Murrills v Berlanda and another  EWCA Civ 6 is a reminder of the need to carefully consider the rules on service of the claim form before attempting to commence proceedings against a prospective defendant. In that case, the claimant attempted to rely upon CPR 6.9 in arguing that the claim form had been validly served on a defendant at his last known address within the jurisdiction but who had left the jurisdiction.
CPR 6.9 is concerned with service of the claim form where the defendant does not give an address at which the defendant may be served. CPR 6.9(2) sets out how certain types of defendant should be served. For example, where the defendant is an individual then he must be served at his last known address. Where the defendant is a company, service must take place at the principal office of the company or any place of business of the company within the jurisdiction which has a real connection with the claim.
In Berlanda, the claimant alleged that the first defendant, a cosmetic surgeon employed by the second defendant, had provided negligent treatment. The first defendant was an Italian national who lived in Trento for 30 years and where he had a consulting room. He worked for the second defendant for short periods of time before returning to Italy.
In 2009, the claimant’s solicitors wrote to the first defendant concerning the claimant’s allegations against him. The first defendant informed the claimant’s solicitors that he was no longer employed by the second defendant but offered to see the claimant at the premises of a company in Kent (the company). The claimant’s solicitors did not respond to that offer and again wrote to the first defendant, to which the first defendant replied by providing the details of his insurers. Eighteen months passed without further communication from the claimant’s solicitors.
This was, as Sir Stanley Burnton noted, ‘an extraordinary delay in the context of a personal injury claim’. The claimant’s solicitors eventually issued a claim form on 21 February 2012, a week before the expiration of the limitation period. The claim form gave the address of the company as that of the first defendant. Despite the expiration of the limitation period and the requirements of the clinical negligence protocol, the claimant’s solicitors were not in a position to serve the particulars of claim or to comply with various requirements under the protocol.
The claimant’s solicitors wrote to the first defendant seeking confirmation of his address for the purposes of serving the claim form and stated that, in the absence of that confirmation, they would proceed to serve at the company’s address, which they eventually did. The company returned the claim form to the claimant’s solicitors, stating that the first defendant was no longer employed with the company. The claimant’s solicitors then applied to the court for an order to serve the claim documents by email. The order was granted and the documents were served on the first defendant. The first defendant’s solicitors made an application to strike out the claim which was granted.
At first instance, the judge held that the first defendant had not been validly served because he was served as an individual and the address of company had never been his residential address. Further, the claimant’s solicitors knew his address in Italy, and should have utilised CPR 6.41 (service in accordance with the service regulation).
The judge held: ‘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.’
The claimant’s solicitors appealed on the grounds that the judge should have held that the claim form had been validly served at the company’s address.
Giving the leading judgment, Sir Stanley noted that this was a case in which, if the claim form was to be served within the jurisdiction, CPR 6.9 applied, since the first defendant had not given an address for service. The first question to be addressed under paragraph 6.9 was whether, for the purposes of CPR 6.9, the first defendant 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.
Counsel for the claimant submitted that the first defendant was an individual being sued in the name of a business, since he was carrying on business when he treated the claimant. This argument was dismissed by Sir Stanley, who explained the application of CPR 6.9: ‘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 CPR 6.9 had been intended to apply to 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, Sir Stanley argued, 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 claimant’s solicitors had no residential address for the first defendant 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 claimant’s solicitors should have proceeded under CPR 6.41 immediately after the claim form was issued.
Masood Ahmed, University of Leicester