COURT REFUSES RETROSPECTIVE APPLICATION IN RELATION TO SERVICE OF INJUNCTION: THERE WAS NO GOOD REASON AND A PROSPECTIVE APPLICATION WOULD NOT HAVE BEEN GRANTED

We are now looking at the second aspect of the judgment of Mr Justice Nicklin in MBR Acres td & Ors v Maher & Anor [2022] EWHC 1123 (QB). This the claimants’ unsuccessful application for an order that there be a retrospective order authorising alternative service on the solicitors.  Further the court rejected an application that committal should take place because the defendant knew, in general terms, of the existence of the injunction.

 

THE CASE

 

The claimants had obtained certain injunctions preventing the defendants, and other parties, from entering a site.  The claimants did not serve the injunctions personally on two of the defendants, nor did they seek an order for alternative service.  They served on the defendants’ solicitors.   The claimants issued proceedings for contempt. The judge decided that service on the solicitors was not good service.   The judge then considered, and refused, the claimants’ application for an order retrospectively permitting service by service on the solicitors.

THE JUDGMENT ON THIS ISSUE
(J) Should the Court grant, retrospectively, the Claimants’ Application for alternative service permitting the Injunction to be served on Ms Laidlaw by service upon her solicitors?
    1. As noted above (see [33] above), the Claimants have issued an Application Notice seeking a retrospective order that service of the Injunction be permitted by alternative means and that service of the Injunction on Cohen Cramer “be deemed effective service” pursuant to CPR 6.15 and 6.27.
    1. CPR 6.15 provides the alternative service regime for service of the Claim Form. In turn, CPR 6.27 applies CPR 6.15 “to any document in the proceedings as it applies to a claim form and reference to the defendant in that rule is modified accordingly“. So far as material, CPR 6.15 contains the following:

“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the [document] to the attention of the defendant by an alternative method or at an alternative place is good service.”

    1. When the alternative service application is being made under sub-paragraph (2) to validate service relying upon steps already taken to bring the relevant document to the attention of the defendant, the Court must ask two questions:
i) Is there a ‘good reason’ to authorise the method of service not otherwise permitted by Part 6?; and
ii) Is the court satisfied that the steps taken did bring the document to the attention of the defendant?
    1. As to “good reason“, Ms Bolton referred to Abela -v- Baadarani [2013] 1 WLR 2043 [33]-[41]. Mr Underwood QC did not refer to any authorities. I can take the summary of the law applying to CPR 6.15 as it applies to service of the Claim Form from Piepenbrock -v- Associated Newspapers Ltd [2020] EWHC 1708 (QB) [53]:

“(1) The issue for the court to decide is whether the claimant has demonstrated a good reason to justify the making of the order. This is essentially a question of fact and it should not be necessary for the Court to spend undue time analysing previous cases which depend on their own facts Abela -v- Baadarani [33]-[35] per Lord Clarke.

(2) Generally, the main relevant factors are likely to be (a) whether the claimant has taken reasonable steps to effect service in accordance with the rules; (b) whether the defendant or his solicitor was aware of the contents of the Claim Form at the time when it expired; and (c) what if any prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the Claim Form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in itself. The weight to be attached to them will vary with all the circumstances: Barton -v- Wright Hassall LLP [2018] 1 WLR 1119 [10].

(3) It is not necessary for a claimant to show that he ‘left no stone unturned‘ in his/her efforts to serve the Claim Form: Barton [21].

(4) The mere fact that the defendant learned of the existence and content of the Claim Form cannot, without more, constitute a good reason to make an order under 6.15(2). However, the wording of the rule shows that this is a critical factor: Abela [36]. ‘It has never been enough that the defendant should be aware of the contents of the originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process‘: Barton [16].

(5) The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode: Barton [9(3)].

(6) The difficulties faced by litigants in person may be a basis for the Court making allowances in respect of case management decisions, but they will not usually justify applying to litigants in person a lower standard of compliance with rules of Court. It is reasonable to expect a litigant in person to familiarise him/herself with the rules that apply to any step s/he is about to take: Barton [18].

(7) Claimants who issue a Claim Form at the end of the limitation period, opt not to have it served by the Court, and then make no attempt to serve it themselves until the very end of its period of validity ‘can have only a very limited claim on the court’s indulgence‘ in any subsequent application under CPR 6.15(2): Barton [23].

(8) The CPR clearly stipulate the acceptable methods for serving the Claim Form. Absent some difficulty in using these methods, CPR 6.15(2) does not enable litigants to devise their own methods to effect service. It is necessary in the interests of certainty that the Court permits a litigant to depart from the prescribed methods of service only where a compelling case is made out to do so: Brown -v- Innovatorone [2009] EWHC 1376 (Comm) [44] per Andrew Smith J.”

    1. Not all those factors apply directly to service of documents other than the Claim Form. But in Piepenbrock, I also observed [65]:

“… It is illuminating to consider whether the Court would have granted the Claimant an order under CPR 6.15(1) had he applied [prospectively] for permission to serve the Claim Form on the Defendants by sending it: (a) to them by email; and/or (b) to their solicitors by email and/or post. It seems to me to be tolerably clear that such an application would have failed. There would be no reason – still less a good one – for the Court to validate a mode of service not prescribed by the rules… The circumstances in which a Court would permit service of a Claim Form upon solicitors under CPR 6.15(1), where a defendant had refused to nominate them for that purpose, would have to be compelling and would probably require evidence that it was practically impossible to serve the defendant by any other method. I cannot see how, if a claimant would not have been able to demonstrate a ‘good reason’ under CPR 6.15(1), s/he should be in any materially better position if his/her efforts validly to serve the Claim Form fail and he is forced to apply under CPR 6.15(2) to validate his invalid service…”

    1. I consider the same analysis should be employed here. Had the Claimants applied, on 10 November 2021, for an alternative service order permitting them to serve the Injunction on Ms Laidlaw by serving it on her solicitors, I am satisfied that the application would have been refused. Indeed, without evidence that an alternative service order was necessary, I would have made clear (if necessary, by inserting an express requirement into the order) that the Injunction had to be personally served on Ms Laidlaw. Of course, had the Claimants been candid about their plans for service of the Injunction (and their novel interpretation of requirements for service of an injunction order following the revised Part 81), the position they now find themselves in would probably have been avoided. But there was, and is, no evidence that Ms Laidlaw was evading service. On the contrary, the evidence demonstrates that she was regularly to be found at Camp Beagle, outside the Wyton Site, in the period immediately following the grant of the injunction (for example, see [40] above). Her unchallenged evidence was that she was well known to the Claimants as she stayed regularly at Camp Beagle. Service of the Injunction on the solicitors was simply expedient. The application for an alternative service order is now made to avoid the consequences of having wrongly interpreted the service requirements of an injunction order. That is not a ‘good reason’.
    1. I would also have refused the alternative service application on the grounds that the Claimants have failed to demonstrate, by evidence, that the Injunction had nevertheless come to the attention of Ms Laidlaw. Whereas with a prospective alternative service application under sub-paragraph (1), the Court has to make an assessment, on the evidence, of the likelihood that the proposed alternative service method can reasonably be expected to bring the relevant document to the attention of the defendant (see the authorities cited in [26(i)] above), with a retrospective application under sub-paragraph (2) the Court can assess the evidence and determine whether it has brought the relevant document to the attention of the defendant. I can scarcely think that it would be right to make an alternative service order retrospectively unless the Court was so satisfied. It is not a matter of “deeming” the order served on the relevant defendant. The question is whether it has come to the attention of the defendant or not.
    1. On this point, the standard of proof is the criminal standard: the evidence must make the Court sure. The evidence presented by the Claimants had not met this standard. The Claimants have not demonstrated to the required standard that Cohen Cramer provided a copy of the Injunction to Ms Laidlaw or even that she received a copy by some other means. Ms Bolton did not establish, by cross-examination or otherwise, that the solicitors had explained the terms of the injunction to Ms Laidlaw. The circumstantial evidence relied upon by the Claimants to attempt to demonstrate that Ms Laidlaw had received the Injunction Order is weak. The evidence relied upon in [40] above, is of statements made by Ms Laidlaw before the Injunction had been received by Cohen Cramer. These statements are also consistent with Ms Laidlaw’s evidence that she was generally aware – “from bits and pieces” – that an injunction had been imposed and that its “key provisions” were the imposition of an Exclusion Zone and restrictions on not stopping cars from entering or leaving the Exclusion Zone (see [42] above). Critically, however, it is clear from Ms Laidlaw’s evidence – and on this she was not challenged – that she erroneously thought (at the time of the acts alleged against her in the First Contempt Application) that the Exclusion Zone was to a width of 10 metres either side of the midpoint of the gate to the Wyton Site.
    1. My conclusion, on the evidence, is that Ms Laidlaw had not received a copy of the Injunction, and she had not read it, carefully or at all. She knew generally of the existence of the Injunction because she was a defendant to the proceedings and had attended the hearing, on 4 October 2021, when there had been discussion of the possible imposition of in Exclusion Zone and, naturally, it was a point of discussion amongst the protestors at Camp Beagle following the grant of the Injunction on 10 November 2021, a hearing she did not attend. I am not satisfied, to the required standard, that the Injunction (or its specific restrictions) came to the attention of Ms Laidlaw as a result of the Claimants’ solicitors serving it on Cohen Cramer.
    1. I therefore refuse the Claimants’ Application for an order, retrospectively, that service of the Injunction on Cohen Cramer is good service of the Injunction on Ms Laidlaw.
(K) In light of the evidence about Ms Laidlaw’s knowledge of the terms of the Injunction, the Court should dispense with the requirement that the Injunction be served upon her?
    1. The Court does have a wide discretion to dispense with defects in service of an injunction order. Ms Bolton submitted that the key question is whether injustice would be caused by so doing: Khawaja -v- Popat [2016] EWCA Civ 362 [40]. Ms Bolton also referred to the Court of Appeal decision in Davy International Ltd -v- Tazzyman [1997] 1 WLR 1256, 1262-1266 per Morritt LJ. Tazzyman is principally authority for the proposition that the power to dispense with service of an injunction order can be used retrospectively (including mandatory injunctions), but the decision contains a useful review of the authorities on when it would be just nevertheless to dispense with the requirement that an injunction order must be served. One category, which has been long recognised in respect of prohibitory injunctions, is where the Court is satisfied that the respondent knows of the terms of the injunction, for example because s/he was in Court when the injunction was granted (e.g. Turner -v- Turner referred to at 1262E and see cases discussed in [74] above). In Hill Samuel & Co Ltd -v- Littaur (referred to at 1264B), the Court of Appeal was satisfied that the defendant “knew precisely the terms of [the] order” and that it was just in the circumstances for the Judge to have dispensed with service of the injunction order.
    1. In my judgment the authorities show that the key question, if the Court is considering retrospectively dispensing the requirement to serve an injunction order, is whether the Court is satisfied, to the criminal standard, that the material terms of the injunction order said to have been breached were effectively communicated to the defendant. The cases show that it is possible to demonstrate this by evidence in several ways, but the objective is clear, as are the statements of principle from the ECtHR (see [94]-[96] above). What is required is knowledge of the specific terms of the order, not its general character (cf. Hall & Co -v- Trigg [1897] 2 Ch 219 referred to at [75] above and Churchman referred to at [86] above).
    1. Largely for the same reasons that I have set out above (see [113]), the evidence does not satisfy me so that I am sure that Ms Laidlaw had sufficient knowledge of the specific terms of the Injunction to justify dispensing with the ordinary requirement that she be served with the Injunction. On the contrary, and critically, the evidence demonstrates that Ms Laidlaw was, at the material time for the purposes of the First Contempt Application, mistaken about the width of the Exclusion Zone, which also affects the issue of whether she was approaching and/or obstructing vehicles that were directly entering or exiting that Zone.
  1. In consequence, I refuse to dispense with service of the Injunction on Ms Laidlaw.