ON APPEAL FROM HIGH COURT - QUEEN'S BENCH DIVISION
(MR BUTCHER QC (Sitting as a Deputy High Court Judge)
London, WC2A 2LL
B e f o r e :
LADY JUSTICE SHARP
LORD JUSTICE BEAN
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Mr Robert Levy QC & Ms Erin Hitchens (instructed by Clyde & Co) appeared on behalf of the Respondents
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LORD JUSTICE AIKENS:
The history of the Proceedings
(1) The claim form was issued on 14 February 2012. It was therefore initially valid for service until 14 June 2012, or 14 August 2012 if the Claimant obtained permission to serve it out of the jurisdiction.
(2) On 21 February 2012 the Claimant's solicitors, Clyde & Co, emailed a copy of the claim form to Mr Hardy Sohanpal of the Defendant. Mr Sohanpal replied the following day advising the Claimant to contact Dr Ayman Al Juwayer, the Defendant's in-house lawyer. The Claimant emailed the claim form to Dr Al Juwayer on 22 February 2012.
(3) On 10 April 2012, not having received a response, Clyde & Co emailed Dr Al Juwayer asking whether the Defendant had an agent in England and Wales who was instructed to accept service, failing which they would arrange for service at its registered offices. Again no response was sent.
(4) On 9 May 2012, the Claimant applied for permission to serve the claim form on the Defendant in Saudi Arabia. On 16 May 2012 Burton J granted permission for the Claimant to serve the claim form at a specific address in Jeddah 'or elsewhere in Saudi Arabia'.
(5) On 18 June 2012 the Claimant initiated the process of serving the claim via the Foreign Process Section of the High Court.
(6) On 8 August 2012 the Claimant applied for an extension of time for serving the claim form. An extension of 6 months, until 14 February 2013, was granted by Hamblen J on 15 August 2012.
(7) On 13 September 2012 Clyde & Co wrote to Dr Al Juwayer enclosing a copy of their letter of 21 February 2012, the claim form and the order extending time for service until 14 February 2013.
(8) On 25 January 2013 the Claimant applied for a further extension of time. (The Application Notice was misleading in that the basis for the application was said to be that service 'must be effected through consular channels', whereas in fact other methods of service are permitted in Saudi Arabia: see e.g. Ms Williamson's statement at paras 10 and 48.2). In any event, another extension of 6 months, until 14 August 2013, was granted by Andrew Smith J on 31 January 2013.
(9) On 8 May 2013, service via the consular process had still not taken place and the Claimant therefore applied for permission to serve the claim form by an alternative method.
(10) On 20 May 2013, Mr R. Knowles QC made an order, in the form requested by the Claimant, authorising service by two specific methods, namely:
(a) by delivery of two copies to the Defendant's address, one marked for the attention of 'the Chair of the Board of Directors or such other appropriate person acting on their behalf', and the other for the attention of Dr Al Juwayer; and
(b) by delivery to Field Fisher Waterhouse ('FFW') in London (who the Claimant knew had acted for the Defendant in other proceedings).
(11) The order of Mr Knowles QC provided that 'service by these means shall be deemed to be good and sufficient service of the Claim Form and Response Pack on the second business day after the later of the two methods of service is effected.'
(12) On 29 May 2013 Clyde & Co sent the relevant documents to its associated firm in Saudi Arabia, "AAAB", and asked them to effect service on the Defendant.
(13) On 12 June 2013 Clyde & Co learned that the Defendant's address had changed. Some time later in June the Claimant applied to amend the order so as to refer to the new address. The order was made on 1 July 2013.
(14) On 8 July 2013 Clyde & Co wrote to AAAB requesting that the amended order be translated and served with the other documents previously provided.
(15) On 17 July 2013 AAAB advised that they had done nothing to action this request as the person responsible had not returned to Riyadh. Clyde & Co requested that the translations should be commenced to ensure that service could be effected as soon as possible. On 28 July 2013 AAAB advised that they had requested that the documents be translated. On 6 August 2013 AAAB informed Clyde & Co that the translation was complete but that all businesses would be shut from 7-13 August 2013 because of Eid.
(16) On 15 August 2013 (one day after time for service of the claim form expired), Clyde & Co sent the claim form to FFW.
(17) On 18 August 2013 AAAB delivered the documents to the Defendant in accordance with the order of 20 May 2013 (as amended).
(18) By the terms of that order, therefore, deemed service took place on 20 August 2013, six days after the time for service expired.
(19) The Defendant did not respond to the claim and the Claimant subsequently applied for summary judgment. There is a dispute as to whether NAS received notice of the summary judgment application: in any event, it did not attend the hearing. Summary judgment was granted by Mr Knowles QC on 14 March 2014. The Court was not told that the claim form had been served out of time.
(20) NAS learned of the judgment when it received Clyde & Co's letter of 17 April 2014 enclosing the order. It immediately instructed English solicitors, Bird & Bird, who wrote to Clyde & Co on 29 April 2014 to request copies of all the documents relating to the proceedings. Clyde & Co provided these documents on 1 May 2014.
(21) On 6 May 2014, NAS issued an application disputing jurisdiction and asking for the judgment to be set aside. (That is the appropriate application to make where a claim form has not been served in time: see Hoddinott v Persimmon Homes (Wessex) Ltd  1 WLR 806 at -.) NAS's application has been adjourned pending determination of this application and any appeal.
(22) On 16 May 2014, the Claimant issued a cross-application for (a) a retrospective extension of time for service under CPR 7.6(3); (b) a retrospective order for alternative service under CPR 6.15; (c) an order dispensing with service under CPR 6.16, and (d) an order correcting an error of procedure under CPR 3.10."
CPR Part 6.15
8. As this appeal is concerned with the correct interpretation of CPR Part 6.15 I will set it out now. It provides:
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule –
(a) must be supported by evidence; and
(b) may be made without notice.
(4) An order under this rule must specify –
(a) the method or place of service;
(b) the date on which the claim form is deemed served; and
(c) the period for –
(i) filing an acknowledgment of service;
(ii) filing an admission; or
(iii) filing a defence."
The judge's judgment
"Whether there was good reason is essentially a matter of fact. I do not think that it is appropriate to add a gloss to the test by saying that there will only be a good reason in exceptional circumstances. Under CPR r 6.16, the court can only dispense with service of the claim form 'in exceptional circumstances'. CPR r 6.15(1) and, by implication, also 6.15(2) require only a 'good reason'. It seems to me that in the future, under rule 6.15(2), in a case not involving the Hague Service Convention or a bilateral service Treaty, the court should simply ask whether, in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service."
Conclusion on the appellant's first point
"Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can be made only if there is a 'good reason' to do so. The question, therefore, is whether there was a good reason to order that the steps taken [in that case] constituted good service of the claim form on him."
Conclusion on appellant's second point
"(i) The letter to PO Box 18118 Jeddah of 21st February 2012; (ii) the email of Mr Sohanpal of 21st February 2012 and the email to Dr Ayman Al Juwayer on 22nd February 2012; (iii) the further letter to the same address on 13th September 2012; and (iv) the further email to Dr Ayman Al Juwayer on 13th September 2012."
LADY JUSTICE SHARP
LORD JUSTICE BEAN
Order: Application dismissed