the result that the decrees pronounced against them were not final so that they (the second defenders) could after all be reponed. This argument was sustained by the First Division and the appeals were allowed.

[43] In the course of the discussion reference was made to rules 10(1) and 111 of the old Ordinary Cause Rules. Rule 10(1) provided: "(1) Any initial writ, decree, charge, warrant or other order or writ following upon such initial writ or decree may be served by an officer of court on any person: - (a) personally, or (b) by being left in the hands of an inmate of or employee at the person's dwellingplace or place of business". Rule 111 provided, inter alia: "If a schedule of arrestment has not been personally served upon an arrestee, the arrestment shall only have effect if a copy of the schedule is also sent in a registered or recorded delivery letter to the last known place of residence of the arrestee ......". Rules 10(1) and 111 have been superseded in the current Ordinary Cause Rules by rules 5.4(1) and 6.1 respectively. The wording of these new rules is not identical with the wording of their predecessors, but for present purposes they may I think be regarded as identical since they both speak of a document having been "personally" served.

[44] Giving the opinion of the court in Rae v Calor Gas Limited, the Lord President (Hope) stated at page 247:

The same distinction, between service of a writ on the defender personally, and service of it by leaving it in the hands of an inmate or employee at the person's dwelling place or place of business, is made in the provisions of rule 10(1)(a) and rule 10(1)(b). And in our opinion the word "personally", in rule 10(1)(a), has the same meaning as it has in rule 111. It is a method of service which can be effected only in the case of an individual, and then only by placing the writ into the hands of the defender or arrestee personally. The writ cannot be said to have been served on him personally if it is put into the hands of someone else such as an employee, even although this is done at his place of business or at his dwelling place.

Rule 26(a) does not state that the six months rule applies where the writ or charge has been served on the defender "personally". What it says is that the rule applies where the service has been "personal". But in our opinion the adverb "personally" and the adjective "personal" both have the same meaning. Service can only be said to have been personal when the writ has been served on the defender personally. Macphail on Sheriff Court Practice (1st Edn at that time) is careful in paras 6-25 and 6-26 to draw a distinction between what is described as personal service, which is effected when the sheriff officer tenders the writ to the defender in person, and service at the dwelling place or place of business, which is effected by leaving the documents in the hands of an inmate of or employee at the defender's dwelling place or place of business. The description of the method of service as "personal" is confined to service of the writ "personally" in terms of rule 10(1)(a).

A different view is taken in the Stair Memorial Encyclopaedia, Vol 17, para 1016 where, in a discussion of citation and service in the Ordinary Cause Procedure in the sheriff court, a distinction is made between postal service and personal service. Leaving the writ in the hands of an inmate or employee is included in the discussion of the method of service which is described as personal. Counsel for the pursuers did not seek to rely on this paragraph in support of his argument, however, and in our opinion the treatment of the matter in Macphail is preferable as it reflects accurately the language of the rules. For the purposes of rule 26(a), therefore, service cannot be held to be personal unless the writ or charge was served on the defender personally under rule 10(1)(a).

[45] It is of course true that in Rae v Calor Gas Limited no reference was made to what was then rule 12(1)(a)(i) which was the predecessor of the current rule 5.5(1)(a)(i) but, had the point been specifically addressed, it is very hard in light of their decision to see how the First Division could have construed the words "personal service" in rule 12(1)(a)(i) to mean anything other than service upon a defender personally.

[46] If I am correct so far, then it is perfectly clear that there was no personal service upon the defenders in this case in accordance with rule 5.5(1)(a)(i), and it is unnecessary therefore even to consider the question whether the service which did take place complied with the rules for that form of service applicable under the law of England. And even if I am wrong in this approach, and if the words "personal service" in rule 5.5(1)(a)(i) fall to be construed in accordance with the law of England, then it is I think equally clear in light of Mr Hornett's advice, and in particular his reference to rule 6.4(4) of the Civil Procedure Rules, that under the law of England there was no personal service effected in this case upon the defenders.

[47] There remains the question how the provisions of section 725(1) of the Companies Act 1985 are to be fitted into the scheme of rule 5.5(1)(a). Plainly there is no difficulty where the initial writ and associated documents have been posted in Scotland in accordance with rule 5.5(1)(a)(ii), for this would also satisfy section 725(1). But it may be asked what would be the position where the papers are posted, for example, in England or Wales or, as in the present case, left at the company's registered office. This would satisfy section 725(1) but not apparently rule 5.5(1)(a)(i) or (ii). While he sought to argue that the words "personal service" in rule 5.5(1)(a)(i) were wide enough to include service in accordance with section 725(1), I did not understand counsel to argue that a pursuer in a case such as the present might rely upon service under section 725(1) as an alternative altogether to service in terms of rule 5.5(1)(a).

[48] In this context it is interesting to notice the terms of rule 5.4 of the Ordinary Cause Rules which provide for service within Scotland by a sheriff officer. Rule 5.4(1) in particular provides: "(1) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served by a sheriff officer on any person shall be served - (a) personally; or (b) by being left in the hands of a resident at the person's dwellingplace or an employee at his place of business". Reading this provision and the remainder of the rule, one might be forgiven for thinking that there is no other way apart from the methods set out here in which a sheriff officer may effect service of an initial writ. Thus the rule is not qualified by a reference to the provisions of either rule 5.3 or the Citation Amendment (Scotland) Act 1882 which govern postal service or intimation. But it is perfectly clear upon a consideration of these provisions that it is no less competent for a sheriff officer than a solicitor to effect postal service or intimation - see Macphail at paragraph 6.19 - and see also rule 5.5(2).

[49] If, therefore, it is legitimate to read rule 5.4 as being subject to the provisions of rule 5.3 and the 1882 Act (despite the absence of any express reference to these provisions), it may be argued equally that rule 5.5(1)(a) should be read subject to the provisions of section 725(1) despite the absence of any reference to the section. In paragraph 6.29 of Macphail it is suggested that the provisions of rule 5.5 generally in regard to citation of defenders outwith Scotland are "quite unsatisfactory compared with those in the Court of Session". The absence in rule 5.5(1)(a) of any reference to section 725(1) may be thought to be one illustration of this point (and here it is to be observed that rule 16.1(1) of the Rules of the Court of Session is expressly stated to be subject to "any other enactment").

[50] I am myself inclined to think that section 725(1) must be seen as affording an alternative method of service to that set out in rule 5.5(1)(a). But I do not think that I need to reach a concluded opinion on this question since I am in any event persuaded that the absence of a signature on the form of citation delivered to the defenders was fatal to the pursuer's cause.

[51] In addition to the authorities which I have already mentioned, I was also referred to Public Prosecutor v Oie Hee Koi 1968 AC 829 and Maxwell's Interpretation of Statutes (12th Edn) at page 321.

[52] It was not in dispute that the defenders should be found entitled to the expenses of the appeal in the event of success on their part.

 

 

 

 

 

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