UK: (Re)Insurance Weekly Update 39 - 2015

Last Updated: 9 November 2015
Article by Nigel Brook

Welcome to the thirty-ninth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015

This week's caselaw:

Tseitline v Mikhelson

The meaning of "personal service" of a claim form

http://www.bailii.org/ew/cases/EWHC/Comm/2015/3065.html

CPR r6.5 provides that a claim form can be served personally on an individual within the jurisdiction by "leaving it with that individual". However, the Rules provide no further guidance as to the interpretation of that provision.

In this case, two process servers approached the defendant one evening. The first held out an envelope (marked only with the printed name of the claimant's solicitors) containing the claim form and told him "I'm here to serve you papers as part of a High Court, a High Court claim". The defendant speaks little English. He took hold of one side of the envelope, but the process server held on to the other, and after the defendant's daughter spoke to him, the defendant released the envelope. The second process server subsequently placed the envelope underneath the defendant's arm, whilst telling him he was being served. The defendant then allowed the envelope to fall to the ground.

Phillips J held as follows:

(1) The House of Lords decision of Kenneth Allison Ltd v A.E. Limehouse & Co [1992] establishes that the process server must hand the relevant document to the person upon whom it has to be served. If the defendant refuses to accept it, the process server may tell him what the document contains and leave it with him or near him.

(2) A person can only "accept" the document if the nature of the document is readily apparent or known to the recipient or otherwise explained to him so that he can be taken to know its nature. If an unmarked envelope is given to a defendant without any explanation, he can regard it as junk mail.

(3) A document will be "left with" the defendant if the defendant has some degree of possession of it (even if the process server subsequently takes it away again).

(3) Where the defendant refuses to accept the claim form, the focus is on the knowledge of the recipient, not the process by which it is acquired. Whilst in most cases knowledge of the nature of the document will be found to have been imparted by a simple explanation, it is clear that it can be also readily be inferred from pre-existing knowledge, prior dealings or from conduct at the time of or after service.

Applying those principles to this case, the judge held that the first process server had not handed the claim form to the defendant, since he had not released the envelope.

By the time the second process server acted, it was clear that the defendant did not accept the document. However, the claim form had been "left with" him. On the facts, the judge found that the defendant's companions had translated what was said to him and so he thereby acquired knowledge of the nature of the document. He had therefore been personally served with the claim form.

Bank St Petersburg v Arkhangelsky

Disclosure and documents within a party's "control"/translation of expert reports

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2997.html

The defendants sought disclosure of documents which were not physically in the possession of the claimants but which were said to be under their control (pursuant to CPR r31.8). After analysing the relationship between three individuals and the claimant, Hildyard J concluded that, if the relationship was governed by English law, it would be analogous to an agent or nominee relationship. However, that did not entitle the defendants to disclosure of all documents relating to the claimant: "only to documentation relating to the course or conduct of the agency relationship". Furthermore, companies which were wholly owned by the three individuals were not thereby agents of the claimant: "they would be agents (or, perhaps more accurately, sub-agents) only if and to the extent that they undertook the agency role primarily assigned to the relevant named individual". In any event, except in exceptional circumstances (such as a one-man company), a shareholder does not "control" the company's documents, since the consent of the directors is required.

There would also be practical difficulties in enforcing a disclosure order in Russia. The judge therefore ordered the claimant to write to the three individuals explaining that the claimant required them to provide certain defined documents for the purpose of the proceedings.

A further issue in the case was whether the claimant's expert report should be translated into Russian for the benefit of one of the defendants whose English is very limited. This had become necessary once the defendants' lawyers had ceased to act for them. The claimant argued that it would be expensive and time consuming to translate the report, which was long and technical. Nevertheless, a translation was ordered, for reasons of fairness. The defendants were already at a disadvantage in not having legal representation and being unable to leave France to contest the matter: "Whilst I am not convinced that to deny them such opportunities would of itself result in a breach of any enforceable right, it seems to me that the balance plainly favours eliminating this potential source of apparent potential unfairness".

Jong v HSBC Private Bank

Whether permission to serve out should be given in a case involving multiple defendants

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1057.html

The claimant wished to sue a Monacan bank regarding certain trades placed on her behalf and also two English group companies which, she said, failed adequately to investigate her complaint. The case was governed by Regulation 44/2001 and two conflicting principles arose: (1) the Regulation provides that companies should be sued in their Member State but (2) the claimant had entered into an agreement with the Monacan bank which provided for exclusive jurisdiction in favour of the courts of Monaco (which is not a Member State) – although the claimant could otherwise rely on one of the gateways for service out against the bank. Accordingly, the court was required to decide which factor was more important: the need to avoid the risk of inconsistent judgments and the cost of parallel proceedings or the need to hold parties to their bargain.

At first instance, the judge held that the Monacan bank should be sued in Monaco. That decision has now been upheld by the Court of Appeal.

It held that the judge had not erred in ranking the defendants in order of importance and he had been correct to see the claim against the foreign bank as being the most important of the claims. The only guidance to be drawn from Donohue v Armco [2001] was that parallel proceedings should usually be avoided, but the facts of that case were very different from the facts of this case. Furthermore, had the chosen jurisdiction in the agreement been a Member State, that would have prevailed over the principle that defendants should be sued in their own Member State.

The Dorchester Group v Kier Construction

Whether the defendant had made an admission

http://www.bailii.org/ew/cases/EWHC/TCC/2015/3051.html

One of the issues in this case was whether the defendant had made an admission. CPR r14.1 provides that where a defendant makes an admission, the claimant has a right to enter judgment (and the permission of the court is required to withdraw an admission). The rule does not require an admission to be in any particular form, merely that it be in writing

The defendant had made an open offer which "accepted" the claimant's case for the purposes of the offer. That was not enough to amount to an admission under CPR r14.1, and the offer had made no reference to CPR r14.1 either. Furthermore, for judgment to be entered, the admission has to be clear and unequivocal, and that was not the case here. Accordingly, the claimant was not entitled to enter judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nigel Brook
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.