CLAIMANT FAILS TO SERVE CLAIM FORM PROPERLY: NOT A PLACE WHERE THIS DEFENDANT CARRIED OUT BUSINESS: SERVING THE RIGHT ZEBRA AND THE RIGHT ADDRESS
Master McCloud once wrote that it was the months of April and May that led to a seasonal crop of claim form issues in the Masters’ corridor. However, as regular readers this blog will know the season is a very long one. We see another case of a claimant coming to grief on service issues in the judgment of Lord Justice Nugee in Hand Held Products, Inc & Anor v Zebra Technologies Europe Ltd & Anor [2022] EWHC 640 (Ch). The judge found that the address served was not an address at which the defendant carried out business. There is detailed consideration of both the facts relating to the activities carried out by the defendant company (as opposed to associated companies) and the relevant principles. Here we look at the findings in relation to the place of business. A subsequent post will look at the judgment in relation to the means of challenging service.
“…there is in my judgment nothing in any of the matters I have so far considered that would enable it to be fairly said that ZTC has or had a place of business at Bourne End, or carries on activities at Bourne End.”
THE CASE
The claimant and issued and served proceedings on the second defendant company. The first defendant was an English company, however the second defendant was registered in Delaware. The claimants asserted that service had taken place pursuant to CPR r.6.9(2) at an office in Bourne End on the basis that this was a place of business of the second defendant, or a place where it carried out its activities. The defendant denied it had been duly served. The defendant argued that this was an address used by an associated company the first defendant, an English company, but not by the second defendant. This argument was accepted by the judge.
THE LAW
CPR 6.9(2) allows a claimant to serve a limited company, not incorporated in England and Wales, at “any place of business” and/or “any place within the jurisdiction where the corporation carries on its activities”.
The judge stated:
- The burden of proof is on the claimant
- The test, ultimately, is “whether it can fairly be said that [the defendant’s] business has been transacted by the defendant at [the relevant address]
THE JUDGE’S FINDINGS
The judge went through the evidence in considerable detail and concluded that
“, there is in my judgment nothing in any of the matters I have so far considered that would enable it to be fairly said that ZTC has or had a place of business at Bourne End, or carries on activities at Bourne End.”
SOMEONE WORKING FROM PREMISES DOES NOT MAKE IT A PLACE OF BUSINESS
The premises were a place of business of an associated company. One of the employees of that company signed certificates of conformity, this was done on the defendant’s behalf. However this, in itself, did not make the premises a place of business of the defendant company.
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Ms Plater’s evidence is that Mr Belli is based at Bourne End and employed by ZTEL. She accepts that Mr Belli acted on ZTC’s behalf when signing the declarations of conformity. She explains that adding the location where he signed the declaration is in accordance with a format required by the European Commission which also satisfies the requirements of Turkish customs, but I do not think this is of any significance. Whether the place where the declarations were signed was added to the declarations or not, there is no dispute that they were in fact signed at Bourne End.
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I have set this out at some length, but the factual position seems to be relatively straightforward and can be summarised as follows: Mr Belli, an employee of ZTEL based at Bourne End, regularly signs there declarations of conformity on behalf of ZTC. It is a requirement of UK regulations that such declarations are signed by or on behalf of the manufacturer before it places the relevant products on the market, and that the importer (here ZTEL) keeps the declarations of conformity for 10 years.
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Does this amount to the carrying on of ZTC’s business at Bourne End? In my judgment it does not. It is ZTC as manufacturer which is obliged to sign the declarations of conformity but the reason it is doing so is so that its subsidiary ZTEL can sell the relevant products in the UK. That seems to me to be something done in support of ZTEL’s business not something done in the course of ZTC’s own business. The way I put it in my oral judgment was as follows:
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“The second limb [viz of CPR r 6.9(2) case 7], the “any place of business of the company” [limb] does, I think, require asking the Adams v Cape questions as to whether, ultimately, it can fairly be said that ZTC’s business has been transacted at or from Bourne End. I do not think that Mr Belli signing the certificates of conformity can fairly be said to be the transacting of ZTC’s business at or from Bourne End. It is the carrying out of a limited regulatory function on behalf of ZTC (but not by an employee of ZTC, by an employee of ZTEL) for the purposes of marketing in the UK products which are placed on the market by ZTEL. I do not think it can fairly be said that ZTC’s business is thereby being transacted from Bourne End.”
That I think adequately explains why I consider that the second limb of CPR r 6.9(2) case 7 is not satisfied by Mr Belli signing the declarations on behalf of ZTC at Bourne End.
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Mr St Ville also referred to the fact that Mr Belli will have had to retain both technical documentation and the declarations of conformity on ZTC’s behalf and would have done that at Bourne End. But I do not think this takes matters any further. Retaining documents does not seem to me to be fairly regarded as the carrying on of business; and in any event as I read the regulations there is an obligation on ZTEL as importer to retain the documentation (under reg 19), so the mere fact that Mr Belli is retaining them is not, or not solely, attributable to his doing so on behalf of ZTC.
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