Summary of Judgment of Master Harvey in Bradley v Rodgers and others T/A RGS Properties

In a decision delivered on 16^th December 2022, Master Harvey considered three Applications in a claim in which issues arose regarding service of the Plaintiffs’ Writ of Summons, namely:-

• The Plaintiff’s Application under Order 2 Rule 1 RCJ (NI) 1980 seeking an order that the proceedings were validly served on the Defendants or, in the alternative, an Application under Order 6 Rule 7 to extend the validity of the Writ;
• An Application by the 2^nd Defendant under Order 12 Rule 8 setting aside the Writ of Summons/declaring that the Writ was not properly served or an Order under Order 2 Rule 2 declaring the Writ was void by reason of various irregularities; and,
• An Application by the Third Defendant under Order 12 rule 8 of the 1980 Rules declaring the Writ was not validly served.

Background

A pre-action letter was served on the proposed Defendants on 3^rd April 2020, however, authority to accept service of proceedings by the relevant Solicitors was never confirmed. The Writ of Summons was issued on 5^th May 2020 and was, under the Rules, required to be served by 4^th May 2021. The Writ was hand delivered to the Solicitors for the Second Defendant on 30^th April 2021, posted and emailed to the Solicitors for the Third Defendant on 30^th April 2021 and posted to the unrepresented First Defendant on 30^th April 2021. The Solicitors for the Second Defendant and Third Defendants replied to say they did not have authority to accept service and returned the Writ. The unrepresented Defendant did not respond.

Legal principles

Master Harvey highlighted the important authorities when assessing the Applications before him.

Curing the irregularities: Order 2 Rule 1

In O’Shea v Southern Health and Social Care Trust & another [2014] Lexis Citation 2088 it was held that the Court could exercise its discretion in order to correct a service irregularity where the existence of the proceedings is known to the Defendant and the Defendant had not demonstrated any prejudice. An important consideration in that case was whether the Defendant was denied a limitation defence. It was found there was no real prejudice, but merely a lost opportunity to argue the Plaintiff failed to comply with the rules.

Master Harvey referred to the Supreme Court Practice (White Book) (1999 Edition), which states:- “The Plaintiff should not be allowed to enter through the back door of O.2 r.1 where he could not properly enter through the front door of O.6, r.8.” (the pre 1999 English equivalent of Order 6 Rule 7).

In Leal v Dunlop Bio Processors Ltd [1984] 2 All ER 207, it was held that Order 2 rule 1 was drafted sufficiently widely to give the Court the jurisdiction to cure irregular service of a Writ, the validity of which had expired before the purported service, but that it would be an improper exercise of discretion under that rule to make good the irregular service retrospectively where the Writ could not properly have been renewed our Order 6 rule 7 of the 1980 Rules.

The White Book (1999 edition), at 2/1/3 states:- “defective service of proceedings, however gross the defect and even a total failure to serve where the existence of the proceedings is nevertheless known to the defendant, is an irregularity which can be cured by the court by the exercise of discretion under Order 2 Rule 1.”

In Holden (Personal Representative of Bowden (Deceased)) v Whiterock Health Centre [2011] Lexis Citation 2248, Master McCorry had stated that Order 2 Rule 1 should be applied liberally in order, so far as is reasonable and proper, to prevent injustice being caused to one party by mindless adherence to the technicalities in the rules of procedure. Defective service of proceedings and even total failure to serve where the existence of the proceedings is nevertheless known to the defendant, is an irregularity which can be cured by the Court by the exercise of its discretion under Order 2 Rule 1. However, the White Book also provides a comprehensive code for the renewal of a Writ and, therefore, an irregularity in procedure caused by failure to renew a Writ is such a fundamental defect that the wide powers of the Court under Order 2 Rules 1 & 2 ought not to be exercised by treating a Writ which is invalid for service as though it had been renewed and is therefore valid for service.

The Court considered the issue of extending the validity of the Writ under Order 6 rule 7 of the RCJ (NI) 1980:-

The Supreme Court Practice (1999 edition), at 6/8/6 states that the Plaintiff:-“…should not dally for the period of its validity; if he does so and gets into difficulties as a result, he will get scant sympathy.” The Supreme Court Practice (1999 edition), lists some examples of good reasons include difficulty finding or serving the Defendant, the Defendant evading service or an agreement with Defendant to defer service. Examples of bad reasons are that negotiations are ongoing with no agreement to defer, difficulty tracing witnesses or obtaining evidence or carelessness.

In Kleinwort Benson Ltd v Barbrak Ltd (The Myrto) [1987] 2 WLR 1053 the Court concluded that where the Application is made at a time when the Writ is no longer valid and limitation has expired, the Plaintiff must show good reason and a satisfactory explanation for failure to apply for extension before the validity of the writ expired. The later the Application is made under Order 6 rule 7, the better the reason must be.

Finally, Master Harvey cited his obligation to consider the Overriding Objective under Order 1 Rule 1A of the Rules of the Court of Judicature (NI) 1980.

Conclusion

The Court found that the Plaintiff Solicitor had a number of options:-

1. An Application to extend the validity of the Writ before it expired under Order 6 rule 7 of the 1980 Rules. In accordance with the relevant authorities, this would have required a good reason to be demonstrated to the Court;
2. To serve the Writ and thereafter seek, either from the Court or agreement between the parties, additional time within which to serve a Statement of Claim; and,
3. To seek to amend the Writ to cure the ill, such as the address for service or to apply for substituted service if genuine issues arose.

The Master held:-

• That none of the above reasonable steps were taken. Nothing in the correspondence indicated the Defendants had authority to accept service of proceedings;
• Neither Defendant was “lying in wait for a slip up.” The onus was on the Plaintiff to serve the Writ, not for the Defendants to “keep them right.” He rejected the assertion that the Plaintiff’s Solicitor had genuinely formed the view that both firms did have authority to accept service;
• Hand delivery to a Solicitor firm, without prior agreement or indication of authority to accept service, is not valid service. Email service was also not effective without prior agreement;
• There was no good reason to delay service of the Writ or for the Court to extend its validity. If the motivation for the investigations into the business relationship between Defendants was borne out of caution, the priority should instead have been to protect their clients’ interests and serve the Writ in a timely manner properly. It was a classic case of “dilly dallying”;
• As the Plaintiff has not overcome the first hurdle of demonstrating a good reason for the delay, the balance of hardship was not considered. On the issue of prejudice to the parties and bearing in mind the Overriding Objective, the Master also noted the potential prejudice to the defendant of losing an accrued limitation defence and concluded that the Plaintiffs can either pursue the remaining (First) Defendant or pursue a claim against their Solicitor; and,
• Only in exceptional circumstances should irregularities be cured or deemed good by exercise of the Court’s discretion The Master dismissed the Plaintiffs’ Applications and granted the Defendants’ Applications together with costs against the Plaintiffs.

Interestingly, the Master highlighted that Counsel for the Plaintiff “rather dramatically” claimed that if the Court “rules against me it will cast a dark cloud over how defendants deal with these matters.” In the Master’s opinion, “this judgment will not cast a dark cloud but rather should shine a bright light on the steps which should be taken by Plaintiffs to effect service of proceedings and follow the disciplinary framework established by the rules of the Court which are designed to ensure the fair and proper conduct of litigation”.

If you would like any further information or advice, please contact Laura McKee from the Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.