Murrills v Berlanda & Anor

This is an appeal against the order made by His Honour Judge Denyer QC dated 11 February 2013, amended by an order dated 11 June 2013, striking out the claim as against Dr Maurizio Berlanda, the First Defendant to the claim, on the ground that the claim form had not been validly served on him, but granting the Claimant (the Appellant before us) permission to appeal. The Second Defendant, the Belvedere Medical Group Ltd, is in liquidation and played no part in the appeal or in the proceedings below.

Having heard the submissions on behalf of the Appellant, we announced our decision to dismiss the appeal, and said that we would give our reasons subsequently in writing. These are my reasons for dismissing the appeal.

There was also a Respondent’s notice. In consequence of our decision on the Appellant’s appeal, it was unnecessary for us to consider it.

The relevant facts are largely undisputed, and may be shortly stated. The Respondent is a cosmetic surgeon. On 27 February 2009 the Appellant attended the clinic of the Second Defendant as a private patient and was operated on by the Respondent, who was working there. The Appellant claimed damages against the First and Second Defendants on the grounds that her treatment by the Respondent was negligent, and the Second Defendant was vicariously liable for his negligence. The Respondent is an Italian national, and has lived at an address in Trento, the capital of the Italian Tyrol for some 30 years. He has, and had for some time before the Claimant’s treatment, consulting rooms in Trento from which he practised. He worked for the Second Defendant at its clinic in London for 3 or 4 days every 15 days, and stayed in an hotel when he did so.

The Claimant consulted solicitors in November 2009. They sent to the Respondent at the Second Defendant’s address a letter that is not in evidence. He replied on 18 March 2010, stating that he was no longer associated with or working for the Second Defendant, and offering to see her at the address of Re-Shape Ltd in West Malling in Kent. He said that his first consultation there would be on 29 and 30 March 2010.

The Appellant did not respond to that suggestion. Her solicitors wrote to the Respondent on 7 May 2010. He replied on 31 May 2010 from Trento, stating that he had notified his insurers of the claim and giving their details, and stating that the solicitors could contact them directly.

18 months passed without, so far as the evidence shows, any further communication by the Appellant’s solicitors to the Respondent. This was an extraordinary delay in the context of a personal injury claim, with a limitation period of 3 years expiring in February 2012. On 19 September 2011, the solicitors sent a letter of claim to the Respondent at the address of Re-Shape Ltd and to his insurers. They received no response, despite chasing letters sent on 14 October 2011. Nonetheless, the Appellant’s solicitors did not then promptly issue proceedings.

On 4 January 2012 the Appellant’s solicitors wrote to the General Medical Council expressing concerns as to her treatment by the Respondent. They sent a follow-up letter on 2 February 2012. On 17 February 2012 the GMC replied, stating that the Respondent had been administratively removed from the Medical Register. It is common ground that it followed that he could not lawfully be working as a medical practitioner in this country, and there was no reason for the Appellant’s solicitors to believe, and no suggestion, that he was working here unlawfully.

The Appellant’s claim form was issued on 21 February 2012, a week before the expiration of the limitation period. It gave as the Respondent’s address the address of Re-Shape in Kent. Since it was apparently intended for service within the jurisdiction, its period of validity was 4 months. There were no Particulars of Claim.

At some date, presumably after 21 February, the Appellant’s solicitors made an internet search against the Respondent’s name. From it they obtained the address of the clinic at which he worked in Trento and an email address. On 30 May 2012, almost three months after the expiry of the limitation period, they wrote to the Respondent by airmail and by email at those addresses. They referred to the letter of claim they had sent on 19 September 2011 at the address of Re-Shape, and stated:

“We understand that you are no longer consulting at that address and if you wish us to use an alternative correspondence address for service of proceedings, please notify us accordingly, otherwise we will continue to use the Reshape address.”

The letter outlined the procedural position, stating that the proceedings were due to be served by posting them on 19 June 2012. This was of course true if the claim form was to be served within the jurisdiction; if it was to be served in Italy, the form would be valid for an additional 2 months. The letter suggested that the parties should agree for the claim form to be served on each Defendant with a 6-month extension of time for service of other documents, including Particulars of Claim, expert evidence and schedule of loss. Parenthetically, I express some surprise that, despite the expiration of the limitation period and the requirements of the clinical negligence protocol, the solicitors were apparently not in a position to serve the Particulars of Claim or to comply with paragraphs 4.2 and 4.3 of Practice Direction PD 16.4, and that they sought such a long extension of time, but nothing turns on this. The letter asked the Respondent to confirm his address for service in England, and stated that if the Appellant’s solicitors did not hear from the Respondent by 12 June, “we will make application to Court in any event and will serve proceedings at the address previously given by you”, by which they meant the address of Re-Shape in Kent.

On 6 June 2012, the Respondent’s insurers responded to the Appellant’s solicitors by email, disputing liability. On the same date, the Appellant’s insurers made an application to the Court for leave to serve the claim form without the Particulars of Claim, schedule of loss and medical evidence, and for an extension of time until 21 December 2012 to serve the Particulars of Claim, schedule of loss and medical evidence. The application stated that the Defendants had not consented to the making of an order, but had not objected to it. On 15 June 2012 His Honour Judge Rutherford made an order in the terms sought. Importantly, the order made no provision as to the place or mode of service. On 19 June the Appellant’s solicitors sent copies of the order, the claim form and the response pack by post to the Respondent at the address of Re-Shape, and by email to him and to his insurers. I assume that these emails, and those sent earlier to the Respondent at his Italian email address, were in fact received by him.

On or about 25 June 2012 Re-Shape returned to the Appellant’s solicitors the letter of 19 June with the note in manuscript: “Dr Berlanda does not work for Re-Shape. He lives and works in Italy. We have no forwarding address for him.”

On 8 August 2012, just over five months after the expiry of the limitation period, the Appellant’s solicitors sent to the Respondent by email a letter of claim stating that it was sent “pursuant to Pre-Action Protocol for the Resolution of Clinical Disputes”. It stated that the Appellant was seeking compensation for pain, suffering and loss of amenity, and compensation for her financial losses, but these were not quantified in any way. It added:

“Please confirm your address for service. You previously gave us the address of Re-Shape … but we have received a note from them advising you are no longer at that address, and they have no forwarding address for you. If we do not receive an alternative address for service by 22 October 2012, we will apply to the Court for permission to serve you at your email address … under Rules 6.15 and 6.27 of the Civil Procedure Rules 1998 (as amended).”

Not having received any response to the letter of 8 August 2012, on 31 October 2012 the Appellant’s solicitors applied for an order for permission to serve by email the Particulars of Claim “and any other document in these proceedings” on the Respondent “who currently resides out of the jurisdiction” out of the jurisdiction. Their application stated that he resided in Italy and no longer practised in the UK. His Honour Judge Denyer made the order as sought on 15 November 2012. I think that the order should have placed a time limit on service, but it did not. Furthermore, neither the Appellant’s solicitors’ application nor the order made addressed the problem arising from the fact that the claim form if originally issued for service in Italy would have expired on 21 August 2012.

On 21 December 2012 the Appellant’s solicitors sent to the Respondent by email, in accordance with the order of 15 November 2012, the Particulars of Claim, medical evidence and what purported to be a schedule of loss. On 4 January 2013 the Respondent acknowledged service, indicating that jurisdiction was contested. On 14 January 2013 his solicitors issued his application to strike out the claim and for various other orders. The application was heard by His Honour Judge Denyer QC on 29 January 2013 and on 11 February 2013 he made the order striking out the claim that is the subject of this appeal.

The Judge held that the Respondent had not been validly served. He was served as an individual, and the address of Re-Shape had never been his residential address; the Appellant’s solicitors knew his address in Italy, and should have utilised CPR 6.41 (Service in accordance with the Service Regulation). He said:

“This is not a case where D1 was seeking to avoid service. He had provided requisite information to C. It follows that it would be a wrongful exercise of discretion (assuming I have such a discretion) where the correct procedure was not followed, where following the correct procedure was not unduly burdensome or difficult and where the defendant was not deliberately making life difficult were I not to accede to the Defendant’s application and strike out these proceedings.”

Although there are a number of grounds of appeal in the notice of appeal, essentially there is only one, namely that the Judge should have held that the claim form had been validly served on the Respondent at the address of Re-Shape. It was not (and could not be) suggested that the claim form was served in Italy in accordance with Part IV of CPR Part 6 or as required by the Service Regulation (Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters).

This is a case in which, if the claim form was to be served within the jurisdiction, CPR 6.9 applied, since the Respondent had not given an address for service. The first question to be addressed under paragraph 6.9 is whether, for the purposes of CPR 6.9, he was an individual, to be served at his usual or last known residence, or “an Individual being sued in the name of a business”, in which case he could be served at his usual or last known residence or at his principal or last known place of business. Mr Chawatama submitted that the Respondent was an individual being sued in the name of a business, since he was carrying on business when he treated the Appellant.

I cannot accept this submission. The Respondent was sued as an individual in his personal name. I accept that a person practising medicine may be carrying on a business within the meaning of CPR 6.9, but not if he is an employee working in someone else’s business, which is what is alleged in the Particulars of Claim. Whether the Respondent worked as an employee or was self-employed, he was not sued in the name of a business. An individual is sued in the name of a business when he is sued in the name of a business which is not his personal name. This is the natural reading of CPR 6.9. If the second paragraph of the table under that rule had been intended to apply a person carrying on business in his own name, as well as a person carrying on business in another name, it would have so stated. Any doubt is resolved by reference to CPR PD 7A.5C:

“Persons carrying on business in another name

5C.1  This paragraph applies where –

(1)

a claim is brought against an individual;

(2)

that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and

(3)

that business is carried on in a name other than that individual’s own name (‘the business name’).

5C.2 The claim may be brought against the business name as if it were the name of a partnership.”

The Appellant’s solicitors had no residential address for the Respondent within the jurisdiction. In fact, it was obvious that he had no such address, and that his residential address was in Italy. This was obvious from the facts that he was not working in this country and had a place of business in Trento, that he had written from Italy and had Italian insurers. Accordingly, the Appellant’s solicitors should have proceeded under CPR 6.41, as the Judge held, immediately after the claim form was issued.

The Judge stated that the address to which the Appellant’s solicitors sent their letter of 30 May 2012 was both his professional and residential address. This was wrong: according to his solicitor’s undisputed evidence, the Respondent resided at an address in Trento, which was identified in his solicitor’s witness statement, different from his professional address, and had lived at that address for about 30 years. His telephone number at his practice was available on the internet and in the local telephone directory. It would not have been difficult to ascertain his residential address, either by enquiry at the professional address or, presumably, in the telephone directory, but in fact no attempt was made to discover it.

Even if Mr Chawatama’s submission that the Respondent was sued in the name of a business is correct, it carries the Appellant no further forward. When the proceedings were issued and purportedly served, the Appellant’s solicitors knew that he no longer carried on business at the address of Re-Shape, since he was no longer registered with the GMC. CPR 6.9(3) applied. They successfully ascertained his current place of business, in Trento. Once again, the Appellant’s solicitors had to apply the rules for service out of the jurisdiction in Italy, under CPR 6.41. They did not do so.

Mr Chawatama suggested that the order of His Honour Judge Rutherford of 14 June 2012 impliedly authorised service on the Respondent at the address of Re-Shape. Such an order must be express: it was neither sought nor made.

It follows that the Judge was right to find that there had been no valid service of the claim form on the Respondent.

Mr Chawatama did not suggest that the Judge had wrongly exercised any discretion. It is in any event difficult to see that he erred in his exercise of any discretion. A claimant who commences proceedings close to the expiration of a limitation period must pursue his claim expeditiously. The Appellant’s solicitors delayed in commencing proceedings and in pursuing them, and failed to take the steps obviously required to serve the Respondent in Italy within the period for service of a claim form out of the jurisdiction, and there was no justification for an extension of time.

Quite apart from the detailed and perhaps over-complex provisions of the CPR, it would not seem just to conclude that the Respondent was validly served within the jurisdiction. He is an Italian national. When the proceedings were issued, the Appellant’s solicitors must have realised that he was not practising in this country, since he was no longer registered with the GMC. They had no residential address for him here and no reason to believe that he had a residential address in this country. They knew he worked in Trento, and if he did not reside there he clearly did reside in Italy. Italy was the natural and appropriate jurisdiction for him to be served, and it is not possible to see any justification for serving him in England. This is not a case, such as City & Country Properties Ltd v Kamali [2006] EWCA Civ 1879 [2007] 1 WLR 1219, in which the defendant undoubtedly had a place of business in the jurisdiction. At the time the proceedings were served he was temporarily out of the jurisdiction. The question was whether the mere fact that he was outside the jurisdiction at that time rendered service ineffective. It did not.

I agree.

I also agree.