Wednesday Law Report: Order for substitute service granted

10 February 1999

Abbey National plc v Frost (formerly practising as Harold Weston Frost & Co) (Solicitors Indemnity Fund intervening)

Court of Appeal (Lord Justice Nourse, Lord Justice Henry and Lord Justice Robert Walker) 4 February 1999

IN AN action for negligence against a solicitor an order for substituted service under RSC Order 65, rule 4 might be made on the Solicitors Indemnity Fund if the solicitor's whereabouts were unknown, and there was no likelihood that the writ would reach him or come to his knowledge.

The defendant was a solicitor in sole practice who had acted for the plaintiff building society and its borrower in relation to a loan secured on a leasehold flat. The purchase was in truth a sub-purchase, and in October 1992, the borrower having defaulted in making the mortgage payments, the plaintiff resold the flat for less than half the amount of the loan.

The plaintiff commenced proceedings against the defendant, alleging negligence and breach of fiduciary duty. The defendant had by that time been struck off the roll of solicitors for conduct unconnected with the plaintiff's claim. Apart from a belief that the defendant was living in Thailand, nothing was known about his current whereabouts. The plaintiff was granted an order for substituted service pursuant to RSC Order 65, rule 4 on the Solicitors Indemnity Fund (SIF).

The SIF's application to have the order for substituted service set aside was refused by the master, and the SIF appealed to the judge, relying on Porter v Freudenberg [1915] 1 KB 857 as establishing a general rule that substituted service would not be ordered where the defendant's whereabouts were unknown and where there was no likelihood that the writ would reach him or come to his knowledge. The judge allowed the appeal, and the plaintiff appealed.

Rupert Jackson QC and Andrew Goodman (Curtis & Parkinson, Nottingham) for the plaintiff; Richard Seymour QC and Matthew Jackson (Wansbroughs Willey Hargrave) for the SIF.

Lord Justice Nourse said that at the time that Porter v Freudenberg was decided, an order for substituted service could only be made under the rules then in force if the plaintiff was unable, from any cause, to effect prompt personal service.

By way of supplement to the rules, the King's Bench masters had settled and adopted a number of principles according to which their discretion would usually be exercised, one of which was that substituted service should not generally be ordered if the writ was not likely to reach the defendant or come to his knowledge.

In the circumstances of Porter v Freudenberg it was natural for the court to have expressed itself in the form of a general rule: however, expressions of opinion, no matter how eminent their source, should always be read in the light of the particular facts which occasioned them. The views expressed in that case could not be treated as having narrowed the discretion under what was now Order 65, rule 4(1) in relation to other facts.

Furthermore, under the rule in force in 1915, the court's discretion to make such order as might seem just arose after the precondition that the plaintiff should have been unable to effect prompt personal service had been fulfilled: the second precondition derived only from a principle of discretion adopted by the masters, and it would have been incorrect to treat it as incorporated in the rule itself.

In the present case, the master had been correct in holding that, given that the purpose of the SIF was to safeguard the lay public and to protect the interests of members of the public resorting to solicitors, it was perfectly proper in suitable cases for an order for substituted service to be made on the SIF. A case was not rendered unsuitable for substituted service simply because the defendant solicitor's whereabouts were unknown and there was no likelihood that the writ would reach him or come to his knowledge.

Have you tried new the Independent Digital Edition iPad app?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

SharePoint Administrator/Developer (C#, VB.NET, VISUAL STUDIO 2

£35000 - £50000 per annum + benefits+bonus+package: Harrington Starr: SharePoi...

European HR Director, London

£80000 - £95000 per annum: Charter Selection: A leading Global organisation Ja...

European Senior HR Manager, London

£80000 - £90000 per annum: Charter Selection: A leading Global organisation is...

Day In a Page

Ricky Gervais: 'People are waiting for me to fail. If you think it's awful, then just don't watch it'

Ricky Gervais: 'People are waiting for me to fail'

As the second series of his divisive sitcom 'Derek' hits screens, the comedian tells James Rampton why he'll never bow to the critics who habitually circle his work
Mad Men series 7, TV review: The suits are still sharp, but Don Draper has lost his edge

Mad Men returns for a final fling

The suits are still sharp, but Don Draper has lost his edge
Google finds a lift into space will never get off the ground as there is no material strong enough for a cable from Earth into orbit

Google finds a lift into space will never get off the ground

Technology giant’s scientists say there is no material strong enough for a cable from Earth into orbit
Westminster is awash with tales of young men being sexually harassed - but it's far from being just a problem in politics

Is sexual harassment a fact of gay life?

Westminster is awash with tales of young men being sexually harassed - but it's far from being just a problem in politics
Moshi Monster creator Michael Acton Smith: The man behind a British success story

Moshi Monster creator Michael Acton Smith

Acton Smith launched a world of virtual creatures who took the real world by storm
Kim Jong-un's haircut: The Independent heads to Ealing to try out the dictator's do

Our journalist tries out Kim Jong-un's haircut

The North Korean embassy in London complained when M&M Hair Academy used Kim Jong-un's image in the window. Curious, Guy Pewsey heads to the hair salon and surrenders to the clippers
A History of the First World War in 100 moments: A forgotten naval victory in which even Nature played a part

A History of the First World War in 100 moments

A forgotten naval victory in which even Nature played a part
Vespa rides on with launch of Primavera: Iconic Italian scooter still revving up millions of sales

Vespa rides on with launch of the Primavera

The Vespa has been a style icon since the 1950s and the release this month of its latest model confirms it has lost little of its lustre
Record Store Day: Independent music shops can offer a tempting alternative to downloads

Record Store Day celebrates independent music shops

This Saturday sees a host of events around the country to champion the sellers of well-grooved wax
Taunton's policy of putting philosophy at heart of its curriculum is one of secrets of its success

Education: Secret of Taunton's success

Taunton School, in Somerset, is one of the country's leading independent schools, says Richard Garner
10 best smartphones

10 best smartphones

With a number of new smartphones on the market, we round up the best around, including some more established models
Mickey Arthur: Aussie tells ECB to stick with Ashley Giles

Mickey Arthur: Aussie tells ECB to stick with Ashley Giles

The former Australia coach on why England must keep to Plan A, about his shock at their collapse Down Under, why he sent players home from India and the agonies of losing his job
Homelessness: Why is the supported lodgings lifeline under threat?

Why is the supported lodgings lifeline under threat?

Zubairi Sentongo swapped poverty in Uganda for homelessness in Britain. But a YMCA scheme connected him with a couple offering warmth and shelter
A History of the First World War in 100 Moments: When the world’s biggest shed took over Regent’s Park

A History of the First World War in 100 Moments

When the world’s biggest shed took over Regent’s Park
The pain of IVF

The pain of IVF

As an Italian woman vows to keep the babies from someone else’s eggs, Julian Baggini ponders how the reality of childbirth is often messier than the natural ideal