The Hon Mr Justice Colman :
Introduction
- This is an application by the defendant for an order that there has not been valid service of the claim form and/or that the claim has been struck out. There is an application by the claimant that pursuant to CPR 6.9(1) the court do dispense with service of the claim form. That application is made in case it be held that there has not been valid service of the claim form.
- These applications arise in the following circumstances.
- Up to 15 December 1997 the defendant was a self-employed stockbroker working at Branston & Gothard Ltd ("B&G). He was party to a contract for services dated 1 July 1997 under which he assumed a liability jointly with another stockbroker working there – a Mrs Mehta – for the default of any client which either he or she introduced to B&G. The latter company terminated the defendant's contract on 15 December 1997.
- A claim was made against the defendant for £356,333 plus interest. It was said that these moneys were due from clients in default. The defendant contends that the defaulting clients were those of Mrs Mehta, that B&G were in breach of contractual warranties and representations made to him as to how they would allow her to conduct business with her clients and that the claims had arisen because B&G had wrongfully permitted the defaults to occur.
- On 12 August 1998 B&G went into compulsory liquidation. No proceedings against the defendant had yet been started. Pricewaterhouse Coopers ("PwC") were appointed liquidators. They appointed Fox Williams ("FW") to act as solicitors on behalf of the liquidators and B&G. The estimated deficiency was between £5.3 million and £6.4 million. B&G were a subsidiary of the claimant.
- Following correspondence between FW on behalf of the Liquidators and Sebastians on behalf of the defendant commencing in August 2000 and continuing to 1 March 2001, in the course of which the defendant rejected the claim, then put at a provisional balance of £258,308.15, FW by their letter of 1 March 2001 invited Sebastians to confirm that they were instructed to accept Service of proceedings. On 27 March 2001 Sebastians replied in some detail and asking for documents and further information. Their letter concluded with these words:
"Nothing in your letter of 1 March convinces us that you have a sound case against our client. In fact, the reverse is true and our instructions are to continue to deny liability on behalf of our client.
Any proceedings issued will be vigorously opposed. We confirm that we have instructions to accept service."
- Nothing then happened until 9 October 2001 when FW replied explaining the delay by reference to difficulties in locating certain documents. Further research had led the Liquidators to include an additional £95,619.11 in the claim, producing a total of £356,333.52. The letter stated that "we have been instructed to prepare proceedings" and thanked Sebastian's for confirming that they were instructed to accept service.
- On 21 February 2002 FW called for substantive comments in relation to the issue of the balance of £95,619.11 "in order that we can finalise proceedings". After Sebastians had replied querying the date of the letter referred to as dated 19 October 2001, there was no further word from FW for 21 months. Then on 26 November 2003 FW wrote direct to the defendant, and not to Sebastians, enclosing "by way of service" a Deed of Assignment dated 22 October 2003 whereby B&G assigned to the Claimant a debt defined as the amount of £356,333.52 owed pursuant to the defendant's agreement with B&G.
- On the same day the claimant confirmed to FW instructions as its solicitors to send the executed Deed of Assignment to the defendant. FW then opened a new client file and allocated a new client reference number. The solicitor in FW who had been handling the claim by the Liquidators against the defendant left the firm in May 2002. After that John Greager of that firm took over charge of the matter. From the date of the Deed the claim by the claimant was taken over by Sarah Pooley, a solicitor, employed by FW.
- On 1 December 2003 FW received instructions from the Claimant to issue proceedings against the defendant. That was done on the same day.
- On 14 December 2003 the period of six years from the termination of the claimant's agreement with B&G expired.
- On 24 March 2004 the claimant instructed FW to serve the claim form on the defendant and this was done by sending it by first class post on 24 March. The validity for service of the claim form expired on 31 March 2004.
- On 8 April 2004 Sebastians, the defendant's solicitors, wrote to FW drawing their attention to the fact that the claim form ought to have been served on them, as the solicitors instructed to accept service and that the service was therefore invalid. By that time the validity for service of the claim form had expired.
The Defendant's Applications
- It has been submitted by Mr Stephen Nathan QC that the defendant is entitled to an order as identified in his original application on the following grounds.
1) The effect of CPR 6.5(4) is that the claim form could only validly be served on Sebastians at their address and could not validly be served on the defendant personally at his private address.
2) There was no valid notice of assignment because the notice incorrectly stated the date of the relevant assignment.
- By a draft amended application, for which amendment the defendant required permission and which was served only on one clear day before the date fixed for the hearing of the original application, the defendant added the following party to the grounds relied upon.
3) The Deed of Assignment was not validly executed by the claimant as it purported to be.
4) The claim form did not comply with the requirement under CPR 16.2(1)(a) and CPR 16 PD paragraph 2.1 that it "must contain a concise statement of the nature of the claim".
- These additional grounds were objected to by Mr Clarke, on behalf of the claimants, particularly in view of their last-minute introduction into the application. As it happened, the length of time estimated for the hearing (two hours) which commenced on 25 June was seriously deficient, even for the defendant's original application and the claimant's application, and consequently the hearing had to be adjourned to 8 July. That gave enough time for the claimant to prepare its case on the additional grounds. Consequently, all grounds were carefully argued and permission to amend the application was given.
- The procedural basis for the defendant's application differs according to the ground in question.
- Grounds (1) and (4) go to "failure to comply with a rule, practice direction or order" within CPR 3.4(2)(c) and Grounds (2) and (3) go to CPR 3.4(2)(a) – "that the statement of case discloses no reasonable grounds for bringing or defending a claim". Since Grounds (1) and (4) go to the formal validity of the claim and its service, it is convenient to consider these grounds first. And since the claimant's application is designed to cure any such invalidity, that can be considered at the same time.
Failure to serve the Defendant at his Solicitor's Address
- It provided CPR 6.5 as follows:
"(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."
- In Nanglegan v. Royal Free Hampstead NHS Trust [2001] EWCA Civ 127 it was held by the Court of Appeal that once a party has given an address for service, be it his residential address, the address of his place of business or the business address of his solicitor, service at any address other than the one given will be invalid. In that case, it was held that there had been no valid service on the defendant NHS Trust by sending the claim form to the chief executive of a hospital when the Trust's insurer had already notified the claimant's solicitor that the claim should be served on a particular firm of solicitors.
- It is submitted by Mr Nathan for the defendant that once FW had been informed by Sebastians on 1 March 2001 that they were instructed to accept service of the Liquidator's claim, valid service of the claim form could be effected only at Sebastian's business address and, accordingly, valid service could not be effected by sending the claim form to the defendant's private address.
- No doubt, if the claim identified in the claim form were brought by B&G through its liquidators, this submission would be impregnable, subject always to the possible application of CPR 6.9. However, in this case, between the time when Sebastians had informed FW that they were instructed to accept service and the time when service was effected, the assignment to the claimant had taken place and the claim in question, although still founded on the allegation that the defendant was liable in respect of clients' defaults under the agreement between him and B&G, was no longer brought by B&G through its Liquidators but by the claimant, its parent company, as statutory assignee.
- Accordingly, the question arises whether CPR 6.4 and 6.5 have the effect that where a proposed defendant's solicitor has notified an anticipated claimant's solicitor that he is authorised to accept service of a document on behalf of the proposed defendant, and that document is a claim form, that solicitor is mandatorily obliged to serve on the defendant's solicitor a claim form in respect of a claim by another client as assignee of the original claim.
- The words of CPR 6.4 and 6.5 are not drafted by reference exclusively to a claim form or, indeed to a claim, but to a document. That document need not therefore be a claim form. It is, however, clearly intended that "the document" the subject of the solicitor's notification under CPR 6.4(2) and the address for Service under CPR 6.5(2) must have been in some way defined in advance by reference to its essential characteristics. Thus, an indication by a potential defendant's solicitor that he is authorised to accept service of proceedings which have already been the subject of discussion or which raise a claim which has already been put forward cannot ordinarily be taken to have indicated his authority to accept service of a document relating to different proceedings or to a different claim. The solicitor who represents that he is authorised to accept service of a claim form in respect of claim X does not engage CPR 6.4 in relation to service of a claim form in respect of claim Y unless he is also indeed authorised to accept service of such a document. If, therefore, one approaches the question by asking whether it would necessarily follow that a solicitor originally authorised to accept service of a claim form would necessarily also be authorised to accept service of a claim form which any assignee of the original claim was the claimant, the answer is bound to be No. There might be very good reasons why the proposed defendant would not wish that particular solicitor to act for him against that particular assignee.
- Further, although a statutory assignee takes subject to equities which go to the substance of the debt assigned, he does not take subject to the procedural status of the assignor at the time of the assignment. Thus, if after the commencement of proceedings for the recovery of a debt, the claimant were to assign the debt to an assignee and give notice of the assignment to the defendant, it would not be open to the assignee simply to conduct the proceeding as if he were standing in the shoes of the assignor unless he were joined as a claimant under CPR 19.2(4) and proved his title to sue as assignee.
- Having regard to these considerations I have no doubt that the scope of the solicitors' authority to accept service of a claim form must be defined not only by reference to the claim which has already been indicated by the potential claimant but also by reference to the identify and capacity of that claimant. An affirmative response to an enquiry whether a solicitor is authorised to accept service of a particular claim for a debt by X is not ordinarily notification that he is also authorised to accept service of a claim brought by Y in relation to the same debt and certainly not if Y claims not as creditor but as assignee.
- That the identity of the claimant is in principle crucial is conclusively made good by the words of CPR 6.2(2)(b). The notification of authority to accept service has to be notification to "the party serving the document". If this is a claim form, the party serving the document is and only is the claimant named in the claim form. If the notification under CPR 6.4 is to that party then the party to whom the address for service is given under CPR 6.5 must equally be the party who is to use the address for Service and where the document is a claim form that can only be the claimant.
- In the present case the party to whom the address for Service was given was B&G through its Liquidators. It was not the claimant. The notification to FW was therefore one confined to Service of a claim form under which B&G through its Liquidators were sole claimants.
- It follows that at the time when the claim form was served in this case neither the defendant nor his solicitors had given an address for Service within CPR 6.4 or 6.5 and it therefore further follows that service of the claim form at the defendant's residential address did not render service defective.
The Claimant's Application under CPR 6.9
- In view of my conclusion on the validity of service, this application does not arise. However, I can briefly indicate what would have been my conclusion on this application had it been necessary to decide it.
- It is argued by Mr Ian Clarke for the claimant that this application retrospectively to dispense with service on the defendant's solicitors ought to be granted because it does not offend against the approach of the Court of Appeal in Anderton v. Clwyd County Council [2002] 1 WLR 3174. In particular, the claim was brought to the defendant's attention by means of the claim sent directly to his residential address within the period of validity for service. The making of an order under CPR 6.9 would not circumvent the rules about the retrospective granting of extensions of time made necessary by the claimant's failure to effect valid service within time.
- It is clear from the recent authorities on the utilisation of CPR 6.9, namely Anderton v. Clywd CC, supra, and Cranfield v. Bridgegrove Ltd [2003] EWCA Civ 656 that CPR 6.9 can be applied with retrospective effect in exceptional circumstances even where the making of such an order has the same effect as if an order had been made extending time for service of the claim form or providing for an alternative method of service. What facts are necessary to render the circumstances exceptional cannot be pre-defined, but in general the starting point will normally be that within the time for Service the defendant has been as fully informed of the claim against him as if service of the claim form had been properly effected. The provision of effective Service would therefore not have provided the defendant with anything of substance he did not already have except a formal document.
- If, as held by the Court of Appeal in Nanglegen v. Royal Free Hamptstead NHS Trust, supra, CPR 6.8 cannot be used retrospectively to circumvent the mandatory service requirements of CPR 6.5(4) by providing for the ineffective service to be treated as effective by virtue of an order for service by alternative means actually used, it is hard to see how in principle CPR 6.9 can be deployed retrospectively to circumvent those mandatory service requirements by an order that service be dispensed with. However, in Wilkey and Dass Systems Ltd v. BBC and Moyles [2002] EWCA Civ 1561 the Court of Appeal indicated (at paragraphs 18 and 19 of the judgment of Simon Browne LJ.) that in post-Anderton cases, of which this is one, "the dispensing power should …. ordinarily not be exercised in the claimant's favour". It is to be observed that it was exercised in Wilkey and Dass Systems in circumstances in which the claim had been received by the defendant within the time for service specified by the rules, but had not been received in the correct form. He was therefore provided with everything that he ought to have had in time except the original form. At paragraph 26 of his judgment Simon Brown LJ. stated that if the same facts occurred in future in a post-Anderton case, a stricter approach should be adopted and the claimant could fail to obtain dispensation of service.
- The facts in the present case are that, the claim form was served on the defendant personally and thereby provided him personally with all the information as to the claim that he would have had if the solicitor had sent it on to him following service on the solicitor. However, the method of service mandatorily required was that the solicitor should first receive it and thereby be given notice of the claim form before the defendant, as well as within the period for service. Dispensation with service by that method would not retrospectively lead to the solicitor being first in receipt of the claim form, as the defendant required him to be. Given that that feature of the service being ineffective and having regard to the observations in Wilkey and Dass Systems, as to the strictness with which the service requirements should now be enforced, I would have refused the application by the claimant to dispense with service in this case.
Was the Claim Form defective?
- Under CPR 16.2(1)(a) the claim form must "contain a concise statement of the nature of the claim" and under CPR 16.2(d) it must "contain such other matters as may be set out in a practice direction". The claim form did not include particulars of claim but, in accordance with CPR 16.2(2) stated that such particulars would follow.
- The claim form stated under the heading "Brief details of claim".
"(1) Damages or an assessment of damages for breach of contract in the sum of not less than £356,333,52.
(2) Interest pursuant to Section 35A of the Supreme Court Act 1981, in such amount or at such other rate as the court deems just.
(3) Costs."
- It was signed against "claimant's solicitor" with the name of the claimant's firm FW, but not by John Graeger, the member of that firm dealing with the Greager case, whose name was printed in the space for claimant's or claimant's solicitor's address.
- It is submitted on behalf of the defendant that this claim form is seriously defective in the following respects.
i) It failed to identify the contract said to have been broken by date or parties.
ii) It failed to identify the claimant as assignee of B&G's rights or to give the date of the assignment or state that notice of that assignment had been given to the defendant.
iii) It was not signed by the claimant's solicitor personally.
Mr Nathan QC also raised the issue as to whether the claim form properly stated the claimant's place of business by reference to "c/o Martineau Johnson". That point was raised for the first time in the course of the hearing and could not be dealt with by the defendant's counsel without further instructions. It should have been raised in advance upon service of the application but was not. That point could not be fairly dealt with and was disallowed.
- As to (i) and (ii) it is accepted quite properly by Mr Clarke on behalf of the claimant that the claim form was deficient in those respects relied on by the defendant. However, Mr Clarke submits that these defects are not such as to render the claim form a nullity unless the Court so orders.
- I interpose that CPR 3.10 provides as follows:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
- The service of the claim form was preceded by the following relevant events.
i) On 9 October 2001 FW, then acting for the Liquidators, wrote informing Sebastians that B&G's claim under the contract of 1 July 1997 was in the amount of £356,333.52.
ii) On 26 November 2003 FW sent direct to the defendant the deed of assignment from B&G in Liquidation to the claimant. The deed stated that B&G assigned to the claimant "the Debt" which was defined as "the Amount owed pursuant to the Account Executive Agreement between Branston & Gothard Limited (in Liquidation) and Gerald Joseph Quinton dated 1 July 1997 in the sum of £356,333.52".
It also stated:
"3.1 By an order of the Court dated 12 August 1998 it was ordered that the Vendor be wound up under The Insolvency Act 1986, and by a winding up petition dated 17 April 1998 the Liquidators be appointed as liquidators in respect of the winding up.
3.2 The Assignor has agreed with the Assignee for the absolute assignment to it of the Debt which assignment is made pursuant to section 136(1) of the Law of Property Act 1925."
- The claim form was issued four days later and was served on 26 March 2004.
- Eventually, on 30 June 2004, particulars of claim were served.
- The claim was put in damages and alternatively for £356,333.52 in debt.
- Accordingly, at the moment of service of the claim form the defendant must at once have appreciated that here was a claim brought by the claimant as assignee under the deed of assignment of the amount alleged to be due from the defendant under the 1 July 1997 agreement. In other words, he knew everything that ought to have been included in the brief description of the claim in the claim form.
- If the court is to strike out the claim form on the grounds of defect by omission of such descriptive detail it will be bringing to an end proceedings on the grounds of formal defects in the form which have not in any way been prejudicial to the defendant's understanding of the nature of the proceedings started against him. In these circumstances the striking out of the claim form on these grounds would in my judgment be an excessively strict response by the court in circumstances where nothing in the overriding objective calls for such a draconian sanction.
- The claim form should have been signed by the solicitor personally in charge of the claim. However, his name was clearly printed underneath the name of the firm and he had therefore in effect put his name to the proceedings. There is here no real prejudice to the defendant and there is certainly nothing so serious as to justify striking out the claim.
- Mr Nathan, on behalf of the defendant, also argued that the claim form was defective in another respect. What was assigned by the deed of assignment was a debt said to be due from the defendant to B&G, yet the claimant identified a claim for "damages" in the claim form. In the draft particulars of claim exhibited to the first witness statement of Sarah Pooley of the claimant's solicitors the claim is put exclusively in debt. In the particulars of claim actually served on 30 June 2004 after the first day of the hearing of these applications, the claim is put in damages for breach of contract and alternatively in debt. It is argued that in as much as the claim form refers only to a claim for damages and the assignment is of a debt, the claim form is further defective in as much as it did not accurately describe the claim.
- This was not a ground relied on in the application and it should not have been raised at the hearing. However, as in my judgment, it has no substance, the following can be said.
- The question whether, having regard to the terms of the assignment the claimant has title to sue as assignee of B&G's claim against the defendant is one which goes to the substance of the claim and not to whether the claim form was defective. The assignment was clearly of the right to sue the defendant on the agreement for the amount of relevant client defaults. That is completely obvious from the definition of "the Debt". Whether that claim would be a claim in debt or a claim for unliquidated damages for breach of contract is a question of law. The reference to the "amount owed" under the agreement and its express quantification as £356,333.52 does not lead to the conclusion that if the claim under the contract is one for unliquidated damages quantified in that sum, nothing has been assigned. It simply means that the parties have mis-described as a debt the cause of action covered by the deed. As it happens, this claim was, when correctly analysed, one for unliquidated damages, but that does not invalidate the deed as a vehicle which effectively transferred such claim to the claimant. Similarly, the claim form reflected the substance of the assignment by referring to "damages for breach of contract".
- There is thus no defect in this respect in relation to the claim form. If the defendant seeks to challenge the efficacy of the assignment of a claim for damages under the agreement it can raise that point at the trial. Equally, if it wishes to challenge the inclusion in the particulars of claim of a claim in debt, because no such claim has been described in the claim form and any such claim was time-barred on 30 April 2004, it can do so by applying to strike out the relevant passage in the particulars of claim. What is not open to it is to run these points in the course of the present applications.
The Assignment: the date
- It is argued on behalf of the defendant that there was no valid notice of assignment due to the fact that when notice was given this was by means of the sending of a copy of the deed of assignment, with a backsheet showing the words "DATED 22 OCTOBER 2003" and further down the page in small print the words "Version date: 23 Oct 03".
- No other date appeared on the assignment. It included by clause 5:
"The signature or sealing of this document by or on behalf of a party shall constitute an authority to its solicitor to date it and delivery it as a deed on behalf of that party."
and ended with the words:
"IN WITNESS of which this document has been signed and sealed as a deed and delivered the date and year first before written."
- The appearance of two dates is explained by Ms Pooley of FW as follows.
- The deed was first signed by Mr Waterhouse, the Liquidator of B&G, and witnessed on 22 October. The deed was then sent to the claimant's offices where it was signed by Mr Silcock, a director of the claimant assignee, and witnessed on the same day. It was then sent to F&W who received it on 23 October. The date at the top of the backsheet was then inserted by Ms Pooley as 22 October, that being the date by which both Mr Waterhouse and Mr Silcock had executed it. It was of course printed by computer and the computer automatically, but completely superfluously, printed out "version date 23 October" on the backsheet because that happened to be the date on which the backsheet was printed off in its final form. Ms Pooley ought to have caused this to be deleted but failed to do so.
- It is submitted that the effect of clause 5 was that once both Mr Waterhouse and Mr Silcock had signed, FW had authority to date it and deliver it as a deed on behalf of that party. That was what she did.
- Mr Nathan argues that under section 36A of the Companies Act 1985 the claimant never executed the deed because only one director signed it and not either two directors or one director and the secretary. That section provides:
"(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by the company.
(2) A document is executed by a company by the affixing of its common seal.
(3) A company need not have a common seal, however, and the following subsections apply whether it does or not.
(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.
(5) A document executed by a company which makes it clear on its face that it is intended by the person or persons making it to be a deed has effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to be delivered upon its being so executed."
- Therefore clause 5 was never engaged and Ms Pooley never had authority to date it or deliver it on behalf of the claimant. It was therefore not validly executed as a deed. Further, Ms Pooley did not date the document that had been signed, but another document – the one bearing the two dates. Indeed, FW did not have authority to act for the claimant until 6 November 2003. Therefore, the notice given to the defendant on 26 November 2003 was not a valid notice of a valid assignment. The document in question had not been validly executed as a deed and even if it were valid it bore two dates so that the defendant could not ascertain on which date the assignment had taken place.
- The defendant's argument proceeds on the basis that under section 136 of the Law of Property Act 1925, valid notice of an assignment can only be effected if the date of the assignment is stated in the notice. This is wrong as a matter of law: see Van Lynn Developments Ltd v. Pelvis Construction Co Ltd [1969] 1 QB 607. If the notice of assignment describes the assignment by reference to a wrong date, there is authority that the notice is invalid because it has described a non-existent document: see W F Harrison & Co v. Burke [1956] 1 WLR 419 as explained in Van Lynn Developments, supra. Where a copy of the written assignment is sent to the debtor there is no question of misdescription. That is what happened here. The deed was sent to Mr Quinton. That was valid notice of any assignment effected by it, however many dates appeared on its face.
- The notice of assignment was therefore valid or at least strongly arguably valid. Whether FW were formally engaged as the solicitors of the claimant at the relevant time is of no relevance. They were clearly authorised to send the notice and assignment to the defendant.
Deed of Assignment: invalidity
- It is submitted that because the deed which was agreed by the liquidator and the claimant to be the vehicle for the assignment was not validly executed by the claimant and not therefore validly dated, it was consequently incapable of effecting a valid assignment so as provide the claimant with title to sue.
- It is reasonably clear that there was a failure by the claimant company to comply with section 36A in as much as the deed of assignment was not executed by fixing the common seal of the company to the document or by means of signature by two directors or by one director and the secretary. However, that would go no further than invalidating the execution of the document as a deed by the assignee. It would not, however, render the signature of the Liquidator on behalf of B&G ineffective. The result would be a document signed by the Liquidator effecting an assignment to the claimant of the chose in action defined by the word "debt" in the document. That would amount to an "absolute assignment by writing under the hand of the assignor" of the right of action in question within section 136(1) of the 1925 Act. It is unnecessary for this to be by way of deed, firstly because any signed writing will be enough: see Marchant v. Morton Down & Co [1901] 2 Ch 829 @ p832 and The Kelo [1985] 2 Lloyd's Rep 85 at p89 and secondly, because consideration is not required to support a statutory assignment and lack of consideration therefore does not need to be made good by deed: see Holt v. Heatherfield Trust [1942] 2 KB1 @p5.
- Accordingly, the defendant's argument that the claimant has no realistic prospect of establishing that it has title to sue as assignee or that there has been a valid assignment must be rejected. Indeed, on the materials before this court, it is very probable that the assignment was a valid statutory assignment of the right of indemnity under the agreement of 1 July 1997 and that the claimant therefore has title to sue the defendant.
- Accordingly, there is no basis for striking out the claim form and the defendants' applications are therefore refused. The claimant's application does not arise.
