Clarke And Another v Vedel And Another [1978]
- Reported: [1978] 26 RTR
- Year: 1978
FACTS:-
The Claimants, Mr and Mrs Clarke were seriously injured in a road traffic accident on the 9th February 1973 when they were run down by a motorcyclist, who gave his name as David Vedel, his date of birth and an address in Lavender Hill. He was interviewed by the police but he never produced his insurance documents. Further enquiries showed that there was no entry in the register of births of the name “David Vedel” during the period covering the date of birth given by the motorcyclist, no such person was known at the address that he gave and he was untraced. The motorcycle had been stolen in December 1972 and the owner’s insurers, the Sun Alliance and London Insurance Group repudiated liability.
On the 5th January 1976 the Claimants commenced separate actions against David Vedel for personal injuries resulting from his negligent driving. These actions were later consolidated. As the Claimants were unable to effect personal service of the proceedings, the Claimants obtained an order under RSC, Ord. 65, Rule 4 for substituted service (now alternative service under the Civil Procedure Rules) at the offices of the Motor Insurers Bureau. They applied to be joined into the action as Second Defendants. On appeal the order was set aside by Justice Jupp but the Claimants were given leave to appeal, upon the Motor Insurers Bureau undertaking to take no point that any application made by either Claimant under the Untraced Drivers Agreement was not made in time. The Claimants appealed.
HELD:-
Lord Justice Stephenson went over the facts of the case and the history of the litigation. The solicitor acting for the insurers concerned, Sun Alliance and London had said in an affidavit that if an order for substituted service was made and the Claimants obtained judgment, the MIB would be liable to satisfy the judgment under the 1972 Uninsured Drivers Agreement. However under the terms of a domestic agreement dated 30th June 1948 between the MIB and various motor insurers, the Sun Alliance and London would be liable to satisfy that judgment.
If the order for substituted service could not be made in the circumstances of this case, the Claimant’s claim would fall to be dealt with under the Untraced Drivers’ Agreement.
Stephenson LJ examined the Rules of the Supreme Court, Order 10, Rule 1 which provided:-
“Subject to the provisions of any Act and these rules, a writ must be served personally on each Defendant by the plaintiff or his agent.”
However an exception to that rule was where an order for substituted service was made.
The object and effect of substituted service was set out in a note to the rules at Order 65, Rule 4 in the Supreme Court Practice 1976.
“The object of all service was, of course, only to give notice to the party on whom it was made, so that he might be aware of, and able to resist, that which was sought against him, and where that had been done, so that the court might feel perfectly confident that service had reached him, everything had been done that could be required.”
In Porter v Freudenberg [1915] 1 KB 857 the court had said that in order that substituted service might be permitted, it had to be clearly shown that the Claimant was in fact unable to effect personal service and that the proceedings were likely to reach the Defendant or come to his knowledge. However the note in the Supreme Court Practice also said that substituted service could be allowed on the defendant at his insurers or on the MIB.
It was plain that there was no reason to suppose that service of these proceedings would ever come to the knowledge of the Defendant, David Vedel wherever he was and whatever his real name might be. Therefore there should have been no order for substituted service in this case.
The Claimant’s counsel referred to two authorities, the first was Murfin v Ashbridge [1941] 1 All ER 231 and the second was Gurtner v Circuit [1968] 2 QB 587.
In Murfin the insurers had entered a conditional appearance for the insured, an untraceable driver. The case was mainly about whether the insurers had the right to enter an appearance, but Goddard LJ had made a tentative statement to the effect that it might be proper to order substituted service on a defendant by serving his insurers. Stephenson LJ said that Goddard LJ had not wished to formulate any general rule by making that statement.
In Gurtner, the Defendant was untraceable but his name and identity were known. He had produced his insurance to the police, but they had not noted down the identity of the insurers. The Defendant left for Canada. The Motor Insurers Bureau asked the Royal Insurance Company to act for them and an order for substituted service was made upon that company.
When the matter came before the Court of Appeal, the main issue was the question of whether the Motor Insurers Bureau should be added as a Defendant, to which the court answered that it should be so added. The Court of Appeal also decided that the order for substituted service on the Royal Insurance Company was improper. However the court gave reasons for not setting aside that order.
Lord Denning said that once the Motor Insurers Bureau was added as Defendants, they would be in a position to urge that the order for substituted service was not properly made. In this case that order was not properly made because the affidavit in support was insufficient. It did not show that the proceedings were likely to reach the Defendant nor come to his knowledge. All it said was that if the proceedings were to be sent to the Royal Insurance Company, it would reach the Motor Insurers Bureau. The Bureau were not Defendants at that time. It would be different if the Defendant was insured with the Royal Insurance Company. If there were any possibility of tracing the Defendant to Canada, substituted service should be ordered by advertisement and so forth.
However that seemed to be a pointless procedure. The practical course was to allow the order for substituted service to stand without incurring any further costs and to allow the service to stand.
Lord Justice Diplock said in Gurtner that where there was strong prima facie evidence that the Defendant was insured but it was not possible to ascertain the identity of his insurers, an order for substituted service might be made upon the Defendant at the address of the Motor Insurers Bureau. Such an order should not be made except on evidence that all reasonable efforts had been made by the Claimant to trace the Defendant and effect personal service. Therefore it would only add to costs if the court set aside service in order that a further application might be made by the Claimant for substituted service on the Bureau. The main anxiety of the counsel for the Bureau was that the impression should be given that Claimants need no longer search diligently for Defendants before applying for an order for substituted service.
Stephenson LJ said that he did find some difficulty in reconciling the general rule that substituted service should only be ordered where there was a probability that it would bring the document served to the notice of the Defendant, with some of the observations of Lord Denning and Lord Justice Diplock in Gurtner. However the court recognised that that might be cases where a Defendant who could not be traced, could nevertheless be ordered to be served at the address of insurers or the Motor Insurers Bureau. This did create a special position which enabled a Claimant to avoid the strictness of the general rule. However Stephenson LJ was not satisfied that this exception was so wide as to apply in this case.
The distinguishing feature of this case was that it made a difference not only to the Claimant, but also to the Bureau whether the rule was applied or whether the case was treated as exceptional. The Bureau were entitled to say that this was a case properly dealt with under the Untraced Drivers Agreement.
Therefore this was an Untraced Drivers Case, where on the face of it, substituted service under the rule is not permissible and the affidavit supporting the application for it was insufficient. The fictitious Defendant could not be served.
Lord Justice Roskill agreed with Stephenson LJ. He did not believe that the court in Gurtner intended to lay down such an exception to the general rule in relation to substituted service. The note to the Supreme Court Practice was too widely stated if it was intended to suggest that it was proper in every case where the Motor Insurers Bureau was involved to make an order for substituted service on the intended Defendants at the offices of the Bureau.
The present order for substituted service could not possibly bring these proceedings to the notice of Mr Vedel. The court in Gurtner was primarily concerned with the issue of adding the Motor Insurers Bureau to the action. The judgment of Diplock LJ was clearly directed to the facts of that particular case and was not to be treated as of general application.
The appeal would be dismissed.
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