IN THE REIGATE COUNTY COURT Claim No.

1QT35822

The Law Courts

Hatchlands Road
Redhill
RH1 6BL

Monday, 29th October 2012

Before:

HIS HONOUR JUDGE REID

Between:

CHAUDHARI
Claimant
-v-

AKBARI
First Defendant
-and-

MESURIA
Second Defendant

______________________

For and on behalf of the Claimant: MS BERRY

(Sister)

Counsel for the First Defendant: MISS LAMBERTSON

Counsel for the Second Defendant: MR MACLEAN

______________________

JUDGMENT APPROVED BY THE COURT

Transcribed from the Official Tape Recording by

Apple Transcription Limited
Suite 104, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES
Telephone: 0845 604 5642 – Fax: 01706 870838

Number of Folios: 21
Number of Words: 1,506

Apple Transcription Limited 1495-2139-6/gh

0845 604 5642 v.3
 JUDGMENT
A
1. THE JUDGE: I have to deal with the question of whether or not the respective claim
forms were properly served on either of the defendants. The rules require service at
the last known address in the absence of being someone authorised to accept service.
In neither case was the claim form served at the last known place of residence. In one
B case it was served on solicitors who had no instructions to accept service. In the other
case it was served on an insurance company. Each of those parties then put the
claimant on notice that service had not been properly effected. Regrettably, she chose
to do nothing about it. Time for service has long since expired. In those
circumstances, the only proper course is to strike out these proceedings.

2. A point was taken that I should not deal with this matter because at an earlier stage the
C application had apparently been struck out by Deputy District Judge Ramsden. What
had happened so far as that was concerned was that nobody appeared before him and
no one communicated with the court. The reason for that was that the court had
inadvertently put the matter in Judge Ramsden’s list in mid August, but sent the parties
a hearing notice for early September. Quite rightly, when the matter came before the
district judge in September, the order made by Deputy District Judge Ramsden was set
D aside.

3. It was suggested by Ms Berry, who has been deputed to represent her sister today, that
the district judge had no legal power to do so because she is a judge of coordinate
jurisdiction to the deputy district judge. That is in error, she was not sitting on appeal
from the deputy district judge; she was exercising the power contained in the rules to
E set aside an order made in circumstances where the parties had not been given notice
of the hearing. It was suggested to me by Ms Berry that the deputy district judge had
dealt with the matter on paper because he had been asked to do so by one or more of
the defendants. That was palpably not the case and, incidentally, that was not what the
deputy district judge purported to do because he recited in his order the fact that he had
not had any communication from the parties.
F 4. It is extremely regrettable that the claimant, who may or may not have a good claim
against the defendants, failed to take proper legal advice and failed to act on the
information given to her when she was told that she had not served properly. I am
afraid that that really is fatal to her being allowed to proceed with this case.

5. I was concerned at one stage as to whether there might be an argument that there had
G been a waiver by one or both of the defendants of the irregularity of service. Counsel
suggested to me that there was no power to waive irregularity of service because the
rules as to service are mandatory in terms. I am quite satisfied that he is wrong in that.
If a party chooses to waive an irregularity as to service they are perfectly at liberty to
do so. It may be that there is no authority which sets that out, but that is because, as
Lord Blackburn observed in the case name which I forget, there are some propositions
H which are so obvious that they require no authority. However, I am satisfied that each
of the parties at the first available opportunity took the point and indeed those who
were improperly served tried to assist the claimant in telling her of her error.

6. A further point that was taken, albeit fleetingly, by Ms Berry was that the failure to
serve properly was in some respect the court’s fault, these proceedings having been

Apple Transcription Limited 1 1495-2139-6/gh

0845 604 5642
 issued on line. That is simply, I am afraid, nonsense. The court will serve by post at
A the address given to it by the claimant. The claimant chose to give the court wrong
addresses.

7. It follows that these applications succeed. These proceedings are holed below the
waterline and they should, therefore, be struck out. The fact that other interim
directions may have been made at some stage in Deputy District Judge Ramsden’s
B order which were set aside is neither here nor there. I, therefore, propose to strike
these proceedings out.

8. I have on this occasion heard Ms Berry on behalf of her sister. I am satisfied having
heard her at length that it is not in her sister’s interests that Ms Berry be allowed to
represent her at any further hearing. If the claimant is unfit to attend (and the letter
from the doctor of 6th September produced to me today does not suggest that, merely
C that she told him that it would be difficult for her in the light of her symptoms to
travel) then she would be very well advised in any further proceedings to obtain
professional legal representation. It was suggested by Ms Berry that her sister might
try to re-litigate these matters in the High Court. I cannot, of course, deal with that,
but no doubt she will be advised if she seeks proper legal advice that she may
encounter difficulties on account of limitation.
D
9. A separate point was raised on strike out relating to the failure to serve medical
evidence. I am told that medical evidence was attached to the amended particulars of
claim and that that may very well be satisfactory. In those circumstances it does not
seem to me that it would be appropriate for me to found any part of my judgment on
the failure to provide medical evidence with the particulars of claim, even though,
undoubtedly, there was a breach of the rules in so doing.
E
10. However, for the reasons that I have given each of these claims is struck out and I
think it follows necessarily from that that the defendants are entitled to their costs of
the proceedings. I will direct a detailed assessment of those costs if not agreed.

MR MACLEAN: Just one final point, your honour, if I may.

F
THE JUDGE: Yes.

MR MACLEAN: My learned friend and I were discussing outside, notwithstanding that

draft orders are attached to application, as to whether the appropriate order is strike out
or dismissal. We could not come to a fixed view as to what the appropriate order
would be. I accept, of course, that both applications sought strike out. However, it
G might be the case that if there has been non-service and a failure to correct that within
the four month currency of the claim form that dismissal is actually the procedurally
correct order, but I am really in your honour’s hands as to how that is phrased because
I have not formed a firm view.

THE JUDGE: Well, I am proposing to say “strike out”.

H
MR MACLEAN: I am grateful, your honour. There is then a second part of the order,
your honour, that the claimant pays the first defendant’s and second defendant’s costs
of the action to be assessed in detail if not agreed, or words to that effect.

Apple Transcription Limited 2 1495-2139-6/gh

0845 604 5642
 THE JUDGE: All right.
A
MS BERRY: Your honour, may I ask that you include in your judgment the fact that an
appeal by the claimant has not been dealt with?

THE JUDGE: I do not need to deal with that because the effect of my order will bring to an
end any outstanding interim applications and, as the notice of hearing indicated today,
B I was clearly only going to deal with the preliminary issue as to service and I do not
need to recite anything about that in the order.

MS BERRY: Will there be another hearing to deal with the appeal?

THE JUDGE: No.

C MS BERRY: Well, she has a right of appeal from the order of Judge Nightingale.

THE JUDGE: Since the proceedings are now at an end any interim appeals going with it
are, therefore, defunct because, apart from anything else, it would be entirely pointless.

MS BERRY: Your honour, the court cannot deny my sister her appeal.
D THE JUDGE: The court is not denying her appeal. The proceedings are at an end and with
it the appeals.

MS BERRY: The court has not dealt with the appeals, your honour.

[Court adjourns]
E

Apple Transcription Limited 3 1495-2139-6/gh

0845 604 5642