Collier v Williams [2006] EWCA Civ 20

“Methods of service—general 6.2 - (1) A document may be served by any of the following methods– (a) personal service, in accordance with rule 6.4; (b) first class post; (c) leaving the document at a place specified in rule 6.5; (d) through a document exchange in accordance with the relevant practice direction; or (e) by fax or other means of electronic communication in accordance with the relevant practice direction. (2) A company may be served by any method permitted under this Part as an alternative to the methods of service set out in– (a) section 725 of the Companies Act 1985 (c.6) (service by leaving a document at or posting it to an authorised place); (b) section 695 of that Act (service on overseas companies); and (c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain). Personal service 6.4 – (1) A document to be served may be served personally, except as provided in paragraph (2) 6.2 - (1) A document may be served by any of the following methods– (a) personal service, in accordance with rule 6.4; (b) first class post; (c) leaving the document at a place specified in rule 6.5; (d) through a document exchange in accordance with the relevant practice direction; or (e) by fax or other means of electronic communication in accordance with the relevant practice direction. (2) A company may be served by any method permitted under this Part as an alternative to the methods of service set out in– (a) section 725 of the Companies Act 1985 (c.6) (service by leaving a document at or posting it to an authorised place); (b) section 695 of that Act (service on overseas companies); and (c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain). 6.4 – (1) A document to be served may be served personally, except as provided in paragraph (2) (2) Where a solicitor– (a) is authorised to accept service on behalf of a party; and (b) has notified the party serving the document in writing that he is so authorised, a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order. (3) A document is served personally on an individual by leaving it with that individual. (4) 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. (5) A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with– (a) a partner; or (b) a person who, at the time of service, has the control or management of the partnership business at its principal place of business. Address for service 6.5 - (1) Except as provided by Section III of this Part ] (service out of the jurisdiction) a document must be served within the jurisdiction. (2) A party must give an address for service within the jurisdiction. (3) Where a party– (a) does not give the business address of his solicitor as his address for service; and (b) resides or carries on business within the jurisdiction, he must give his residence or place of business as his address for service. (4) Any document to be served– (a) by first class post; (b) by leaving it at the place of service; (c) through a document exchange; or (d) by fax or by other means of electronic communication, must be sent or transmitted to, or left at, the address for service given by the party to be served. (5) Where– (a) a solicitor is acting for the party to be served; and (b) the document to be served is not the claim form; the party's address for service is the business address of his solicitor. (Rule 6.13 specifies when the business address of a defendant's solicitor may be the defendant's address for service in relation to the claim form) (6) Where– (a) no solicitor is acting for the party to be served; and (b) the party has not given an address for service, the document must be sent or transmitted to, or left at, the place shown in the following table. Nature of party to be served Place of service Individual • Usual or last known residence. Proprietor of a business • Usual or last known residence; or • Place of business or last known place of business. Individual who is suing or being sued in the name of a firm • Usual or last known residence; or • Principle or last known place of business of the firm. Corporation incorporated in England and Wales other than a company • Principal office of the corporation; or • Any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim. Company registered in England and Wales • Principal office of the company; or • Any place of business of the company within the jurisdiction which has a real connection with the claim. Any other company or corporation • Any place within the jurisdiction where the corporation carries on its activities. • Any place of business of the company within the jurisdiction. (7) This rule does not apply where an order made by the court under rule 6.8 (service by an alternative method) specifies where the document in question may be served.”

"Mere nomination by the defendant himself, or authorisation without such written confirmation are, in my view, insufficient for the purposes of endowing a solicitor with the requisite power and obligation to accept service on the defendant's behalf"

“56. That brings me to CPR 6.5 (5) and (6). In construing those rules it is necessary to have in mind also CPR 6.4 (1) and (2) as well as 6.5 (2) and (3). It appears to me that, reading all those rules together, the position is as follows: once the proceedings are on foot, ie the claim form has been served; documents which need to be served are to be served on the opposite parties' solicitor if he or she has one. If there is no solicitor acting then provided only that the opposite party has not given an address for service, service may be effected by sending the document in question to, or leaving it at, any of the places of service listed in the table to CPR 6.5. 57. But the position is different in relation to service of the claim form. The combined effect of 6.4 (2) and 6.5 (5)(b) is, as it appears to me, to require personal service of the claim form on any defendant, even if that defendant has a solicitor acting, unless that solicitor has notified the claimant that he is authorised to accept service and has notified the party to be served of that fact. 58. I cannot accept the suggestion of Mr. Yeo that in 6.5 (5) "acting" as to be construed to mean "instructed to accept service". That is not what 6.5 (5) says. If that was what it was intended to mean the draftsman would surely have used the words which appears in 6.4(2). 59. Nor do I think that Mr. Yeo is right when he says that the Rules Committee cannot have intended a defendant who has not instructed a solicitor to be in a worse position than a defendant who has done so (in the sense that the service options are wider in the latter case). I accept that the paramount objective underlying the relevant rules is to ensure that the proceedings are brought to the attention of the party to be served. If that party has instructed a solicitor the address could be obtained from the solicitor. If no solicitor is acting it may be impossible to ascertain the whereabouts of the party to be served. Wider service options are, therefore, necessary to achieve the objective.”

“(a) the parties agree as to the terms of the order sought;” (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.”

“perhaps you would be kind enough to nominate solicitors to accept service.”

“We act for Mr Douglas Maggs and have for attention your letter of 30 June with enclosure. We are taking instructions and will revert to you.”

“Given the time available for us to serve the Claim Form with Particulars we would ask for a response within the next 7 days.”

“Our client has not resided at 47 Hays Mews for some months now. We don’t know what the arrangements are for forwarding the post.”

“(1) Any ambiguity as to the Defendant’s usual or last-known place of residence is entirely of his own making. His own solicitor believed him to have resided at 47 Hays Mews (20 above), and nothing has been said by him to explain away that belief, presumably acquired as a result of his instructions. (2) For the Defendant to object that the Claimants have failed to show sufficient energy in finding out how to serve him, he must also rely on his own solicitor’s persistent failure to answer requests for information. That reliance must be contrary to any ordinary principle of fair play, as well as being the plainest possible breach of Rule 1.3. (3) Moreover, in view of the numerous unexplained inconsistencies to which reference has already been made in the case advanced by the Defendant, the evidence of the Claimants that 47 Hays Mews was, and was known to them as, his last-known residence is unhesitatingly to be preferred. (The evidence of Miss. Nicklin and Mr. Lukas is quite incomplete, and in any event does not bear on what was known to the Claimants, and why).”

“In all these circumstances it appears to me that although I am dealing with the case on appeal, I can and should decide the issue of the validity of service on 47 Hays Mews afresh for myself. For the reasons which I have given I find that 47 Hays Mews was neither the current address of the defendant at the date of service nor was it his last known address. I accept that he has never resided at 47 Hays Mews.”

“As we have said, there is no suggestion in this case that Whitworth Close was not Mr Hughes’s last known residence. If the MIB had disputed the claimant’s claim that this was Mr Hughes’s last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant’s actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal.”

“62. I have therefore the two alternatives: either to construe “last known place of business” as the last place known to the claimant (the claimant’s contention), or alternatively the last known ascertainable place of business or, put another way, the last place of business known generally, which is the defendant’s primary contention. The defendant’s contention is that these words envisage the situation where the person to be served no longer has a usual place of business and the proceedings must therefore be served on the last known place of business. 63. It seems to me that the proper construction is last known place of business in the sense of last place of business known to the claimant. This is, in itself, a relatively onerous provision, since in order to acquire the requisite knowledge a party must take reasonable steps to find out at the date of service what is the current place of business or the last place from which the party carried on its business. It will be a matter of evidence whether or not a party has discharged the obligation to have the requisite knowledge at the time of service. On balance, this seems to me to be a fairer and more workable test than one which refers to an objective standard of general knowledge or ascertainability. 64. I am confirmed in this view both by the fact that a similar test was operated under the previous rules involving similar wording with little difficulty, and by the fact that although they did not address the issue directly, this appears to have been implicit in the approach taken by Dyson LJ in Cranfield v Bridge and Mummery LJ in Arundel vKhakher.”

“While it is right to reject whimsical knowledge, care needs to be taken to avoid imposing conditions that may make the process of service more difficult and which would give rise to satellite litigation about compliance. The rule, as Dyson L.J. observed above, “is intended to provide a clear and straightforward mechanism for effecting service where the two conditions precedent to which we have referred are satisfied”

“65. If the earlier application was still subsisting in June 2004, it is difficult to understand why a fresh application for an extension was thought to be necessary, and particularly difficult to understand why it should have referred to CPR 7.6 (3).”

“Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time”

“17 Moreover, there are reasons internal to CPR r 7.6 itself which show that it was not intended to impose any threshold condition on the right to apply for an extension of time under CPR r 7.6(2). The contrast between rule 7.6(2) and rule 7.6(3) is striking. Rule 7.6(3) empowers the court to grant an extension of time to a claimant who applies after the end of the specified period only if the conditions stated in paragraphs (a) or (b) and (c) are satisfied. The reference to conditions in rule 7.6(3), and the absence of any such reference in rule 7.6(2) must have been deliberate. Against the background of the case law on Ord 6, r 8, and in view of the introduction of new and stringent conditions in rule 7.6(3), it cannot have been intended that rule 7.6(2) should be construed as being subject to a condition that a "good reason" must be shown for failure to serve within the specified period, or indeed subject to any implied condition. 18 In the absence of any such condition, therefore, the power must be exercised in accordance with the overriding objective: see CPR r 1.2(b). What does that mean in practice? We have no doubt that it will always be relevant for the court to determine and evaluate the reason why the claimant did not serve the claim form within the specified period. This has nothing to do with the fact that under the former procedural code, the threshold requirement was that the plaintiff should show good reason. It is because the overriding objective is that of enabling the court to deal with cases "justly", and it is not possible to deal with an application for an extension of time under CPR r 7.6(2) justly without knowing why the claimant has failed to serve the claim form within the specified period. As a matter of common sense, the court will always want to know why the claim form was not served within the specified period. As Mr Zuckerman says in Civil Procedure, p 180, para 4.121: "For it is only fair to ask whether the applicant is seeking the court's help to overcome a genuine problem that he has encountered in carrying out service or whether he is seeking relief from the consequences of his own neglect. A claimant who has experienced difficulty should normally be entitled to the court's help, but an applicant who has merely left service too late is not entitled to as much consideration. Whether the limitation period has expired is also of considerable importance. If an extension is sought beyond four months after the expiry of the limitation period, the claimant is effectively asking the court to disturb a defendant who is by now entitled to assume that his rights can no longer be disputed." 19 Whereas, under the previous law, a plaintiff who was unable to show a good reason for not serving in time failed at the threshold, under the CPR a more calibrated approach is to be adopted. If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted. Thus, where the court has been unable to serve the claim form or the claimant has taken all reasonable steps to serve the claim form, but has been unable to do so (the CPR r 7.6(3) conditions), the court will have no difficulty in deciding that there is a very good reason for the failure to serve. The weaker the reason, the more likely the court will be to refuse to grant the extension. 20 If the reason why the claimant has not served the claim form within the specified period is that he (or his legal representative) simply overlooked the matter, that will be a strong reason for the court refusing to grant an extension of time for service. One of the important aims of the Woolf reforms was to introduce more discipline into the conduct of civil litigation. One of the ways of achieving this is to insist that time limits be adhered to unless there is good reason for a departure. In the Biguzzi case [1999] 1 WLR 1926 Lord Woolf MR said, at p 1933: "If the court were to ignore delays which occur, then undoubtedly there will be a return to the previous culture of regarding time limits as being unimportant." 21 It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant's solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim. All that is required is a concise statement of the nature of the claim: see CPR r 16.2(1)(a). These are generous time-limits.”

“these appear to me to be questions of fact, albeit secondary fact” (para 75). Mr Yeo submits that evaluations of this kind are analogous to the exercise of a discretion and should be viewed as such by an appellate court. In support of this, he relies on the observations of Clarke LJ in Assicurazioni Generali Arab Insurance [2003] 1 WLR 577 para 16. “Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

“It seems to me that, unfortunately, and for whatever personal reasons there may be, the failure to carry out the simple, and I use the word ‘simple’ advisedly, process of service, was that of the Claimant’s solicitor. All that was necessary, in the absence of formal notification as to what had happened to her Application, was for her to put two letters into the post on the 22nd March, correctly addressed to the parties and not their Solicitors. Whenever those letters arrived, even if they didn’t arrive at all, she and her client would be protected by that deemed service. The difficulties of the last minute scramble that occurred were, I regret, her choice in leaving it that late. Unusually, therefore I find in the circumstances of this case, there was an unreasonable exercise of discretion.”

“It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time. Despite this, Mr Gore submits that an extension should be granted. In relation to the application of the overriding objective, he relies on the following factors. First, the claim is very substantial. Secondly, the issues in the case were identified early on, so that a short extension of time would not undermine the case management process. Thirdly, the extension of time would not put the parties on a more or less equal footing than they would have been if the extension were not granted. Fourthly, the extension would not increase the cost of the litigation. Fifthly, it would be disproportionate to refuse the extension. Finally, the defendant has not suffered any prejudice as a result of the extension, since at the date of the claimant’s application; the defendant had not yet acquired an accrued limitation defence.”

“We are in no doubt that the time for serving the claim form should not be extended in this case. The absence of any explanation for the failure to serve us is, on the facts of this case, decisive. Sadly, the errors on the part of Mr Pike were particularly egregious. The other factors identified by Mr Gore are not sufficient to outweigh the complete absence of any reason which might go some way to excusing the failure to serve in time. If we were to grant an extension of time in the present case, it seems to us that the rule stated in CPR r7.5 would cease to be the general rule. Moreover, there would be a real risk that statements made by this court about the importance of the need to observe time limits would not be taken seriously. That would be most unfortunate.”

“It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant’s solicitor, especially if the claim is substantial. But it should not be overlooked that there is a three year limitation period for personal injury claims, and a claimant has four months in which to serve his or her claim form. Moreover, the claim form does not have to contain full details of the claim.

“any party affected by the terms of this order may apply to have it set aside or varied”