Lakah Group & Anor v Al Jazeera Satellite Channel & Anor

For service of a claim form on a corporation within the jurisdiction, the relevant place must be one where it carries on activities or has a place of business. A transient or irregular connection is insufficient. The tests are effectively the same for a corporation and a company under CPR 6.5(6). The court may retrospectively dispense with service in an appropriate case, but cannot use that discretion to achieve in substance an extension prohibited by CPR 7.6(3). Relevant circumstances include the explanation for late service, criticism of the claimant or advisers, and possible prejudice. Permission to appeal should be refused where the first-instance judge applied the correct tests and had ample supporting material.

These were applications for permission to appeal two judgments of Mr Justice Gray dated 26 March and 11 June 2003. The first concerned service of proceedings on overseas defendants, particularly whether service on an employee at premises used by an English company was valid service on the first defendant. The second refused retrospective dispensation with service, struck out the claim and made a costs order. The applications raised whether service on the first defendant satisfied CPR 6.5(6), and whether the refusal to dispense with service under CPR 6.9 gave rise to an arguable appeal.

1. The applications for permission to appeal were dismissed. The proposed challenge to the service decision had no reasonable prospect of success. The proposed challenge to the refusal to dispense with service likewise had no real prospect of success.
2. Under CPR 6.5(6), where no solicitor is available to accept service and no address for service has been given, service on a corporation or company must be effected at a place within the jurisdiction where it carries on activities or at its place of business. The tests for a corporation and a company were effectively the same. Service at an address with which the company had only a transient or irregular connection was invalid.
3. The first-instance judge was entitled to find that service on Mr Fouda, an employee of Al Jazeera Satellite Channel Ltd, did not establish service on the first defendant. He was not prepared to find that Mr Fouda held a senior position with the claimant within paragraph 6.2 of the Practice Direction. Nor was there sufficient evidence that No 8 Ganton Street was a place where the first defendant carried on activities or had a place of business. The Court of Appeal held that the correct tests had been applied and the conclusion was open on the evidence.
4. CPR 6.9 is sufficiently widely worded to permit retrospective dispensation with service in an appropriate case. However, following Anderton v Clwyd County Council [2002] EWCA Civ 933; 1 WLR 3174 and Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1WLR 997, that discretion cannot be used to achieve in substance an extension of time prohibited by CPR 7.6(3).
5. Relevant circumstances may include the explanation for late service, criticism of the claimant or advisers, and possible prejudice to the defendant. The judge had an absolute discretion and ample material concerning the manner in which the proceedings had been pursued. His refusal to dispense with service therefore disclosed no real prospect of a successful appeal. The Court of Appeal also noted that no application had been made for leave to serve outside the jurisdiction.
6. The court noted, but did not need to decide, that the established-place-of-business test under section 695 of the Companies Act 1985 presented a higher hurdle than the CPR 6.5 test. Lord Justice Brooke agreed with the judgment and considered it unnecessary to determine definitively the proposed extension of time, which raised difficult issues including loss of an accrued limitation defence.

1. Court of Appeal (Civil Division) On 9 December 2003, Evans-Lombe J dismissed the applications for permission to appeal. Brooke LJ agreed.
2. Queen’s Bench Division Mr Justice Gray’s judgment of 26 March 2003 held that the first defendant had not been properly served within the jurisdiction. His judgment of 11 June 2003 refused retrospective dispensation with service, struck out the claim and ordered costs.