The judgment in MBR Acres Ltd and others v Maher and another handed down in May 2022 by Mr Justice Nicklin raised an important issue around personal service. The case arose following committal applications that came out of an injunction obtained by the claimants against animal rights protesters who had set up camp outside their premises. The injunction included the imposition of an exclusion zone around the premises and restrictions on not stopping cars from entering or leaving it. Two protesters breached the injunction.
The key issue that arose was that the claimants effected service of the injunction on one of the defendants, Ms Laidlaw, on the solicitors representing her throughout the injunction proceedings rather than personally. The claimants had not sought an order for alternative service on Ms Laidlaw.
The claimants, however, argued that the new CPR Part 81 introduced in October 2020 not only no longer required personal service of an injunction on a defendant to allow for contempt proceedings to be brought for breach of that injunction, but instead required service to be effected through instructed solicitors.
The former CPR Part 81, introduced in 2012, was subject to judicial criticism for its uncertain wording and lack of consistency. It was also long, complicated and repetitive, replicating substantive law as well as dealing with procedure. The new Part 81 was introduced following a consultation exercise undertaken by the Civil Procedure Rule Committee. Ten rules with no Practice Direction replaced the previous 38 rules, two Practice Directions and a Practice Direction Guidance. New forms designed to ensure compliance with the rules were also introduced, in particular Form N600 for a contempt application.
The new CPR 81 is confined to matters of procedure but, importantly, has effect subject to and to the extent that it is consistent with the substantive law of contempt of court (CPR 81.1(3)).
In MBR, the claimant’s solicitors stated that, after proper consideration of the new Part 81, they considered that the rules required Ms Laidlaw, who was represented at the injunction hearing, to be served with the injunction through her solicitors rather than personally. They did not share this interpretation nor their intentions as to service at the injunction hearing.
Their argument was that the new Part 81 no longer contained the express requirement personally to serve an injunction order, so that service should be governed by the general provisions of Part 6 requiring service of documents to be effected on instructed solicitors. Nicklin J, after considering the development of the law of contempt, found that this requirement was removed because Part 81 provides the procedural rules for contempt applications (which necessarily follow the stage at which the breached injunction is obtained), whereas the requirement for personal service was a recognised element of the substantive law of contempt. The requirement is designed to ensure procedural fairness to a defendant whose liberty is at stake in a contempt application.
Further, the new CPR 81.4, described as the “cornerstone” of the new rules, sets out the requirements of a contempt application to achieve this procedural fairness. CPR 81.4(c) requires the application to include confirmation that the underlying order was personally served, and the date it was served, unless the court or the parties dispensed with personal service. Further, Form N600, which the claimants did not use, contains a series of questions, including the date of personal service or alternatively the date of the order dispensing with personal service. It follows that personal service was required.
Nicklin J confirmed that Form N600 ought to be used unless there are compelling reasons justifying not doing so. He found that the injunction order was not validly served on Ms Laidlaw, and declined retrospectively to grant the claimants’ application for alternative service as there was no good reason to allow it. The injunction could, and should, have been served personally. As such, the relevant contempt application was dismissed.
The clarification as to the requirement for personal service is helpful, but not altogether surprising given its importance in the law of contempt. It is a stark reminder that the new Part 81 simplifies procedure, but does not replace substantive law, which still needs to be complied with.
Personal service is of course less convenient but, unless it is dispensed with, must be attempted where required. Reasonable efforts to effect personal service, even if unsuccessful, or to otherwise bring the terms of an injunction to a defendant’s attention can then ground an application for alternative service or to dispense with service.
Multiple attempts at personal service by a process server may be required. Efforts to contact the defendant to arrange personal service or otherwise bring the document and its contents to their attention should be made if necessary through all known channels, including postal or email addresses, former solicitors, or even social media.
Aside from service, MBR provides a wider lesson to practitioners dealing with rules where there is uncertainty or multiple possible interpretations. The claimants could have avoided a lot of trouble had they raised their interpretation of the procedural rules at the injunction hearing. Similarly, depending on the circumstances of a case, it may be advisable to anticipate potential issues with the interpretation of rules and raise these early with an opponent or the court to avoid difficult situations if it turns out that your interpretation was not correct.