Prior to the Mitchell decision the easiest way for a claimant to come to grief on a procedural issue was to make a mistake with service of the claim form. The decision Murrills –v- Berlanda  EWCA Civ 6 shows that failing to serve properly can still cause an action to fail.
THE FACTS OF MURRILLS
This was a clinical negligence case relating to cosmetic surgery carried out by the defendant doctor. The doctor was Italian and worked in England only intermittently. When a letter of claim was written the doctor replied offering to see the claimant at a clinic in Kent. This offer was refused. There was no further correspondence for 18 months.
SERVICE OF THE CLAIM FORM
Proceedings were issued just before the expiry of the limitation period. The claimant’s solicitor wrote to the defendant and wrote to him in Italy asking for an address for service. The letter stated that, if no response was received, then the address given for the proposed consultation would be used. A response was received denying liability. Nothing was said in relation to service.
The claimant obtained permission to serve without the Particulars of Claim and medical report and served proceedings at the address of the clinic in England.
The proceedings that were sent to the clinic were returned by that clinic. It stated that the defendant no longer practised at the clinic and they did not have a forwarding address.
Several months later the claimant’s solicitors wrote to the defendant in Italy asking for an address for service. That letter (wrongly) asserted that the previous address for service had been given as the clinic.
The claimant obtained an order for service by e-mail and duly sent the documents by e-mail.
SETTING ASIDE SERVICE
Upon receiving the documents the defendant’s solicitor made an application disputing the jurisdiction and for an order that the action be struck out.
The judge at first instance held:
- The defendant had never been validly served.
- He was sued as an individual and the address of the clinic had never been his residential address.
- The claimant’s solicitors knew the address in Italy and should have utilised CPR 6.4.
- The defendant was not seeking to avoid service. Indeed the requisite information had been provided.
- It would be a wrongful exercise of his discretion to remedy matters when the correct procedure was not followed, and that procedure was not unduly burdensome.
THE CLAIMANT’S ARGUMENT IN THE COURT OF APPEAL: VALID SERVICE HAD TAKEN PLACE BY SERVICE AT THE CLINIC IN THE UK
There were a number of points:
- The defendant was sued as an individual.
- A doctor could be carrying on a business, however in the current case he was being sued in his capacity as an employee of a business.
Sir Stanley Burton observed:-
“18. 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.
19. 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.”
20. 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.”
WHAT IF THE DEFENDANT WAS A BUSINESS?
Even if the defendant was a business this did not assist the claimant. The claimant knew that the defendant no longer carried on business at the clinic. They knew his place of business in Italy.
NO IMPLIED ORDER FOR SERVICE IN UK
It was argued that an order implicitly authorised service at the clinic in the UK. The court held “Such an order must be express: it was neither sought or made”.
The Court concluded:
“24. It follows that the Judge was right to find that there had been no valid service of the claim form on the Respondent.
25. 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.
26. 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  EWCA Civ 1879  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.”
SERVICE OF THE CLAIM FORM: A DANGEROUS AREA
This remains an area of potential danger for a claimant. Before issue (let alone service) a claimant has to know.
- Who to serve.
- How to serve
- Where to serve
It remains an area where some litigators are surprising relaxed. I only know of one firm which has a system telling it when an address has been given for a service, or a solicitor has written to state service must take place on them. (Does everybody else go through the entire file and series of e-mails to check just before service?).
The issue of service at the last known address. I was involved in one of the Court of Appeal cases on this issue. Similarly service at the last known address has sparked some controversy and given rise to some case law (although the rules were amended after that case so that service can only take place at the last known address if reasonable steps have been taken to identify a new address). The issue of service at a “business address” has also caused some controversy, see O’Hara -v- McDougal  EWCA Civ 1623