398 All England Law Reports [1989] 2 AIIER must be objectively determined upon the facts of the transaction by reference to the terms agreed.” Accordingly, I too agree that this appeal should be dismissed. Appeal dismissed. Leave to appeal to the House of Lords refused. Solicitors: Allen é Overy (for the taxpayer companies); Solicitor for the Customs and Excise. LI Zysman Esq Barrister. Barclays Bank of Swaziland Ltd v Hahn HOUSE OF LORDS LORD KEITH OF KINKEL, LORD BRIGHTMAN, LORD TEMPLEMAN, LORD GRIFFITHS AND LORD LOWRY 27 APRIL, 18 MAY 1989 Practice — Service — Service through letter box — Writ for service on defendant within jurisdiction — Defendant absent from jurisdiction when copy writ inserted through letter box — Defendant arriving within jurisdiction two hours later - Defendant learning that special messenger had delivered envelope to his flat - Defendant leaving country next day without picking up envelope — Whether defendant required to be within jurisdiction when service effected through letter box ~ RSC Ord 10,1 1(2)(b). Practice ~ Service ~ Service through letter box — Date of service ~ Deemed date of service - Writ — Writ served through letter box deemed to be served on seventh day after date on which letter inserted through letter box ‘unless the contrary is shown’ — Defendant absent from jurisdiction when copy writ inserted through letter box — Defendant arriving within jurisdiction two hours later - Defendant learning that special messenger had delivered envelope to his flat - Defendant leaving country next day without picking up envelope - Whether deemed date of service displaced =RSC Ord 10,7 1(3)(a). The plaintiff bank issued a writ within the jurisdiction against the defendant, a South African national, to recover moneys under a guarantee. The defendant had a flat in England where he stayed for three months of the year on average and the bank purported to effect service of the writ on him under RSC Ord 10, r 1(2))* by inserting it through the letter box of the flat. The defendant was out of the country at the time but two hours later he arrived at an airport in England where he was met by the caretaker of the flat, who informed him that a special messenger had called at the flat that afternoon and had put an envelope through the letter box. Instead of going to the flat as he had intended the defendant stayed at a nearby hotel. His wife went to the flat but did not open the envelope; she then joined her husband at the hotel. The defendant left the country the next day. The defendant contended that the writ had not been duly served on him because, in making provision for a‘writ for service on a defendant within the jurisdiction’ to be served by inserting it through a letter box in a sealed envelope, Ord ro, r 1(2)(b) was referring toa defendant who was within the jurisdiction and the defendant had not been physically present within the jurisdiction at the time the envelope was inserted through his letter box. The master held that service had not been properly effected and on appeal by the bank his decision was affirmed by the judge. The bank appealed to the Court of Appeal, which allowed its appeal, holding that Ord 10, r 1(2\b) did not require the presence of the defendant within the jurisdiction since the words ‘A writ for service on a @ Rule 1, so far as material, is set out at p 400 g to p 401 a, post i° HL Barclays Bank Ltd v Hahn (Lord Keith) 399 defendant within the jurisdiction’ were descriptive of the writ and its service and not of the defendant. The defendant appealed to the House of Lords. Held— On its true construction RSC Ord 10, r 1(2)(b) required the defendant to be physically preset within the jurisdiction athe dime service was effected by inserting it through a letter box in a sealed envelope, since ‘within the jurisdiction’ in r 1(2) referred to the defendant and not to the writ or its service. However, since under Ord 10, r 1(3)(a) the date of service effected under r 1(2) was the seventh day after the date on which the copy writ was inserted through the letter box ‘unless the contrary is shown’, a plaintiff or a defendant could displace the deemed date of service by proving thar the defendant had acquired knowledge of the writ at some other date. In the circumstances the bank had shown that the copy writ had come to the defendant's knowledge when he was within the jurisdiction, ie immediately after his arrival at the airport in England. If followed therefore that the writ had been properly served on him under Ord 10, r 1(2)() on that day. The appeal would therefore be dismissed (see p 399 h, p 402 c toe g toj and p 4c3 a tof, post). Decision of the Court of Appeal [1989] 1 All ER 193 affirmed on other grounds. Notes For service of proces by insertion through eter bor, se 37 Halburys Laws (then) para 152, and for cases on substituted service, see 37(2) Digest (Reissue) 263, 1711-1714. Appeal John Aneck Hahn appealed with the leave of the Appeal Committee of the House of Lords given on 16 January 1989 against the decision of the Court of Appeal (Fox, Parker and Croom-Johnson LJJ) ({1989] 1 All ER 193, [1989] 1 WLR 13) on 3 August 1988 allowing the appeal of the respondents, Barclays Bank of Swaziland Ltd (the bank), a company incorporated under the laws of Swaziland, against the order of Sir Neil Lawson sitting as a judge of the High Court in the Queen’s Bench Division in chambers on 28 January 1988 whereby he dismissed the appellant’s appeal from the order made by Deputy Master Ashton on 7 October 1987 declaring that a writ issued on 16 December 1986 by the bank against the appellant had not been duly served on the appellant and that therefore the court had no jurisdiction to hear the bank’s claim. The facts are set out in the opinion of Lord Brightman. Winston Roddick QC and Michael Soole for the appellant. Conrad Dehn QC and Michael Brindle for the bank. ‘Their Lordships took time for consideration. 18 May. The following opinions were delivered. LORD KEITH OF KINKEL. My Lords, I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Brightman. I agree with it, and for the reasons given by him would dismiss the appeal. LORD BRIGHTMAN. My Lords, the question before your Lordships is the validity of the service of a writ on the appellant, Mr Hahn. The mode of service adopted by the respondent bank’s solicitors was the insertion of the copy writ through the letter box of the appellant’s home at Amersham. At that particular moment it so happened that the appellant was outside the jurisdiction, though he came within the jurisdiction some two hours later. The appellant claims that such service was ineffective owing to his absence from the jurisdiction at the material time. The appellant is a national of the Republic of South Africa. He has, however, a home400 All England Law Reports [1989] 2 AIIER in England, consisting of a flat near Amersham in Buckinghamshire, which his wife has rented since 1985. Having been accepted by the Revenue as a non-resident for tax purposes, the appellant does not stay in England for more than six months in any tax ear; on average he is here for some three months in the year, although sometimes longer. The respondents, Barclays Bank of Swaziland Ltd, claim that in 1982 the appellant executed a deed guaranteeing the banking account of a company called Swaziland Chemical Industries (Pty) Ltd. That company went into liquidation in 1984 owing (itis b said) some {12m to the bank. The bank sought payment from the appellant and issued proceedings against him in South Africa. Those proceedings were abandoned owing to difficulties of service. On 16 December 1986 the bank issued a writ against the appellant in this country for recovery of the money. In January 1987 leave was obtained to serve the writ out of the jurisdiction but it did not prove possible to effect service. The bank then sought to serve the appellant in England. c RSC Ord 10, r 1, to which I will refer in detail later, enables a writ, instead of being served personally, in certain circumstances to be served by inserting through the letter box of the defendant's usual or last-known address a copy of the writ enclosed in a sealed envelope addressed to the defendant. On 14 April 1987 a person acting on behalf of the bank’s solicitors attended at the appellant’s home with an envelope containing a copy of the writ, The door was opened by Mr Symonds, the caretaker, who said that the appellant 7 was not there but might be arriving later in the day. The solicitors’ representative then put the envelope containing the copy writ through the letter box and left. This occurred at about 1530 hrs. ‘The appellant and his wife had left South Africa on 12 April en route for England and were due to arrive at Heathrow at about 1730 hrs on 14 April. Mr Symonds and his wife had already prepared the flat for occupation by them when the solicitors’ representative called. Shortly thereafter Mr Symonds drove to the airport to fetch the appellant and his wife. At the start of their journey home Mr Symonds told the appellant that a man had called at the flat that afternoon and put through the letter box an envelope addressed to him, which Mr Symonds stated he had not opened. On receiving this news the appellant instructed Mr Symonds to drive to the White Hart Hotel at Beaconsfield, where the car f dropped the appellant. The appellant's wife continued on to the flat, where she was shown the envelope. She then returned to the White Hart at about 1945 hrs, and both of them proceeded to the Holiday Inn near Heathrow for the night. The appellant left Heathrow the following day for Geneva, without having visited the flat then or at any later time in that year. ‘The terms of Ord 10, r 1, so far as material for present purposes, are as follows: ‘(1) A writ must be served personally on each defendant by the plaintiff or his agent. (2) A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served—{a) by sending a copy of the writ by ordinary first-class post to the defendant at his usual or last known address, or (b) if there isa letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant. In sub-paragraph (a) “first- class post” means first-class post which has been pre-paid or in respect of which prepayment is not required. (3) Where a writ is served in accordance with paragraph (2)—{a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day... after j the date on which the copy was sent to of, as the case may be, inserted through the letter box for the address in question; (b) any affidavit proving due service of the writ must contain a statement to the effect that—{i) in the opinion of the deponent (or, if the deponent is the plaintiff's solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to, or, as the case may be,HL Barclays Bank Ltd v Hahn (Lord Brightman) 401 inserted through the letter box for, the address in question, will have come to the knowledge of the defendant within 7 days thereafter; and (ji) in the case of service by poss the copy ofthe wrt has not ben retuned ro the pani ehrough the post undelivered to the addressee...” It is the appellant's claim that the writ was not duly served on him because on its true construction Ord 10, r 1(2)() requires that the defendant shall be physically present within the jurisdiction at the time of service, and the appellant was outside the jurisdiction when the envelope was inserted through his letter box. Put shortly, it was argued on the appellant's behalf that the jurisdiction of the court to entertain an action in personam depended historically on the defendant being served personally with the King’s writ. When the Rules of the Supreme Court were amended in 1979 to permit ‘letter box service’, it was not intended to alter the substantive jurisdictional requirement that the defendant be physically present within the jurisdiction at the time of service, but merely to provide an alternative to the procedural requirement that the defendant be handed the process personally. Physical presence within the jurisdiction at the time of service remained an essential ingredient of valid service. Under para (2)(b) the time of service is the time when the envelope is inserted through the letter box. The appellant was not, at that time, in England. Therefore the writ was not duly served. This argument was accepted by the master and upheld on appeal by the High Court judge. The result, your Lordships were told, would be the same even if contrary to the appellant’s submission the writ were deemed to be served a week later by virtue of para (3)(c), since the appellant remained outside the jurisdiction. The bank contended that, although a writ can be served on a defendant personally only if he is then physically present within the jurisdiction, nevertheless it does not follow that physical presence within the jurisdiction is necessary for the validity of the alternative means of service provided by Ord 10, namely postal or letter-box service. In support of this argument it was contended that, in the opening words of para (2)‘A writ for service on a defendant within the jurisdiction may . . . be served’ by post or letter box, the words ‘within the jurisdiction’ are not descriptive of ‘a defendant’ but of the nature of 'a writ for service’, namely a writ which is in the form of a writ for service within the jurisdiction as distinct from a writ which is in the form of a writ for service outside the jurisdiction. The former type of writ can properly be served on a defendant who is outside the jurisdiction provided that the requirements of the order are fulfilled, that is to say, in the case of letter-box service, the letter box must be located at the usual address. of the defendant, or at his last known address, and the plaintiff must be in a position to depose when he seeks to prove service that in his opinion the copy writ will have come to the knowledge of the defendant within seven days after such insertion. The bank’s argument was accepted by the Court of Appeal. As Fox LJ said ({1989] 1 AILER 193 at 195-196, [1989] 1 WLR 13 at 16-17): ‘It seems to me that the words “A writ for service on a defendant within the jurisdiction” are descriptive of the writ and its service and not of the defendant. In my opinion they are directed at the distinction between a writ for service within the jurisdiction and one for service out of the jurisdiction... . The result, in my opinion, is that the language of Ord 10 does not require the presence of the defendant within the jurisdiction when the envelope containing a copy writ is put through the letter box or is posted... itis important to observe that we are not dealing witha situation in which service is effectively permissible on persons having no real connection with this country. In this respect lam not troubled by the example of service through the letter box at the last-known address of a person who has not entered this country for, say, 20 years . .. These provisions [para (3)(6) of r 1 of Ord 10}, it seems to me, protect the person who has ceased to have any real connection with the address at which the service is made. The opinion that is required to be sworn to on behalf of the plaintiff, involving, as it does, the likelihood that the writ will come to the402 All England Law Reports [1989] 2 AER knowledge of the defendant within seven days, assumes a substantial degree of contact with this country on the part of the defendant served.” a The absurdity which would flow from the appellant's argument was highlighted in the judgment of Parker LJ ((1989] 1 All ER 193 at 196, [1989] 1 WLR 13 at 18): ‘... if one had a defendant living in the northern part of Cumbria, who was regularly in the habit of crossing the border for his lunch, it appears to me to make a complete nonsense of the whole matter if he were able to say that service had been bad because at the time when the letter had been put through the letter box or at the time when it had been posted he had happened to be in the southern part of Scotland for no more than an hour.’ Before your Lordships the appellant sought to advance an alternative argument that a defendant on whom itis sought to effect service within the jurisdiction must be within the jurisdiction at the time of the issue of the writ, when the appellant was also abroad. There is no judicial authority to support this novel proposition and it was not pressed. My Lords, I accept the appellant's proposition that the defendant must be within the jurisdiction at the time when the writ is served, and I do not find it possible to agree the Court of Appeal’s approach, This approach would mean that a writ could validly be served under Ord 10 on a defendant who had once had an address in England but had gy permanently left this country and settled elsewhere by inserting the copy writ through the letter box of his last address, provided that the plaintiff was able within seven days to communicate to the defendant the existence of the copy writ; for in such circumstances the plaintiff could properly depose that the copy writ would have come to the knowledge of the defendant within seven days after it was left in the letter box of his last known address. This appears to me to outflank Ord 11 (relating to service of process outside the @ jurisdiction) in every case where the defendant was formerly resident in this country and is capable of being contacted abroad within seven days. I feel no doubt that the words ‘within the jurisdiction’ apply to the defendant, and not to the writ for service. My Lords, | entirely applaud the common sense of the decision of the Court of Appeal, but I prefer to reach the same destination by another route. I think that the clue to the problem is to be found in para (3)(a) of Ord 10, r 1. This provides, inter alia, that the date of service is to be the seventh day after the date on which the copy writ was inserted through the letter box for the address in question ‘unless the contrary is shown’. It follows from the exception that there may be circumstances where the date of service is not the date of letter-box insertion. I therefore ask myself: in what circumstances might a plaintiff or defendant be able to show that the seventh day after the date of insertion through the letter box was not the date of service; do such circumstances exist in the g present case; and, if'so, what date of service takes the place of the deemed date of service? My Lords, in the case of letter-box service I can think of nothing which is capable of giving content to the expression ‘unless the contrary is shown’ save that it refers to the defendant's knowledge of the existence of the writ, nor was the appellant's counsel able to suggest any other solution. Indeed, it is the obvious solution because the purpose of serving a writ is to give the defendant knowledge of the existence of proceedings against A him; that is exactly what a defendant acquires when a writ is served on him personally; and it is exactly what I would expect that procedural rules would require when service is impersonal and not personal. So I answer the first question which I have posed by saying that a plaintiff or a defendant may displace the deemed date of service by proving that the defendant acquired knowledge of the writ at some other date. Tturn therefore to my second question, and ask myself whether in the instant case the bank can ‘show the contrary’, ie establish that the deemed date of service (namely 21 April) ought to be displaced by some other date. In my opinion the answer is clearly Yes, and that date is 14 April. For on that day, after the appellant had landed at Heathrow, ~» > ° ® HL Barclays Bank Ltd v Hahn (Lord Brightman) 403 he acquired knowledge of the copy writ. I appreciate that there is no admission by the appellant that he knew of the writ, and that there is no finding of fact to that effect. But the existence of that knowledge is transparently clear. The appellant was intending to drive to the flat, He is informed by Mr Symonds of the existence of the envelope and of the circumstances of its delivery. He then changes course and does not go to the flat, But his wife goes there, looks at the envelope but does not open it. The appellant stays the night at a hotel near Heathrow and takes a flight out of England on the next day. Why did the appellant take such care to stay away from the envelope? Obviously an important envelope, because it was to his knowledge delivered by special messenger. Why did he not open the envelope or ask his wife to open it? Because he knew perfectly well what it contained, There is no other conceivable reason nor was the appellant’s counsel able to suggest one. In the result the bank is able to show the contrary, and establish without a scintilla of doubt that the copy writ came to the knowledge of the appellant late in the afternoon of 14 April, when he was within the jurisdiction. The writ was therefore properly served on him under Ord to, r 1(2Xb) on that day. For the reasons which I have suggested to your Lordships, I would dismiss this appeal with costs, although my reasoning differs from that of the Court of Appeal. LORD TEMPLEMAN. My Lords, for the reasons given in the speech of my noble and learned friend Lord Brightman, I would dismiss this appeal. LORD GRIFFITHS. My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Brightman. | agree with it and would dismiss the appeal. LORD LOWRY. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brightman. agree with it and, for the reasons which he gives, I, too, would dismiss the appeal. Appeal dismissed. Solicitors: Hart Brown é& Co, Guildford (for the appellant); Lovell White Durrant (for the bank). Mary Rose Plummer Barrister.