Murrills v Berlanda & Anor

For service of a claim form within the jurisdiction under the Civil Procedure Rules 1998, an individual is served at their usual or last known residence. The alternative place-of-business method applies only where the individual is sued in a business name distinct from their personal name. It does not apply merely because the defendant practises a business or worked in another person’s business. Where the claimant knows that the defendant lives and works abroad, and has no relevant residential or current business address in England, service must follow the rules for service out of the jurisdiction, including CPR 6.41 and the applicable Service Regulation. An order extending time for particulars or other documents does not impliedly authorise an otherwise invalid mode or place of serving the claim form. The mere fact that a defendant is temporarily outside the jurisdiction does not itself invalidate otherwise proper service.

The appellant brought clinical negligence proceedings against Dr Berlanda and the Belvedere Medical Group Ltd. The claim form was issued shortly before expiry of the limitation period and was sent to an address in Kent where Dr Berlanda no longer worked or resided. He was resident and practising in Italy.

The High Court, HHJ Denyer QC, struck out the claim against Dr Berlanda on the ground that the claim form had not been validly served. The appellant appealed, arguing that service at the Kent address was valid and that procedural orders made in June and November 2012 authorised the steps taken. The central issue was whether the claim form had been served in accordance with the applicable service rules.

The Court of Appeal unanimously dismissed the appeal. Sir Stanley Burnton gave the reasons, with which Lord Justice Beatson and Lord Justice Kitchin agreed.

1. Under CPR 6.9, the relevant distinction was between an individual and an individual being sued in the name of a business. Dr Berlanda was sued in his personal name. A person practising medicine may carry on a business, but the alternative place-of-business limb does not apply where the person is sued in their own name. It also does not apply merely because the person worked as an employee in another person’s business. CPR PD 7A.5C confirmed that the provision concerns a business carried on in a name other than the individual’s own name.
2. The appellant’s solicitors had no residential address for Dr Berlanda within the jurisdiction. The evidence made clear that he resided in Italy and practised in Trento. They should therefore have proceeded under CPR 6.41 and the Council regulation (EC) No 1348/2000. The same conclusion followed even if Dr Berlanda were treated as an individual being sued in the name of a business: the solicitors knew that he no longer worked at the Kent address and knew his current place of business was in Italy. Service at the Kent address was invalid.
3. The June order permitting service of the claim form without accompanying documents did not specify the place or mode of service. It could not be treated as impliedly authorising service at the Kent address. Any such authorisation would have to be express. The later order permitting service of the Particulars of Claim and other documents did not cure the failure to serve the claim form validly.
4. A claimant issuing proceedings close to expiry of limitation must pursue the claim expeditiously. The delays and failure to take the obvious steps for service in Italy provided no justification for an extension of time. The court also distinguished City & Country Properties Ltd v Kamali [2006] EWCA Civ 1879; [2007] 1 WLR 1219. The mere fact that a defendant is outside the jurisdiction when service is attempted does not, by itself, invalidate otherwise proper service.

The High Court’s strike-out order therefore stood. The Respondent’s notice required no determination.

1. Court of Appeal (Civil Division) dismissed the appeal unanimously and upheld the strike-out of the claim against Dr Berlanda.
2. High Court of Justice, Queen’s Bench Division, HHJ Denyer QC, struck out the claim by order dated 11 February 2013, amended on 11 June 2013, because the claim form had not been validly served.