ANOTHER MIS-SERVED CLAIM FORM: CLAIMANTS DO NOT PASS GO AND DO NOT GET TO THE BANK

June 3, 2015 · by · in Civil Procedure, Service of the claim form, Serving documents

There are a number of issues considered by Mr Justice Arnold in Chopra -v- Bank of Singapore [2015] EWHC 1549 (Ch).  However the claimants failed at the very first, and very familiar, hurdle – service of the claim form.

THE CASE

The action was against a bank. Proceedings were issued and served at the end of the four month period.

KEY POINTS

  • The claim form had been served at an address where the defendant did not, in fact, carry on business.
  • This was not an exceptional case and the court would not grant permission that service be dispensed with.

OBSERVATIONS

Common features of many of the cases relating to failed service are:

  • Leaving issue of proceedings until the end of the limitation period.
  • Thereafter leaving service of proceedings to the end of the four month period.
  • Failing to pay attention to the specific requirements of the rules.

(Take a look at many of the cases in the posts and articles set out below).

THE METHOD OF SERVICE IN THIS CASE.

Service of the Claim Form

  1. The Claim Form was issued on 20 June 2014 (more than six years after the first of the representations relied on). The Claimants made no attempt to serve it until right at the end of the four month period of its validity. Mr Rattan attempted to serve the Claim Form and Particulars of Claim on both IAPB and OCBC on 17 October 2014 in the following manner.
  2. Mr Rattan took two envelopes containing copies of the documents to The Rex Building, one marked for attention of OCBC and one marked for the attention of an entity Mr Rattan refers to as “BOS”. Mr Rattan defines this to mean “the private banking business of OCBC … re-named Bank of Singapore”. It therefore appears that the second envelope was addressed to “Bank of Singapore” and not to “Bank of Singapore Ltd”. This is supported by two matters mentioned below.
  3. Mr Rattan went to the reception area on the ground floor and asked for “BOS” and OCBC. He was told to go to the third floor. He went to the third floor and spoke to a receptionist who has been identified by the Defendants as Tina Sadler (then a temporary receptionist and now a permanent employee of OCBC). According to Mr Rattan, he said that he had documents to serve on OCBC and “BOS”, and Ms Sadler replied “that’s fine, I can take them”. Mr Rattan asked for a receipt on headed paper. Accordingly, Ms Sadler wrote the following on a sheet of OCBC headed paper:

“I have received two sets of documents from Mr V Rattan. [signature] 17.10.14 16:55pm”

The OCBC headed paper states that OCBC is incorporated in Singapore and regulated by the Monetary Authority of Singapore (“MAS”). It also states that OCBC is regulated by the FCA and PRA.

  1. Ms Sadler’s evidence is consistent with this account. She says that she does not recall Mr Rattan saying that the documents were for legal purposes, nor does Mr Rattan suggest that he did. Ms Sadler says that she handed both envelopes to OCBC London’s private banking team, which is consistent with the proposition that one was addressed to “Bank of Singapore”.
  2. In addition to hand delivering these two envelopes, Mr Rattan also posted two sets of the documents by the Royal Mail’s recorded delivery service on the same day. In this case, Mr Rattan expressly states that one was addressed to “Bank of Singapore”, while the other was addressed to OCBC.

The Defendants’ applications

On 18 November 2014 the Defendants issued and served an application notice seeking a declaration that IAPB had not been validly served and an order staying the claim against OCBC. It is worth noting that, between then and the hearing, the parties served no less than seven rounds of evidence. In paragraphs 34-36 of the first witness statement of Lucas Moore of the Defendants’ solicitors made on 18 November 2014 in support of the application, the Defendants contended that the Claimants had no claim against OCBC in any event. Nevertheless, at that stage no application was made to strike out the claim against OCBC. As I understand it, the Defendants were concerned lest such an application be treated as a submission to the jurisdiction. In the skeleton argument prepared by counsel for the Defendants for the hearing, it was again contended that the Claimants had no claim against OCBC in any event, but again no application to strike out was made. On the first day of the hearing, counsel for the Claimants sensibly accepted that an application by OCBC to strike out the claim against it without prejudice to the Defendants’ jurisdictional challenges would not amount to a submission to the jurisdiction. He did not suggest that the Claimants would be prejudiced if the application was heard at the same time as the jurisdictional challenges. Accordingly, the Defendants issued an application to strike out later the same day, and I heard argument on it.

THE JUDGMENT ON SERVICE OF THE CLAIM FORM

The judge found that the claim form had not been properly served.

The law

  1. CPR r. 6.9(2) row 7 enables a claim form to be served on a company or corporation other than one registered in England and Wales at “[a]ny place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction”. This provision is the successor to a series of earlier provisions going back to RSC Order IX r. 8. Although the general rule is that the CPR are a new procedural code, and thus cases decided under the RSC are no longer authoritative, it is common ground that in this area earlier authorities remain highly persuasive. These authorities establish the following principles.
  2. There is no requirement that the claim be connected to the activities or business carried on at the place in question: see Dicey, Morris and Collins,The Conflict of Laws (15th ed) at §11-117 and the cases cited in footnote 326, to which may be added Sea Assets Ltd v PT Garuda Indonesia [2001] BCC 294 at 299. The “place of business” must be a fixed and definite one: see Dicey at §11-118 and the cases cited in footnote 331. The activity must have been carried on for a sufficient time for it to be characterised as a business: see Dicey at §11-118. The business or activities done at the place do not need to be substantial as a proportion of the company’s business or activities, and a company may have a place of business even if the activities carried on there are incidental to the main objects of the company: see Aktiesselskabet Dampskib “Hercules” v Grand Trunk Pacific Railway Co [1912] 1 KB 222 and South India Shipping Corp Ltd v Export-Import Bank of Korea [1985] 1 WLR 585. Nor does the company need itself to own or lease the place of business: see Saccharin Corporation v Chemische Fabrik [1911] 2 KB 516.
  3. As the editors of Dicey point out at §11-119 (footnote omitted):

“… in practice a real problem will normally only arise where the corporation’s business is alleged to be carried on by a representative or agent, who is not an officer or employee of the corporation, and who may act as a representative or agent for other corporations in addition. Service may be effected on the representative or agent if the business is that of the corporation, and not solely the business of the representative or agent who acts for it in England. Where the representative or agent has power to make contracts on behalf of the foreign corporation and displays its name on his premises, there will be little difficulty in establishing that the place of business is that of the corporation”

  1. The leading authority on this question remains Adams v Cape Industries plc [1990] 1 Ch 433 at 530-531, in which the Court of Appeal held that the question whether the representative had been carrying on the foreign corporation’s business or had been doing no more than carrying on his own business would necessitate an investigation of the functions he had been performing and all aspects of the relationship between him and the corporation, including the following:

“(a) whether or not the fixed place of business from which the representative operated was originally acquired for the purpose of enabling him to act on behalf of the corporation; (b) whether the corporation had directly reimbursed him for (i) the cost of his accommodation at the fixed place of business; (ii) the cost of his staff; (c) what other contribution, if any, the overseas corporation made to the financing of the business carried on by the representative; (d) whether the representative was remunerated by reference to transactions, e.g. by commission, or by fixed regular payments or in some other way; (e) what degree of control the corporation exercised over the running of the business conducted by the representative; (f) whether the representative reserved part of his accommodation or part of his staff for conducting business related to the corporation; (g) whether the representative displayed the corporation’s name at his premises or on his stationery, and if so, whether he did so in such a way as to indicate that he was a representative of the corporation; (h) what business, if any, the representative transacted as principal exclusively on his own behalf; (i) whether the representative made contracts with customers or other third parties in the name of the corporation, or otherwise in such manner as to bind it; (j) if so, whether the representative required specific authority in advance before binding the corporation to contractual obligations.”

  1. In relation to factors (i) and (j), the Court held that it was wrong to say that the presence of the corporation could never be established unless the representative had authority to contract on behalf of the principal, but that the presence or absence of such authority was of great importance and was the principal test. See also Actavis Group hf v Eli Lilly and Company [2013] EWCA Civ 517, [2013] RPC 37 at [57].

Assessment

  1. The Claimants contend that, at the time of service of Claim Form, IAPB had a place where it carried on its activities, or a place of business, in England, namely OCBC London’s offices at The Rex Building. In support of this contention, counsel for the Claimants advanced three main submissions. The first was that, in reality, IAPB was carrying on a private banking business in the UK from OCBC London’s premises.
  2. In support of this submission, counsel for the Claimants relied in particular on evidence given by Gautam Krishna, who says that he was employed by OCBC London from November 2011 to January 2015 as “a Director of Bank of Singapore (‘BoS’)”. Mr Krishna goes on to say that he saw himself as an employee of “BoS”, that the impression given to clients was that they were dealing with “BoS” and that “BoS” had a presence in the UK at OCBC London’s offices in The Rex Building.
  3. The problem with this evidence is that Mr Krisha fails to distinguish between “Bank of Singapore” (i.e. OCBC London) and “Bank of Singapore Ltd” (i.e. IAPB). By way of illustration, Mr Krishna says in paragraph 7 of his witness statement that his position was stated on his business card and in his email signature to be “Director, Bank of Singapore” (which is not in dispute). As he acknowledges, however, his business card (and email standard text) also stated that “Bank of Singapore is the trading name of [OCBC’s] private banking business in the United Kingdom”. Mr Krishna goes on:

“The clear and deliberate message to clients was that I worked for BoS, and to all intents and purposes, it was BoS they were dealing with.”

If “BoS” is understood in the manner in which Mr Krishna himself defines the expression, that is to say, as meaning “Bank of Singapore”, this is entirely consistent with the Defendants’ case that the private banking business in the UK is carried on by OCBC London trading as Bank of Singapore.

  1. It is fair to say that, in other parts of his statement, Mr Krishna appears to be intending to refer to IAPB when he uses the expression “BoS”, even though he has defined “BoS” to mean “Bank of Singapore” and even though he does not explicitly refer to “Bank of Singapore Ltd” anywhere in his statement. For example, Mr Krishna says in paragraph 8:

“All contract notes to London customers were issued in the name of BoS, as was all the general correspondence. Monthly statements for London clients were produced in the name of BoS and sent directly from Singapore.”

Even if one reads “BoS” here as meaning “Bank of Singapore Ltd” (i.e. IAPB), however, these statements are again perfectly consistent with the Defendants’ case that OCBC London acts as a referral intermediary which introduces clients (including clients in England) to IAPB (in Singapore) and markets IAPB’s products and services to such clients.

  1. Elsewhere in his statement, Mr Krishna seems simply to conflate the two different corporate entities. Thus in paragraph 13 he says:

“Employees from BoS’s Singapore office, especially senior management, regularly use the BoS offices on the third floor of the Rex Building. The bond research team which sits in Singapore directly sends out research clients and bankers in the BoS office in London. The London employees follow and disseminate this research.”

“BoS’s Singapore office” is IAPB, while the “BoS” which has offices in The Rex Building is OCBC London.

  1. Even when Mr Krishna does attempt to distinguish between the two entities, the result is simply to confuse the position. Thus the passage in paragraph 13 quoted above is followed by this:

“Credit policies are set by BoS, and OCBC has no involvement in the setting of these. If a client needs a credit facility then BoS draws up the documentation and gives its approval. The BoS facility letter is then sent out directly to clients. From the clients’ point of view, they are dealing with BoS, in London. “

This appears to acknowledge that it is IAPB in Singapore which deals with credit, and not OCBC London. But in that case why should clients think that they are dealing with “BoS” (whatever that may mean in this context) in London?

  1. Two further points should be noted about Mr Krishna’s evidence. First, it is common ground that IAPB was involved in his recruitment. As the Defendants contend, this is unsurprising given that (i) IAPB would be indirectly paying for his employment by OCBC London under the costs plus 10% arrangement and (ii) Mr Krishna would be referring clients to IAPB.
  2. Secondly, on 5 December 2011 Mr Krishna signed a confirmation that he had received the “Summary of permitted and prohibited activities for OCBC Private Banking London” (see paragraph 53 above) and agreed to adhere to the contents. Mr Krishna suggests that he and his colleagues did not always adhere precisely to their instructions as to the way in which they answered the telephone (although the manner in which he says that they answered phone – “private banking” – does not assist the Claimants), but he does not suggest that they contravened their instructions in any other respect.
  3. For the reasons given above, I do not accept that the evidence establishes that IAPB is carrying on a private banking business in the UK. On the contrary, the evidence shows that the Defendants are extremely careful to ensure that IAPB does not carry on business in the UK, where it is not regulated by the FCA and PRA, and to ensure that business in the UK is carried on by OCBC London, which is regulated by the FCA and PRA.
  4. Counsel for the Claimants’ second main submission was that all the decisions with regard to IAPB’s private banking business were made in London. I can deal with this submission briefly. Again, the principal evidence relied on in support of it is Mr Krishna’s evidence, but this does not establish the proposition contended for. If anything, the tenor of Mr Krishna’s evidence is that the business is controlled from Singapore. Furthermore, the Defendants’ evidence is that this is indeed the case.
  5. Counsel for the Claimants’ third main submission was that OCBC London was a representative of IAPB which had authority to contract on behalf of IAPB notwithstanding the provisions of the agreement dated 27 October 2010 which state that it has no such authority. In support of this submission, he relied in particular on two matters. The first is that OCBC London does not hold any money or investments for clients, rather the clients’ accounts are with IAPB. This does not show that OCBC London has authority to contract on behalf of IAPB, however. On the contrary, it is perfectly consistent with the Defendants’ case that OCBC London acts solely as a referral intermediary for IAPB.
  6. The second matter he relied on is OCBC London’s use of the trading name Bank of Singapore. Again this does not show that OCBC London has authority to contract on behalf of IAPB, however. The trade mark position was not explored before me. But even if IAPB, rather than OCBC, owned the trade mark BANK OF SINGAPORE, the fact it licensed (or otherwise permitted) OCBC London to use the trade mark in the UK would not show that OCBC London had authority to contract on behalf of IAPB.
  7. Nor does either of these matters show that IAPB carries on its activities, or has a place of business, in England. Accordingly, I conclude that the Claim Form was not validly served on IAPB in accordance with CPR rule 6.9(2).

Issue 3: Should service of the Claim Form on IAPB be dispensed with?

  1. CPR rule 6.16 provides:

“(1) The court may dispense with service of a claim form in exceptional circumstances.

(2) An application for an order to dispense with service may be made at any time and –

(a) must be supported by evidence; and

(b) may be made without notice.”

  1. Counsel for the Claimants submitted in his skeleton argument that service of the Claim Form on IAPB should be dispensed with pursuant to this provision. He did not develop this contention in his oral submissions, but nor did he abandon it. I shall therefore deal with it briefly.
  2. Many of the earlier authorities on what is now rule 6.16 were reviewed by Sir Anthony Clarke MR (as he then was) in Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016 at [15]-[23]. It is clear from that review that the court’s power retrospectively to dispense with service of a claim form under this rule should only be exercised in truly exceptional cases. In my judgment this is not an exceptional case. The Claimants left it right to the end of the four month period to attempt service. Although they attempted to effect service in person, they were also serving Particulars of Claim which had been settled by counsel, and thus they will have had the opportunity of obtaining professional advice as to methods of service. The Claimants’ attempt at serving IAPB has not failed as a result of some mere technicality or oversight, but because of a failure by the Claimants to establish that the necessary pre-condition for service under rule 6.9(2) is satisfied. Retrospectively dispensing with service would enable the Claimants to avoid compliance with that rule, and thus enable the Claimants to establish jurisdiction of this Court over IAPB in circumstances not permitted by the CPR. Furthermore, it is not the case that the Claimants did not know where to find IAPB. Mr Rattan’s own evidence is that, when FLC defaulted on the bonds, his “first course of action” was to complain to two representatives of IAPB based in Hong Kong and Singapore respectively. (He also says that, on the advice of the Private Secretary to the President of the Republic of Singapore, he has complained to the MAS.) Accordingly, I decline to dispense with service of the Claim Form on IAPB.

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