Olaribiro v Shoyemi

A location order made in private proceedings should be discharged where it has not been served in accordance with the court’s express directions and the applicant’s solicitors have deliberately delayed service. The court may set aside the unserved order and any accompanying unserved directions, leaving the applicant free to make a fresh application. Where the court decides the matter on that narrow procedural basis, it need not determine wider factual questions concerning the appropriateness of the relief.

The respondent applied for the discharge of a location order and accompanying directions made on 29 August 2014 by Sir Gavyn Arthur, sitting as a Deputy High Court Judge. The order directed that service on the respondent and others was to be effected only by the Tipstaff, and that the copy supplied to the applicant was not to be used for service.

The applicant’s solicitors nevertheless sent the respondent a copy of the order, while asking the Tipstaff not to serve it until disclosure orders had been served. The order therefore remained formally unserved six weeks after it was made. The central issue was the appropriate response to that failure.

1. The respondent’s application was granted. The location order and any other orders made on 29 August 2014 which had not yet been served were discharged.
2. The court treated the failure to serve the location order in accordance with its express terms as decisive. The solicitors had been clearly informed that service was to be effected only by the Tipstaff, yet they sent the respondent a copy and requested that formal service be delayed.
3. The court adopted a narrow procedural basis for its decision. Although the respondent’s factual submissions and supporting documents raised questions about the appropriateness of the relief sought, those matters did not need to be determined.
4. The applicant or his solicitors remained entitled to seek further relief by making a fresh application.
5. A transcript was directed to be prepared urgently at public expense, placed on the court file, and supplied to the respondent for use in any future application.

Not stated in the judgment.