Oakfield Foods Ltd v Zaklad Przemyslu Miesnego Biernacki SP & Anor

11 I also accept Mr Dye’s submission that the DX tracking report satisfies the criteria of Ladd v Marshall [1954] 1 WLR 1489 as it has been applied in circumstances such as this, namely where new evidence has emerged after judgment has been given but before an order has been sealed. The tracking report is, as he submits, is a reliable contemporaneous record which Oakfield reasonably believed did not exist and the reason why it was reasonable was because the DX told Oakfield’s legal representatives that it did not exist. 12 However, the critical question is whether the tracking report makes any difference to the outcome of the case and causes me either to modify my judgment in any material respect or to make a different order. 13 In my judgment, the tracking report does cause me to make an alteration to my previous judgment but it does not cause me to reach a different conclusion or to make a different order for the following reasons. 14 Mr Dye’s key submission to me at the last hearing is summarised in paragraph 32 of his skeleton dated 10 January 2020. His submission then was as follows: “Oakfield therefore submits that on the evidence above, the court should be satisfied that the bundle was returned by OGR Stock Denton to the court on 3 December 2018.” 15 The evidence referred to above is set out in six subparagraphs including reference to OGR Stock Denton’s DX tracking log, Mr Glass’s stamping and dating declaration, the evidence of the exchanges between Mr Glass and Mr Pearl of OGR Stock Denton, and the confirmation by email from OGR Stock Denton to Oakfield itself that it had put the package in what it called “the special post”. The final point relied upon at the last hearing by Mr Dye in paragraph 31(f) of his skeleton was that OGR Stock Denton had checked the DX for tracking evidence but no such evidence was available. However, he pointed out that the documents had not been returned as undelivered by the DX to OGR Stock Denton. 16 Having considered all that evidence and the submissions that were made, I rejected his conclusion that he invited me to draw from that evidence, namely that the court should be satisfied that the bundle was returned to the Foreign Process Section in Room E16 at the Royal Courts of Justice, essentially for four reasons. I accepted on the evidence that I had had before me that it had been prepared for dispatch in the DX but I held that there was no or insufficient evidence that the package had actually arrived in Room E16 at the Royal Courts of Justice for four reasons: (1) No acknowledgement of receipt had ever been issued by that office; (2) no trace of the document had been found on any of the files inspected to date; (3) the wrong DX had been used to the extent that the Foreign Process Section authorises use of DX, the relevant DX box is 44459 Strand; (4) The Foreign Process Section itself had confirmed to the Poznan Regional Court that service on Oakfield had been effected under the Service Regulation. It seems to me that all four of those reasons still apply notwithstanding the new DX tracking report evidence. 17 In my judgment, the new tracking report amounts to no more than a very slight strengthening of Mr Dye’s previous submission in paragraph 31(f). Instead of being constrained simply to rely on the fact that the documents were never returned by the DX, he can now show, by means of the tracking report, that an employee of HMCTS authorised to collect the items sent to DX 44450, collected the item, and took it away on the morning of 4 December 2018. However, the crucial question, in my judgment, is whether Oakfield can show that the Annexe 2 declaration was returned to the address as set out in the form itself, namely “The Senior Master, for the attention of the Foreign Process Section, Royal Courts of Justice, Room E16, Strand, WC2A 2LL”. 18 I am not satisfied, even taking together the new evidence with the old evidence, that it can. As I have said, the Foreign Process Section did not issue a receipt and no trace of the declaration has yet been found on the court’s files, and as I previously held, the Foreign Process Section has confirmed service has been effected. This all still, it seems to me, strongly suggests that the Annexe 2 declaration did not reach E16. I therefore accept Ms Gilbert’s submission that the new evidence does not show that the Annexe 2 declaration reached the Foreign Process Section in Room E16 which is where the Annexe 2 document said it must be returned to. 19 The Annexe 2 document did not invite the recipient, in this case Oakfield, to return it to the RCJ generally, or indeed anywhere, by DX. Instead, the document required, on its face, to be returned to a particular office in the Royal Courts of Justice and the only two methods available on the face of the document read in light of CPR and the Service Regulation are hand filing at the relevant room, or via post, that is to say Royal Mail, no fax number, no email number having been supplied. 20 As I held in my previous judgment, paragraph 5.1 of Practice Direction 5A to CPR 5 sets out the domestic rules for filing documents at court and shows how filing in detail is to be acknowledged and recorded. Under that Practice Direction, it is quite clear that where a document is required to be filed in court that it will be acknowledged by means of a stamped acknowledgement and when it is permitted to be received by fax, then a time of receipt is also recorded. Furthermore, the information that the United Kingdom has applied under Article 22 of the Service Regulation makes it absolutely plain that documents received by the High Court when acting as a receiving agency under the Service Regulation may only be received by post or by fax. The DX is not an authorised method for filing for the purposes of Annexe 2 under the Service Regulation. 21 So any party choosing to use a DX takes a risk that if the document sent in a DX is not, in fact, received it cannot rely on any legal presumption of safe receipt and, instead, has to prove it positively. Had the Annexe 2 document been sent by first class post to the address as set out on the Annexe 2 form and received by Oakfield then, as Mr Dye submitted correctly at the last hearing, Oakfield could have relied on Section 7 of the Interpretation Act 1978 as there would be the presumption that the document had arrived. However, that is not what happened here. OGR Stock Denton instead chose to use an unauthorised form of communication and then it seems to me it compounded this mistake by using the wrong DX number. In doing so, it in effect relied on Her Majesty’s Court and Tribunal Service staff to remedy its own error and I have no doubt that 9 or perhaps even 9.9 times out of 10, the conscientious staff of Her Majesty’s Court and Tribunal Service would indeed remedied the mistake by transferring the documents internally. However, no system is infallible. It seems to me OGR Stock Denton failed to check the document had even arrived and at no stage appeared to have checked to see acknowledgement or asked for a receipt. Had it chosen hand delivery, it would under Practice Direction 5A to CPR 5 have received a stamped receipt. 22 So whilst I am prepared to amend the judgment to find as an additional fact that the package containing the Annexe 2 declaration was collected by a member of HMCTS staff authorised to collect documents received into DX 44450, I am not prepared to find and I am not satisfied that on the evidence I have seen, that the Annexe 2 statement was indeed returned to Room E16 as required within the seven day period. Therefore, I am also not willing to hold or find as a fact that service was validly refused by Oakfield on account of the documents not being in a language that Oakfield understood. So that is the first reason the new evidence does not change the result. 23 The second reason why the tracking report makes no difference to the outcome of Oakfield’s application is that I held as a matter of interpretation of the EOP Regulation itself, this court has no jurisdiction in any event to declare that the EOP is unenforceable. As I said in that judgment, having dealt with Mr Dye’s submissions on the facts of whether the document had actually been received, I said this: “It also fails as a matter of law. Even if I had been satisfied the document had arrived at court, it seems to me that issues of enforceability are for the court in the member state of origin to decide. This follows from Article 22(3).” 24 In the course of that judgment, I distinguished Moreno de la hija v lee [2019] 1 WLR 175 on which Mr Dye had relied and I held that if Oakfield wished to challenge the enforceability or validity of the EOP, it could only do so in the Regional Court of Poznan, i.e. the EOP issuing court. That is why I rejected the submission made at paragraph 33 of Mr Dye’s original skeleton which followed on from his submission of fact that the court should be satisfied that the bundle had arrived. He then submitted in paragraph 33 that if that is accepted as a matter of fact, he submitted that the EOP is invalid and the Polish court’s declaration of enforceability makes no difference. I rejected that submission and have no reason to change it now. So even if I were to accept that it is sufficient for the document to have arrived somewhere in the Royal Courts of Justice, then I would have still reached the same conclusion. 25 I do wish to emphasise, however, that my findings in this judgment, as with the previous judgment, are limited to those that I can safely make on the basis of the present evidence. A determination that I am not satisfied that the Annexe 2 statement was returned to E16 is not a finding of this court that it was not returned. I have made orders for inspection of the files held in the Foreign Process Section and for the Senior Master to be alerted to the existence of the letter from the Poznan Regional Court dated 23 October 2019 in which the court there asks questions about how it came to be that the EOP was certified as having been properly served in circumstances where Oakfield were saying that it had objected by returning an Annexe 2 statement. It may be that as a result of those further enquiries, further or other evidence emerges which may assist Oakfield in its attempts to show that the Annexe 2 statement was, in fact, received in E16 and was overlooked. If that evidence emerges, it may well be that that is relevant to the application in Poland. That, however, is not for me to decide. Nothing in this judgment or in my previous judgment should be read as seeking to preclude Oakfield from making further submissions on more or different evidence should it discover it later. I have only been able to make limited positive findings on limited evidence. So that deals with Oakfield’s application. I will now deal with the application by the High Court Enforcement Group. The second application 26 HCEG were added to these proceedings by order of Mr David Pittaway QC on 13 December 2019. The learned judge ordered that the sum of £182,887.72 be preserved intact and not charged or paid away. HCEG did not attend the hearing on 13 January 2020 to challenge that part of the order and it does not appear in front of me today. 27 The effect of my order at the invitation of Mr Dye is simply to move the preserved asset from being in the possession of HCEG to being in the possession of the court office. If at the end of the proceedings in Poland the EOP is upheld, then HCEG will have the opportunity to come to court to argue that it is entitled to be paid its fee before the sum is paid to Biernacki. If on the other hand the result is that the EOP is declared invalid, then again, HCEG will have an opportunity to come to this court and to say that it should pay its fee before the money is returned to Oakfield. 28 In my judgment, it is not appropriate to pre-judge that issue today by allowing HCEG to deduct now any fees that it might be entitled to claim. The purpose of my order remains, as Mr Dye put it, namely to hold the ring pending the resolution of the challenge to the EOP in Poland. So I decline the application by HCEG for permission to withhold any part of the £182,887.72 which it must transfer to the Court Funds Office by the date stipulated. Conclusion 29 The net result is that both applications fail and my previous order remains unchanged. I will, later today, circulate an approved version of the order for the last hearing. A new order will need to be drawn up in respect of the two applications decided today and I will ask counsel to agree an order in relation to that and supply it to me by email, please 30 That concludes my judgment. ___________________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge