Kamali v City & Country Properties Ltd

LORD JUSTICE MAY: This appeal has, in my view disproportionately, generated no fewer than 320 paragraphs of skeleton and supplementary skeleton argument. It was no doubt for this reason among others that Neuberger LJ was induced to give permission to bring this second appeal with a time estimate of one and a half days. In my view, the appeal raises only one point of substance. That is whether the second part of paragraph 47 of the judgment of Lawrence Collins J in Chellaram v Chellaram (No. 2) [2002] 3 All ER 17 is or is not correct. In my judgment it is not correct, both intrinsically and because it fails to follow and apply the decision of this court in Rolph v Zolan [1993] 1 WLR 1305 which, if not strictly binding on Lawrence Collins J and this court, is indistinguishably applicable. I would dismiss this appeal for these reasons.

In January 2004, the defendant appellant owed the claimant respondent £6,597.65 plus some interest as rent for commercial premises, 7 Odeon Parade, Allendale Road, Greenford, Middlesex. The applicant has never had a proper defence to this claim, as Deputy District Judge Shelton held on 17 March 2005. His decision in this respect has not been challenged on appeal. The respondent landlord brought county court proceedings for this debt on 14 January 2004. The claim form was duly served on the appellant at what is accepted to be his place of business at 99 Victoria Road, Ruislip Manor, Middlesex. The appellant did not defend the claim. He was abroad at the time, returning to this jurisdiction on 11 February 2004. On 9 March 2004, the respondents obtained judgment in default for £7,060.55. The appellant did not apply to set aside the default judgment until 17 August 2004. In an attempt to explain this, he initially said that he had not received the claim form. But this was shown to have been incorrect, because his solicitors had written to the respondent’s solicitors about it on 9 March 2004, by which date at the latest he had obviously received it. The deputy district judge held that the appellant did not apply to set the default judgment aside promptly within the terms of CPR rule 13.5(2). None of that is challenged in this court.

On 17 March 2005 the deputy district judge refused to exercise the court’s jurisdiction under Rule 13.3 to set aside the default judgment. He held that the appellant had no real prospect of successfully defending the claim and that there was no other good reason for setting the judgment aside. On appeal from this decision, HHJ Latham, sitting in the Uxbridge County Court on 19 September 2005, rejected the contention that the court had no discretion but to set the judgment aside under rule 13.2, because the claim form, it was said, had not been duly served, so that the conditions of rule 12.3 could not be complied with. The contention that the claim form had not been duly served depended on the fact that the appellant was out of the jurisdiction when it was delivered to his place of business. This in turn depends on the latter part of paragraph 47 of Lawrence Collins J’s judgment in Chellaram .

The first section of rule 6 of the Civil Procedure Rules contains general rules about service of documents. The second section, starting with rule 6.12, has special provisions about service of the claim form, which do not however affect the present appeal. The third section, starting with rule 6.17, has special rules about service out of the jurisdiction. By rule 6.2, a document may be served by various means including (a) personal service in accordance with rule 6.4, (b) first class post, and (c) leaving the document at a place specified in rule 6.5. By rule 6.3, subject to some exceptions, it is the court that serves a document which it has issued or prepared. This includes a claim form. Rule 6.5(6) has a table, whose provisions include that the proprietor of a business may be served by leaving the document at his place of business or last known place of business. Rule 6.5 has nothing to suggest that the person to be served has to be within the jurisdiction when service is effected under rule 6.5(6).

In Chellaram at paragraph 47, Lawrence Collins J said this:

“In my judgment there are two separate reasons why Sham has not been validly served. First, the claimants have not adduced any evidence which casts doubt on Sham’s evidence that the address in St John’s Wood is used only occasionally by him on the rare occasions when he visits London. In these circumstances there is no evidence that it ever was a ‘residence’ and it therefore cannot be his ‘last known residence’. Secondly, it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service. The Barclays Bank case is simply an illustration of this principle (as is another case, not cited in argument, Cadogan Properties Ltd v Mount Eden Land Ltd [2000] IL Pr 722, in which the Court of Appeal held that if the defendant is outside England, an order for substituted service in England could not be obtained unless permission to serve proceedings out of the jurisdiction had been obtained). CPR Part 6 contains general rules about service of documents and does not only apply to service of a claim form, (see Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2001] 4 All ER 6412, [2002] 1 WLR 997), but I do not consider that CPR 6.5 has swept away the general principle so far as it relates to service of the claim form.”

It was once the case that defendants had to be served personally within the jurisdiction. It was scarcely surprising that the defendant had to be within the jurisdiction to be properly served, since otherwise he could not be served personally. But things have long since changed. By 1981, both the Rules of the Supreme Court and the County Court Rules provided for postal service. But the High Court Rules and the County Court Rules were at that stage different.

Order 10 rule 1 of the Rules of the Supreme Court as amended in 1979 provided as follows:

“(1) A writ must be served personally on each defendant by the plaintiff or his agent.

(2) A writ for service on a defendant within the jurisdiction may instead of being served personally on him be served

by sending a copy of the writ by ordinary first class post to the defendant at his usual or last known address or

if there is a letterbox for that address by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.”

The House of Lords decision of Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506 at 510, to which Lawrence Collins J referred in Chellaram , was a decision as to the construction of this order 10 rule 1 of the Rules of the Supreme Court to the effect that the words meant that the defendant had to be within the jurisdiction, and that that expression did not, as the Court of Appeal had held, refer to the writ for service. It is true that the appellant had advanced an argument depending on a principle derived from former practice (see page 509 E - G). But Lord Brightman decided the matter as one of construction (see page 510 H - 511 B). I do not agree with Lawrence Collins J that the Barclays Bank case is an illustration of the principle which he stated, nor does Cadogan v Mount Eden (29 June 1999) assist. That was a decision under the Rules of the Supreme Court and does not, as I read it, enunciate any principle such as is now relied upon.

The County Court Rules were different. Postal service first appeared in those rules in 1959. Under the County Court Rules 1981, service by post on a defendant at his last known residence was the normal method of service; and by County Court rule 10.1, service of a summons could be effected by an officer of the court sending it by first class post to the defendant at the address stated in the request for the summons. By County Court Rule 7.1, a document could be served by delivering it to, or sending it by first class post to, his address for service.

The relevant crucial question in Rolph v Zolan was whether the limitations in order 10 rule 1 of the Rules of the Supreme Court had to be read into orders 7.1 and 10 of the County Court rules -- see the judgment of Dillon LJ at page 1312 D. Dillon LJ set out the history of the County Court rules. He concluded that he found it impossible by any process of mere construction to limit the scope of the relevant County Court Rules to service only on a defendant within the jurisdiction. Nor could this be done with reference to Section 76 of the County Court Act 1984. The defendant had emigrated to Spain, although he retained ownership of his last known English address, from which a friend collected mail and posted it to Spain. The Court of Appeal held that a County Court summons delivered to that address by post was duly served, even though the defendant was out of the jurisdiction at the time. This clear holding is not in my view diluted by what Dillon LJ said at page 1313G about the defendant in that case having actually received the summons.

The Civil Procedure Rules introduced in 1998 are a new procedural code applying to both the High Court and the County Court. Rule 10.1 of the Rules of the Supreme Court is no longer in force; and so there is no rule perpetuating the idea that a person has to be within the jurisdiction for service by post to be effected. The Civil Procedure Rules as to service more closely resemble the former County Court provisions than those of the High Court; for instance, the court now normally effects service of the claim form. Differences identified by Mr Wolman between the expression “shall be effected” in the former County Court rules and “must” in CPR 6.5 seem to me to be insubstantial and immaterial, and to take his argument nowhere.

In my judgment, there is not, or at least no longer is, a fundamental principle such as Lawrence Collins J supposed. Further, I do not think that he was substantially correct to say, as he did in paragraph 46 of Chellaram , that Rolph ’s case was not binding. In my view, if it is not strictly binding, it is plainly applicable and not in substance distinguishable. The reasoning in Rolph ’s case applies without qualification, in my view, to rule 6 of the Civil Procedure Rules, which in substance are, so far as is relevant, the same as the former County Court Rules. “Within the jurisdiction” depended after 1979 on the wording of the Rules of the Supreme Court, and the relevant part of rule 10.1 of the Rules of the Supreme Court has gone. The court’s reasoning and conclusion in Rolph are not affected by the existence of provisions enabling an application to be made for service out of the jurisdiction. I derive no assistance, for instance, from rule 6.20(1). I do not regard the present rules as ambiguous.

In the present case, HHJ Latham correctly held, on appeal from the Deputy District Judge, that the decision in Rolph applied to this case, and I would dismiss this appeal.

Mr Wolman has covered many pages and made oral submissions today with reasons why the Civil Procedure Rule 6.2 and 6.5(6) should not be construed and applied as in my view the decision in Rolph substantially requires us. They mostly depend in essence on the proposition that service on a defendant who has to be within the jurisdiction at the time is an entrenched principle which cannot be abolished by an inexplicit sidewind of secondary legislation, which should accordingly be construed as not abolishing it. In my judgment, this overstates the durability of the so-called principle. Of course it applied in the days of personal service. For personal service could not otherwise be effected. But things have moved on and we have had service by post for over 35 years, and now by other means as well.

Now that service by post is permitted, it makes little sense that its effectiveness should depend on the chance that the defendant happens not to be abroad at the time, if service is in accordance with the Rules, including rule 6.5. The Civil Procedure Rules are not removing an entrenched principle, since the so-called principle has not applied in the County Court for more than 35 years. As did Dillon LJ in that case, I find it impossible to construe the Civil Procedure Rules as the appellant would have it. Even if this were arguable, which in my view it is not, I consider that Rolph is applicable to the facts of this case and to the point that is taken. There is some general support for this conclusion in what Dyson LJ said in Cranfield v Bridgegrove [2003] 1 WLR 2441 at page 2474 H to 2475 C.

There is a further point in the grounds of appeal to the effect that this interpretation of rules 6.2(b) and 6.5(6) amounts to indirect discrimination against United Kingdom Asians under the Race Relations Act 1976 or offends Article 6.14 or Article 1 of the First Protocol of the European Convention on Human Rights. It is said that United Kingdom Asians are disproportionately more likely to spend significant time abroad than others. I understand the proposition to be that service by post should therefore not be permitted while they are abroad. I see no force in this whatever. Travel abroad nowadays is near universal for those who can afford it, irrespective of their racial or ethnic origin, and there are no racial or ethnic overtones to those who can afford it. What is more, the problem applies equally to those who are within the jurisdiction, but away from their place of residence or business. It is no disproportionate infringement of the property or other rights of those who owe rent, for instance, to say that, if they are to go abroad, they should pay their rent before they go, or make arrangements for the consequent county court claim to be sent to them promptly or otherwise dealt with. Rule 13.3 is quite sufficient to enable the court to set aside judgments which those who travel have let slip, if they have a real defence to the claim, as this appellant does not -- see Akram v Adam [2004] EWCA Civ 1601, [2005] 1 All ER 741 at paragraph 41. The reference to Section 1(1)(b) of the Race Relations Act is inapt, since that applies to discrimination by a person, not by legislation.

Mr Wolman has a fallback position. He says that there is some other good reason within CPR Rule 13.3C (b) to set aside the judgment; that is, that the appellant was out of the jurisdiction at the time. I think not. I see no reason why this should be a good reason when the appellant has no real prospect of successfully defending the claim and he did not apply promptly to have the default judgment set aside.

For these reasons, I would dismiss this appeal.

LORD JUSTICE NEUBERGER: I agree with the conclusion reached by May LJ on the issue raised on this appeal, and with much of his reasoning. However, I have had significantly greater difficulty in resolving the issue, and have derived much greater assistance from the written and oral submissions we have received from counsel. It seems to me that the principle relied on by Lawrence Collins J in Chellaram v. Chellaram (No. 2) [2002] 3 All ER 17 and by Evans-Lombe J in Fairmays v. Palmer [2006] EWHC 96 deserves respect and serious consideration, not least because Lawrence Collins J is the senior editor of Dicey and Morris on Conflict of Laws.

The reasons why I have come to the conclusion that this appeal must be dismissed are as follows. First, the words of the relevant provisions of the CPR, in particular rules 6.2 to 6.5 inclusive, do not appear to me to exclude service in accordance with their terms simply because the defendant is out of the jurisdiction. Contrary to the contention put forward by Mr Wolman, I do not consider that rule 6.5 (1) calls that proposition into question. It merely excludes service out of the jurisdiction, save in accordance with the provisions of Section III of the CPR 6. In this case, if service was validly effected, it was done so within the jurisdiction and appears to have been in accordance with the requirements of rule 6.5. In those circumstances, it seems to me wrong in principle to imply an exception into rules 6.2 to 6.5, unless it is either obvious that such an exception should be implied, or the provisions as to service in CPR 6 simply do not work in some respect unless such an exception is implied. I do not consider that either possibility applies.

Secondly, there is the reasoning and decision of this court on a very similar point under the former County Court Rules (“CCR”)in Rolph v. Zolan [1993] 1 WLR 1305, to which May LJ has referred. Consistently with the approach in that case, it seems to me to be inappropriate to imply the common law principle identified in the Chellaram case into rules 6.2 to 6.5. The decision in the Rolph case is also important here because it answers Mr Wolman’s point that one should not lightly assume that a common law principle has been reversed, as it were sub silentio, by a change in rules of procedure. If the CCR already had the effect determined in the Rolph case, the common law principle had already been reversed, albeit only in the County Court. In effect, the effect of our conclusion is that, in the present connection, we are holding that the CPR followed the CCR, as interpreted in the Rolph case, rather than the Rules of the Supreme Court (“RSC”).

Thirdly, rule 6.15(1), which does not fall within Section III of CPR 6 and which provides that where a contractual claim is brought the claim form may be served by a contractually agreed method, suggests that the provisions outside Section III of the CPR 6 were intended to be capable of applying even where the defendant was out of the jurisdiction, a proposition supported by the way in which rule 6.15 (2) is expressed.

Fourthly, nothing in Section III of the CPR 6 (“Special Provisions about Service out of the Jurisdiction”) appears to me to preclude service on a defendant out of the jurisdiction being effected in accordance with rules 6.2 to 6.5 within the jurisdiction, where it is appropriate. The terms of rule 6.5 appear to be mandatory whereas the provisions of rule 6.20 appear to be expressed permissively. Reliance is also placed by Mr Wolman on the fact that rule 6.20 (1) refers to a claim made against a person “domiciled in the jurisdiction” (which has the meaning of resident in, and having a close connection with, the jurisdiction) as one of the twenty or so types of claim where service out may be effected in accordance with Section III of CPR 6. Although the judge’s interpretation of rules 6.2 to 6.5 cuts down the circumstances in which rule 6.20 (1) can or needs to be invoked, it does not render it nugatory. Accordingly I do not consider that the terms of Section III of CPR 6 cast doubt on the judge’s conclusion.

Fifthly, there is nothing in the Lugano or Geneva Conventions, or indeed in Council Regulation (EC) number 44 of 2001 (“the Judgments Regulation”), concerned with service outside the jurisdiction, which calls this conclusion into question. If service effected in a case such as this result in a default judgment which is unenforceable out of the jurisdiction (for instance in a country where the defendant has assets), that does not cause me to conclude that the CPR should be given a different meaning. It merely means that the value of any judgment, where the defendant is resident abroad and service is effected in accordance with rules 6.2 to 6.5, will be very limited in cases where the defendant has no assets in this country. In this connection see Colt Industries Inc v. Sarlie (No 2) [1966] 1 WLR 1287 at 1293H – 1294A.

Sixthly, there is the question of the overriding objective. In that connection, it is, not unreasonably, said by Mr Wolman that unfairness could result from this decision. Take the case of a foreign resident who came here temporarily to work and, after six months, returned home, and who, while in this country, unknown to him, became allegedly liable during that time for a sum of money. On the view we have formed, if proceedings were subsequently brought against him in this country, he would liable to be served at his “last known residence”, namely the place he had lived in for six months in this country (but with which he now has nothing to do), and, without being aware of it, to have a judgment entered against him.

There is obvious force in that point. However, there are mitigating and compensating factors. As to mitigation, it is clear that, before a claim form can be served on a defendant’s last known residence in this country, the claimant has to have made reasonable investigations to find out where the defendant actually resides or carries on business: see paragraphs 101 to 103 in Cranfield v. Bridgegrove, to which May LJ has referred, and paragraphs 64 to 71 of the judgment in Collier v. Williams [2006] EWCA Civ 20. If, as a result of those investigations, the claimant discovers where the defendant is living abroad, then of course the claimant cannot rely on CPR 6.5 and must serve in accordance with Section III of CPR 6.

If the claimant has made reasonable investigations and cannot locate the defendant abroad, then he can issue proceedings and proceed to judgment, serving the claim form on the defendant’s previous residence in this country with the defendant not knowing. But, if that leads to judgment being entered against him, the defendant can, provided he acts promptly on learning what has happened, apply to set aside the judgment. If he has an arguable defence or there is some other unfair prejudice, then judgment can normally be expected to be set aside.

There are also compensating or competing factors. If the defendant is, as many individuals are, a frequent traveller, there could often be difficulties and uncertainties if the validity of the service of a document at his home or business in this country depends on whether, at the moment of service, he was in this country or abroad. In some cases, it could be hard to determine whether a defendant was in this country at the moment of service. It could also be said to be unfair on a claimant that the validity of the service of the claim form (particularly as the timing of service is normally not within his control, as it is effected by the court) should depend on the location of the defendant. Indeed, that appears to have been what led Lord Brightman in Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, at 510G, to describe as an “absurdity” the notion that the validity of service on an inhabitant of northern Cumbria, who went to Scotland for lunch, could depend on the time he left for, or returned from, lunch.

Further, if a claimant with a good claim has taken reasonable steps to locate the defendant in the example I have postulated, as he would have to do, then it would be unfair on him if, because the defendant had effectively disappeared, he could not bring proceedings with a view to enforcing his claim. A balance has to be struck between the rights of a claimant and those of a defendant; and it seems to me that the balance achieved by the rule, as interpreted by the judge below, is fair and reasonable.

Of course in this case, no such difficulty arises. The defendant owns a property in this country, has owned it for some time, and indeed has been closely connected with, and has frequently been in, this country since 1974. Accordingly, he has been validly served at a current “place of business”. Furthermore, the claim made against him arises out of the lease of property which he owns in this country. Unlike in the relatively extreme case I have postulated, he would have been well advised, if he was spending time abroad, to ensure either that he agreed a method of service with the claimant, or that somebody attended the property to pick up his mail from time to time and keep him informed of what was going on. Quite apart from this, it seems to me that he has no defence to the claim in any event.

The principle which weighed with Lawrence Collins J in the Chellaram case must be considered. First, it does not seem to me particularly surprising that the CPR should have the effect which Judge Latham concluded that they had in this case. The service provisions of the CPR were intended to constitute a simple set of rules of general application, as explained in the Cranfield and Collier cases. As already mentioned, to imply an exception into the plain words of rules 6.2 to 6.5 strikes me as inappropriate, save if such an implication was plainly intended. Further, the fact that the CCR had the effect which they did according to the reasoning of this court in the Rolph case of itself undermines the force of the concern expressed by Lawrence Collins J.

In other words, the common law rule identified in paragraph 47 of the judgment in the Chellaram case has, in my opinion, been displaced by the provisions of rules 6.1 to 6.6. (In addition, at least in this case, Article 22.1 of the Judgments Regulation gives the English courts exclusive jurisdiction in a case such as the present, involving as it does a claim for rent under a lease of property in this jurisdiction – see Roslin v Rottwinkel [1986] QB 33, a decision on a similar provision in the Brussels Convention).

Furthermore, I do not think that the decisions invoked by Lawrence Collins J in the Chellaram case call this conclusion into question. The decision of the House of Lords in the Hahn case, referred to above, was simply concerned with the construction of Order 10 rule 1 (2) of the former Rules of the Supreme Court (“RSC”). Indeed, it can fairly be said that there is a marked contrast between Section I of CPR 6, which includes rule 6, and is headed “General Rules about Service”, and contains no express requirement as to the location of the person to be served, and RSC Order 10 rule1(2), which is restricted to service “on a defendant within the jurisdiction”. Cadogan Propoerties Ltd v. Mount Eden Land Ltd [2000] 1 L Pr 722 was also a decision of this court based on the RSC, not the CPR, and was not directed to the point at issue in this appeal in any event.

. For these reasons, I would dismiss this appeal and, in relation to the facts of this case, I do so without reluctance.

LORD JUSTICE WILSON: Notwithstanding the ingenuity and erudition of Mr Wolman's arguments, to which I pay tribute, I concur without hesitation in the dismissal of this appeal for the reasons given by May LJ; for the additional reasons given by Neuberger LJ; and particularly because of my disinclination to accept, without express mandate in the new procedural code, that enquiry into the validity of service of the claim form should depend upon where the defendant turns out to have happened to be present on the day of deemed service and, indeed, my concern that the enquiry would thus often degenerate into a difficult assessment of the truth of his assertion in such regard.

Order: Appeal dismissed.