Rolph v Zolan: CA 1993

Postal service of County Court proceedings on an address within the jurisdiction could be good service notwithstanding that the defendant was physically outside the jurisdiction at the time of such service. Referring to RSC O10R1: ‘Thus it is expressly provided that postal service of process in the High Court can only be effected on a defendant within the jurisdiction. The words ‘within the jurisdiction’ refer to the physical presence of the defendant at the time of service not to where the writ is or the premises to which it is posted are: see Barclays Bank of Swaziland Ltd v Hahn . . per Lord Brightman. The crucial question is therefore whether a similar limitation has to be read into Ord. 7, r. 1 and 10 of the County Court Rules in order to limit postal service to service on defendants who at the time of actual or deemed service are physically within the jurisdiction. If such limitation does have to be read in, then it cannot help the plaintiff that Mr. Palmer, the defendant’s agent who collected the summons and any other mail from 13A, Sparsholt Road, was within the jurisdiction when he collected it, because the defendant himself was not within the jurisdiction at that time. There are of course separate provisions in R.S.C., Ord. 11 and Order 8 of the County Court Rules 1981 which provide for service of process out of the jurisdiction. They have no relevance to this case, since, although service on a defendant resident in Spain can be effected without leave of the court, the summons in this case does not satisfy the requirements of Order 8 as to the form of a summons to be served out of the jurisdiction under the European Convention. The receipt of the summons by the defendant in Spain cannot be regarded as constituting service in Spain under Order 8.’ and ‘Against that history of the rules, I find it impossible by any process of mere construction to limit the scope of the present Ord. 7, rules 1 and 10 to service only on a defendant ‘within the jurisdiction, by analogy to RSC, Order 10, rule 1 . . For my part, I regard the limitation in RSC, Ord. 10, r. 1, as interpreted in Barclays Bank of Swaziland Ltd. v. Hahn . . to postal service on defendants who are within the jurisdiction to the time of service as a very specific limitation, and not a general principle of practice in the High Court within the meaning of section 76 of the Act of 1984. Postal service itself is a matter of specific rules, and not a matter of general principles of practice.’

Dillon LJ
[1993] 1 WLR 1305
County Court Rules 1981 O7R20, RSC O10R1
England and Wales
Citing:
CitedBarclays Bank Swaziland Ltd v Hahn HL 1989
The House considered the validity of service of proceedings. Documents were served by means of ‘letterbox service’ when the defendant was en-route to this country but was not within the jurisdiction. Later that day he arrived within the jurisdiction . .

Cited by:
CitedFairmays (A Firm) v Palmer ChD 31-Jan-2006
The defendant appealed against a decision not to set aside a judgment obtained against him by default. Whilst he retained a property in England, he lived in Ethiopia. The claim was served at the address in England, but was redirected to another . .
CitedKamali v City and Country Properties Ltd CA 24-Jul-2006
The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.238295