Law Report: Forwarded summons validly served: Rolph v Zolan. Court of Appeal (Lord Justice Dillon and Lord Justice Butler-Sloss), 30 April 1993

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A county court summons which had been posted to a defendant's last known address in England and had then been forwarded by a friend to the defendant's new home in Spain was validly served under the County Court Rules 1981.

The Court of Appeal dismissed an appeal by the defendant, Simon Zolan, and allowed a cross-appeal by the plaintiff, Michael David Rolph, against a judgment of Judge Aron Owen on 17 September 1992.

Andrew Miller (Carpenter & Co, Wallington) for the defendant; Mark Dencer (Hyde Mahon Bridges, for Gareth Woodfine & Partners, Bedford) for the plaintiff.

LORD JUSTICE DILLON said the plaintiff, a builder, claimed pounds 4,679.98 for work carried out on the London house of the defendant, a solicitor.

He issued a county court summons on 25 July 1991, shortly before the end of the six-year limitation period, and it was served at the defendant's house. But unbeknown to the plaintiff, the defendant had, in October 1986, emigrated to Spain to start a new career as a guitarist and flamenco dancer.

In September 1991, a friend of the defendant forwarded his mail to Spain. The defendant did nothing, no doubt deliberately. On the assumption that the summons had been duly served, the plaintiff won a default judgment and then obtained a charging order on the defendant's London house in respect of the judgment debt.

On the defendant's application, Deputy District Judge Southcombe set that judgment aside on 22 June 1992, on the ground that the summons had not been validly served.

On the plaintiff's appeal, Judge Aron Owen, on 17 September 1992, upheld the view that the summons had not been properly served but extended time for service until 25 November 1992, purportedly under Order 7, rule 20(3) of the 1981 Rules, and gave the defendant conditional leave to defend.

The plaintiff contended that no extension was needed because the summons was validly served during the four-month period of its validity.

Under Order 7, rule 20, a first application for the renewal of a summons which had not been served could not be made more than eight months after its date of issue, in this case 25 March 1992. Rule 20(3) gave a limited power to grant an extension for a period not exceeding 12 months, providing the application was not launched more than four months after the period of service would otherwise have expired. The judge therefore had no power under rule 20(3) to grant the extension time.

Under Order 10, rule 1 of the Rules of the Supreme Court, postal service of process in the High Court could only be effected on a defendant within the jurisdiction. That required his physical presence at the time of service.

The crucial question was whether a similar limitation should be read into Order 7, rules 1 and 10 of the County Court Rules 1981.

The present wording of those rules dated back to 1984. Before that, a differently worded provision provided for postal service by an officer of the court where a certificate for postal service had been given. Those provisions, with minor modifications, dated back to 1936. Presumably they had been dispensed with because in most cases the simple procedure of postal service under the Rules was accepted without challenge. Against that history, it was impossible by any process of mere construction to limit the scope of the present Order 7, rules 1 and 10 to service only on a defendant 'within the jurisdiction' by analogy to Order 10, rule 1 of the Rules of the Supreme Court. Postal service was a matter of specific rules and not a general principle of practice.

It was suggested that the court should limit the scope of Order 7, rules 1 and 10 in line with Order 10, rule 1 of the Rules of the Supreme Court, pursuant to section 76 of the County Courts Act 1984. But section 76 was directed to extending the county court's powers where the County Court Rules made no express provision and not to curtailing express provisions in those rules.

Accordingly, his Lordship would hold that the summons was properly served under the County Court Rules, and the default judgment was regular. Since the defendant had actually received the summons, albeit in Spain, before it ceased to be valid for service, there was no basis for the judge to treat it as not having been served.