05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) the court can decide issues of the law, it should not attempt to try disputes of fact on affidavit. [39] Once the court has concluded that it has jurisdiction to make an order, it must be satisfied in respect of each cause of action that there is a serious question to be tried. [40] The Supreme Court Practice Volume 1 at 11/1/12 goes on to state: "The applicant must also satisfy the Court that it is proper to exercise its discretion to grant leave; this is second consequence of the requirement of r.4(2) referred to above. Moreover the Court retains an inherent discretion to decline jurisdiction on grounds such as forum non conveniens or failure on the part of the plaintiff to make out a good arguable case (Kuwait Asia Bank EC v National Mutual Life Nominees Limited [1990] 3 WLR 297)." [41] Duncan and Neill on Defamation (4th Edition) succinctly sums up the requirements for service out at 9.09 when it says: "To obtain permission, the claimant must satisfy the court: (1) There is a good arguable case that one of the grounds in (Order 11 Rule 1(1)) is made out; (2) There is a serious issue to be tried; and (3) (Northern Ireland) is a proper place in which to bring the claim." THE REQUIREMENT OF ORDER 11 RULE 4(1)(b) [42] There was much debate about whether the absence of an averment in the original grounding application by the plaintiff that he enjoyed a good cause of action was fatal to the plaintiff's application being a mandatory requirement under Order 11 Rule 4(1)(b). There can be no doubt that the present regime for civil justice in Northern Ireland requires that "procedural rules should be the servant not the master of the law". The overarching imperative is set out at Order 1 Rule 1(A) which I will discuss in rather more detail later on in the judgment. Justice is not going to be served by dismissing an application for leave to serve out of the jurisdiction and requiring the plaintiff to start again when it is perfectly clear to the court on the papers that the plaintiff enjoys a good cause of action, simply because the plaintiff has omitted to include such an averment in the grounding affidavit. That would be in many cases a disproportionate response and a waste of court time. It would be far better to deal with such an omission by imposing some sort of proportionate cost sanction. Of course in a finally balanced application, the absence of an averment under Order 11 Rule 4(1)(b) might well be considered critical to the success of the application. However, I do note that Staughton LJ appears to have reached a different view in Kuwait Oil Tanker Co SAK v Al Bader and Others [1997] 2 All ER 855 at 859(d)-(e). [43] In any event, eventually, an affidavit was filed by Mr Durkan, a solicitor acting for the plaintiff at the very last moment containing the missing averment. So if I am wrong and the requirement under Order 11 Rule 4(1)(b) remains a mandatory condition for obtaining leave, then, it has been satisfied in this case, however belatedly. It is fair to say that an enormous amount of time and energy was taken up in dealing with this issue which, as I found, must have been apparent to Google even before the original ex parte application for leave was made, and could have been raised and dealt with before Stephens J. The failure of the plaintiff to mend his hand until late in the application also contributed to the wasteful use of court time and resources. THE RULE IN PARKER v SCHULLER [44] It is necessary to look at the rule in Parker v Schuller [1901] 17 TLR 299 before I examine the application for leave to serve out of the jurisdiction. This is a rule of the common law dating back to 1901 which Google calls in aide. This rule is said to prevent a plaintiff who has been granted permission to serve a writ out of the jurisdiction under Order 11 from seeking to defend an application to set aside the permission by pleading a new cause of action or by fundamentally altering the basis of file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 11/26