Various defendants were served out of the jurisdiction but with the wrong copies of the writs, receiving a copy addressed to another defendant. One defendant received no writ at all, but only a form of acknowledgment of service.
Held: The court unanimously accepted that O.2. r.1 was to be given wide effect. The majority held that service, the step in the proceedings which had been attempted, was to be regarded as valid in the case of all defendants.
Lloyds LJ accepted that for the defendants served with the wrong copy writs, the court had a discretion: ‘The service was grossly defective. But service, or purported service, it remained.’ However, he would not have exercised that discretion in the claimant’s favour. As to the defendant served only with an acknowledgment of service, this was ‘an omission which is so serious that…[i]t cannot be described as a failure to comply with the requirements of the Rules by reason of something left undone . . The service of the form of acknowledgment cannot make up for the absence of the writ.’
Judges:
McCowan LJ and Sir John Megaw, Lloyd LJ dissenting
Citations:
[1990] 2 Lloyds Rep 210
Statutes:
Rules of the Supreme Court 2 r1
Jurisdiction:
England and Wales
Cited by:
Distinguished – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – Phillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 31 July 2022; Ref: scu.244632
