Mersey Docks Property Holdings & Ors v Kilgour

At a case management conference on 23rd April 2004 I ordered a hearing of the following preliminary issue, the terms of which have since been agreed between the parties:

The claimants say that Mr. Kilgour, who carries on business as an architect, was validly served. Mr. Kilgour contends that he was not validly served.

The answer to the issue depends on the construction of CPR Part 6.5 (address for service of documents), CPR Part 7.5 (service of a claim form), and 7.6 (extension of time for service of a claim form).

The issue includes two principal questions. The first question - "What is the meaning of the words 'last known place of business' in Part 6.5(6) - has not previously been considered under the CPR. The second question: "What are the principles on which time should be extended under CPR 7.6(2) and CPR 7.6(3)?" has been the subject of recent Court of Appeal authority.

After the oral hearing the parties made further submissions both in writing and orally on the judgment of Court of Appeal in Hashtroodi v. Hancock [2004] EWCA (Civ) 652, which has particular relevance to the interpretation of Part 7.6(2).

The multi-party action arises out of a fire on 4th August 1997 at a fruit storage and distribution centre at Spade Lane, Sittingbourne, Kent, in the course of which the building and much of its contents were destroyed. The damage claims amount to over £16.5 million.

The warehouse was built in 1994-5 by Birse Construction Ltd., the first defendants, under a design and build contract with Sheerness Produce Terminal Ltd. ("Sheerness"). Mr. Kilgour was the architect employed by Sheerness. Until 6th April 1998 he carried on business under the title of Michael Kilgour Associates. Since that date, the practice has been known as MKA Chartered Architects.

The claim form was issued on 1st August 2003, a few days inside the six year limitation period, on behalf of five claimants. There were then nine named defendants, among them Mr. Kilgour.

Mr. Kilgour's address is listed in the claim form as Studio 531, Bullen Lane, East Peckham, Tonbridge, Kent, TN12 5LP. This was Mr. Kilgour's address until 6th April 1998. On about that date Mr. Kilgour not only changed his business name but moved his place of business to Rosewood House, High Street, Hadlow, Tonbridge, Kent, TN11 OEF.

Under CPR Part 7.5 the claim form had to be served on Mr. Kilgour by 1st December 2003, i.e. within the four month period after the date of issue.

On 26th November 2003, Fox Williams, the solicitors acting for the claimants, sent a brief letter to Mr. Kilgour enclosing the claim form and draft particulars of claim, couched in very general terms. The letter was sent by first class post to the former business address listed in the claim form, and was addressed to Michael Kilgour. If it was validly served, service was deemed to have taken place on 28th November 2003 within the period allowed under the rules. In this event, it was good service: see Godwin v. Swindon B.C. [2002] 1 WLR 997.

Fox Williams followed this letter with a longer letter to Mr. Kilgour dated 28th November 2003. This letter was addressed to Michael Kilgour & Associates. It was again sent to the former business address. The letter acknowledged that some of those named as defendants might be no more than peripherally involved. Those served, i.e. the original nine defendants, were each asked to agree to a stay of proceedings until 27th February 2004 by which time the claimants would write to each defendant either enclosing an amended particulars of claim or, alternatively, notifying the defendant that the proceedings would not be pursued. The letter envisaged that each defendant would have at least three months thereafter to investigate the claim and prepare its defence in the event that the defendants decided that they wished to proceed.

Mr. Kilgour lives at Little Mill, East Peckham, Tonbridge.

Mr. Kilgour wrote to Fox Williams on 19th December 2003.

Fox Williams replied on 23rd December 2003, enclosing a copy of the letter of 26th November 2003, the claim form, and the particulars of claim. The letter asserted that the claim form had been sent to Mr. Kilgour's last known place of business of which the claimants were aware, and that he had therefore been duly served within the limitation period.

Fishburns replied on the same day, 23rd December 2003, saying that they had been instructed on behalf of MKA Chartered Architects, formerly Michael Kilgour & Associates. They maintained on Mr. Kilgour's behalf that he had not been validly served because the claimants did not take "all reasonable steps" to serve him at the correct address.

Fox Williams replied to Fishburns on 31st December 2003 about other matters. In the letter they said that they would deal with the procedural points which Fishburns had raised once they had instructions from their own clients.

Fishburns wrote on 16th January 2004 asking for a reply to the procedural points which they had raised in their letter of 23rd December 2003.

Fox Williams replied on 21st January 2004 suggesting that the procedural questions raised in Fishburns' 23rd December 2003 letter be considered only after a decision had been made that the claimants wished to proceed with their claims against Mr. Kilgour. They pointed out that:

Fishburns responded also on 21st January 2004, saying that they wished to have Fox Williams' explanation on the issue of service prior to the case management conference which I had fixed for 30th January 2004.

It seemed to me that, in a case as stale as this, active case management required that the question of the future conduct of the litigation (including the question of a stay) should be considered by the court with the parties at an early first case management conference. Fishburns' letter of 21st January 2004 could not be construed as agreeing to the approach suggested by Fox Williams in their letter of 21st January 2004.

At the case management conference on 30th January 2004, the claimants were ordered to serve an amended particulars of claim in draft by 4.00 p.m. on 12th March 2004, and to notify any party which was no longer to be a party to the litigation by that date.

On 26th February 2004, Fishburns wrote to Fox Williams noting that they had not received a response to their contention that service on Mr. Kilgour was defective. This letter again explained why Fishburns were contending that the service was defective.

Fishburns wrote again to Fox Williams on 15th March 2004. This time they enclosed a copy of their letter dated 23rd December 2003 and warned Fox Williams that if they did not receive a substantive reply, they would have no alternative but to make an application to the court.

On 22nd March 2004, Fox Williams made a brief response saying that they had taken all reasonable steps to ascertain the address of Mr. Kilgour. They had conducted a search on directory enquiries on 30th July 2003 which showed Mr. Kilgour as listed at the former business address at Studio 531.

Fishburns replied on 6th April 2004 in a very full letter setting out its case and inviting the claimants to delete all reference to Mr. Kilgour in the claim form and the particulars of claim. They suggested that the claimants should agree to desist in attempting to pursue any claim against Mr. Kilgour, and agree to pay his costs to date.

On 21st April 2004, Fox Williams maintained the position that they had set out in their letters dated 21st January 2004 and 22nd March 2004, and said that it was for Mr. Kilgour to make whatever application was necessary to remove his name as a defendant to the proceedings.

At the further case management conference on 23rd April 2004, I ordered that the issue of service on Mr. Kilgour should be treated as a preliminary issue.

By the time of the hearing of this application, the claimants had not made an application under Part 7.6(2) to extend the time for service in the event that they were unsuccessful in their claim that Mr. Kilgour had been validly served under Part 6.5(2). The hearing on the question of whether the court would extend time for service proceeded on the basis of an undertaking by the claimants that the necessary application would be filed.

Originally there were five parties as claimants. There are now three claimant parties.

Mersey Docks Property Holdings Ltd. ("Holdings"), the first claimants, are the assignees of Sheerness, the warehouse owners', assets and liabilities pursuant to an assignment dated 23rd November 2001. I am told that Holdings makes claims against Mr. Kilgour in contract (under seal) and in tort.

Spade Lane Cool Stores Ltd. (in liquidation), formerly Wakeley Brothers Distribution Ltd., ("Spade Lane") is the second claimant. It was the tenant at the time of the fire. On

Sheerness Cool Stores Ltd. ("Cool Stores") is the third claimant. It is the assignee of the second claimant's assets and liabilities pursuant to an assignment dated 3rd December 2001. It claims against Mr. Kilgour in tort.

There were two other claimants at the time of service of the claim form, which have since dropped out of the action: Sheerness as warehouse owner, which assigned its claim to the first claimant; and the Mersey Docks & Harbour Company ("MDH"), the parent company of the second claimant since

Each of the claimants contends that Mr. Kilgour was served at his last known place of business. The claimants, not knowing what was his last known place of business, say that they took steps through their solicitors to find out. Ms. Sarah Pooley, an assistant solicitor at Fox Williams who has the conduct of the litigation under the supervision of Mr. Custance, a partner, said in her witness statement that Mr. Kilgour's particulars were obtained initially from the project documents taken from the time in 1994-5 when the warehouse was being built. This gave the names of Michael Kilgour and Michael Kilgour & Associates.

Ms. Pooley said in her witness statement that on 30th July 2003 she undertook a directory enquiries search via the Internet in the names of Michael Kilgour and Michael Kilgour Associates. This revealed the Studio 531 address used by Mr. Kilgour before 5th April 1998.

Ms. Pooley claims that after this research the claimants were able to say that the Studio 531 address was the address of Mr. Kilgour's last known place of business. Ms. Pooley said that searches were also conducted under the RIBA's directory of practices under the name of Michael Kilgour, but they did not reveal any address. This is, of course, not surprising since Mr. Kilgour is practising under the name of MKA Associates. Ms. Pooley did not take this line of enquiry any further.

I should add for the sake of completeness that there is no suggestion that Mr. Kilgour in any way attempted to conceal his firm's change of name and business address. I accept, as he says in para.10 of his first witness statement, that in March/April 1998 he amended his entry in the Yellow Pages and he informed the RIBA of the changes to his practice name and business address as he was required to do by law. He says that his listing in the Kent Region section of the RIBA directory could have been found easily by anyone who searched for his name in the appropriate section.

The issues which I have to decide are complicated by factual evidence concerning the knowledge of the claimants in the action as a result of the assignments. It is accepted that, as a matter of law, a claimant whose title to sue derives from an assignment of its cause of action can be in no better position than the assignor. This evidence may be relevant when considering the knowledge of the last known place of business to be imputed to the claimants.

Holdings, the first claimant, derives its title to sue from Sheerness, the original warehouse owner. After his change of address and business name, Mr. Kilgour sent a covering letter enclosing an invoice to Sheerness, dated 2nd April 1998 and 31st March 1998 respectively, relating to a planning application for perimeter fencing and security cameras.

It is accepted by the claimants that Sheerness had notice of Kilgour's name and address by the time of the assignment to Holdings, but Holdings claim that it cannot realistically be said to "know" Kilgour's new address at the time of the assignment or to know the information at the time of the attempted service of the claim form at the end of November 2003.

Spade Lane (the second claimant) and/or Cool Stores (the third claimant) are assignor and assignee of the tenant's cause of action. There is no dispute that Spade Lane granted Mr. Kilgour a retainer in connection with an application for planning permission for buildings in 1998. Mr. Kilgour has produced five documents, which bear his new address and firm name, and which passed between him and Spade Lane in 1998. The dates run from an invoice dated 31st March 1998, which was paid by Spade Lane on 5th June 1998, accompanied by a remittance advice correctly addressed and dated 1st June 1998, and an invoice dated 30th October 1998 which was paid on 11th December 1998. In addition, Spade Lane wrote to MKA Chartered Architects at Mr. Kilgour's new address on 3rd June 1998 to notify them that Spade Lane was installing a new computer system.

There are further documents sent by or to Wakeley Brothers (Rainham Kent) Ltd. in 1999, and later documents sent by or to MDH. The claimants say that these documents are irrelevant since these companies were separate legal entities to Spade Lane, and there is therefore no justification in law or fact for imputing the knowledge of either to Spade Lane.

The claimants accept that Spade Lane had had notice of Mr. Kilgour's new name and address by the time of the assignment to Cool Stores on 23rd November 2001. It claims that it cannot realistically be argued that Spade Lane knew of Mr. Kilgour's new name and address at the time of the assignment since Mr. Kilgour had had no dealings with Spade Lane between the end of 1998 and the date of the assignment. Neither can it realistically be argued, so the claimants say, that the Spade Lane or Cool Stores knew Mr. Kilgour's new address at the time of service of the claim form at the end of November 2003.

There are three questions which require consideration as matters of law:

Part 6.5(6) provides that:

It is conceded that service was not effected at Mr. Kilgour's place of business. Each of the claimants contend that it was served at his last known place of business.

Part 1 of the 2004 edition of the White Book says in the notes at para.6.5.3 that:

This novel point of construction under Part 6.5(6) is raised in similar form in relation to individuals - "usual or last known residence"; proprietors of a business - "usual or last known residence or place of business or last known place of business"; and individuals who are suing or being sued in the name of a firm - "usual or last known residence or principal or last known place of business of the firm". The same problem does not arise in relation to corporations or companies which do not have last known residence or place of business as a place at which good service may be effected.

The Court of Appeal has made it clear that I should not approach the construction of Part 6.5(6) by considering the case law under the previous procedural rules and applying the principles derived from them.

The proper approach to construction of the CPR Rules has been considered most recently by the Court of Appeal in Hashtroodi v. Hancock [2004] EWCA (Civ) 652 where Dyson LJ gave the judgment of the court.

The judgment in Hashtroodi, in line with a number of other Court of Appeal judgments, and the wording of CPR 1.1(1) and CPR 1.2(b) makes it clear that the CPR is a new procedural code with the overriding objective of enabling the court to deal with cases justly and that, although decisions under the pre-CPR rules may have some persuasive value, it should normally be possible to interpret the CPR without recourse to case law under the former rules - see the judgment of Dyson LJ para.12-16.

The starting point must be that Part 6 is a comprehensive set of rules regulating the place of service of documents in litigation. Within it are included as alternatives methods of service permitted under the Companies Act 1985.

There is no direct assistance in the interpretation of what is meant by "last known place of business" to be derived from Part 6. Some limited assistance may be derived from two cases under the previous rules, although the wording is different.

The previous O.10, r.1 provides that service may be effected personally or, under O.10, r.1(2)(a):

In National Westminster Bank v. Betchworth Investments (1975) 234 EG 6, the Court of Appeal construed the words "last known address" in a lease as the last address known to the landlord. They held that the expression must be construed literally and it was possible to have more than one "last known address".

In Austin Rover v. Crouch [1986] 1 WLR 1102, the Court of Appeal, in construing RSC O.10, r.1(2) followed the construction in National Westminster Bank v. Betchworth Investments. One judge, Lloyd LJ, at p.1116, thought that in the absence of binding authority there was much to be said for the argument that the last known address meant not the last address known to the plaintiff but the last ascertainable address or last address known generally, and that an objective test was to be applied.

Two cases under the CPR cited to me for other purposes make reference to CPR Part 6.5(6). The rule is referred to in Cranfield v. Bridge [2003] 1 WLR 2441 in the context of last known place of residence. Although the particular point did not arise for decision (see para.102 of the judgment), Dyson LJ refers to "the claimants knowing or believing that the defendant is not living at the last known address".

In Arundel v. Khakher [2003] EWCA (Civ) 1784 Mummery LJ, in giving the judgment of a Court of Appeal presided over by the Master of the Rolls, referred to the construction of the last known place of business in a lease, but does not address directly the question of interpretation of the phrase or cite any authority. However, he appears to assume that in that context the expression meant the last address known to the defendant. At para.13 of the judgment he said:

The issue was decided on the different question of whether, in any event, an address can be deemed to be the last known place of business when the solicitor acting for the party knew of a later address but forgot about it.

Neither party has suggested that I am bound by either of these CPR decisions to find that "last known address" means last known address known to the claimant. I agree that I am not bound by those decisions in relation to the interpretation of Part 6.5(6) of the CPR.

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.

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.

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 v. Khakher.

The second issue of law relates to how I should approach the question of the knowledge imputed to the claimants as a result of the assignments. The parties are agreed that the knowledge of an assignor must be imputed to the assignees as at the date of the assignment. This means that I have to consider (a) whether in each case the knowledge of the assignors, obtained in 1998 as to Mr. Kilgour's last known place of business, was knowledge passed on to these claimants at the date of the assignments on 23rd November 2001 (Holdings), and 3rd December 2001 (Cool Stores); and (b) whether such knowledge is to be imputed to the claimants at the time of service of the claim form. No authority has been cited to me on this issue.

Finally, if I find against the claimants on the question of service at the last known place of business, I must consider the claimants' application for an extension of time under Part 7.5 of the CPR. The rule is set out in Part 7.5(2) namely:

Under Part 7.6:

In Hashtroodi v. Hancock Dyson LJ gave clear guidance as to how this issue should be approached. He concluded (in summary) as follows:

The first question is whether the claimants served Mr. Kilgour at his last known place of business. As I have said, this raises the further question of whether or not the claimants took reasonable steps to acquire the requisite knowledge at the time of service. In my view, they did not do so. Mr. Kilgour is a professional architect. His name appears in the relevant professional directories. Searches could and should have been made either through the RIBA itself or by searching the Kent Region section of the RIBA directory, or through the Architects' Registration Board or the Yellow Pages for Kent. Miss Pooley says that she searched the RIBA directory of practice and did not find any address. This should have prompted her to make further enquiries to find out whether or not Mr. Kilgour was still in practice and, if so, at what address.

Although this is not part of the answer to the first question it so happens that in this case it was particularly important to make these enquiries. The knowledge of the assignors is to be imputed to the assignees as at the date of the assignment. Holdings thus acquired the knowledge of Sheerness as at 23rd November 2001. I can see no reason why this knowledge did not include knowledge of Mr. Kilgour's change of business name and address, which Sheerness acquired in 1998 in relation to the planning application. I would assume that this information would be retained on Sheerness' files. Once Holdings had the knowledge, I can see no reason why it would not retain it and why it did not therefore continue to have the knowledge until such times as it was superseded by the type of enquiries as to the current position which I have already outlined.

Equally, in the case of Cool Stores, it acquired the knowledge of Spade Lane as at 3rd December 2001. I can see no reason why this did not include knowledge of Mr. Kilgour's change of business name and address acquired in extensive dealings in 1998. Again, I assume that the information would be retained on file. Once Cool Stores acquired this knowledge, I can again see no reason why it did not continue to have it until such times as it was superseded by the type of enquiries as to the current position which I have already outlined.

If I had had to reach a conclusion on the assignment issue I should have concluded that the knowledge of Sheerness and Spade Lane would be imputed to Holdings and Cool Stores as at the date of the proceedings or until it had been superseded by the inquiries which these claimants should have made before issuing the claim form.

I therefore need to consider the claimants' applications for extensions of time under Part 7.6(2). The first reason why good service was not achieved within the four months time limit was that the claimants made insufficient efforts to investigate Mr. Kilgour's last place of business. If it had done so, it would in fact have served him at his actual place of business at Rosewood House, High Street, Hadlow, Tonbridge, Kent.

The second reason why good service was not effected was that the claimants waited until almost the last moment of the six years and four months time limit before attempting service. It so happens that if they had attempted service earlier, it is likely that the claim form would have been served on Mr. Kilgour within the statutory time limit.

I also note, although it is not a requirement for service of proceedings, that the claimants made no attempt to communicate with Mr. Kilgour before the issue of the claim form. If, as is customary, they had written a letter before action at a date substantially in advance of the deadline, it is likely that they would have discovered Mr. Kilgour's current business address or have had an opportunity to make further enquiries before serving the claim.

For the two reasons set out above, I conclude that the claimants failed to take all reasonable steps to serve the claim form. Had the claimants taken all reasonable steps, I am satisfied that the claim form would have been served within the time limit set out in the rules.

I follow the judgments the Court of Appeal in Hashtroodi and Vinos in concluding that there is nothing unjust in a claim becoming statute-barred where the claimants left issuing proceedings to the last moment and then failed to effect good service on Mr. Kilgour in time.

It is suggested that Mr. Kilgour is not prejudiced by being served one day late. Mr. Kilgour would, of course, be prejudiced if in fact he had to contest an action which is otherwise statute-barred.

In any event, in my view, this question is irrelevant. The test is focused not on Mr. Kilgour but on the question of whether injustice being done to the claimant.

Had I concluded that the condition in Part 7.6(3)(b) had been satisfied, I should have had to consider Part 7.6(3)(c) which provides that an extension of time for service of the claim form can only be granted where the claimant has acted promptly in making the application. In this case, Mr. Kilgour made it clear, both personally and through his solicitors, that he was not waiving any of his rights. Even if it could be said that in a sense the issue was in abeyance until the claimants had decided which defendants should remain in the action, my order at the case management conference of 30th January 2004 required the claimants to decide this question by 12th March 2004. At the latest the application to extend the time for service of the claim form should have been made promptly after 12th March 2004. It was not. The requirement of Part 7.6(3)(c) was not, in my view, complied with.

For these reasons I answer "No" to the question: "Did all or any of the claimants validly serve the claim form on the fourth defendant in accordance with CPR Part 6.5?"