QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Basil Shiblaq
|- and -
Mr Joe Smouha QC and Miss Jessica Mance (instructed by Addleshaw Goddard) for the Claimant (Respondent)
Hearing dates : 21 May and 9 July 2004
Crown Copyright ©
Mr Justice Colman:
a. Was the service said to have been effected on the defendant in Turkey on 7 September 2001 or earlier a valid service for the purposes of CPR 12.3(1) so as to entitle the claimant to obtain judgment in default of acknowledgement of service under CPR 12?
b. If the answer to (a) is that the service was not valid, whether this court should make an order in accordance with the claimant's applications, issued since the last hearing, under CPR 3.10, which provides as follows:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction-
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
c. and/or under CPR 6.9 which provides that the court may dispense with service of a document.
a. was the method of service of foreign proceedings adopted in this case permissible under Turkish Law?
b. Alternatively, was the method of service permissible under Article 15 of the Hague Convention to which both Turkey and the United Kingdom are parties?
"Provided the State of destination does not object, the present Convention shall not interfere with:
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination."
"Where a writ of summons or an equivalent document has to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that:
a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or
(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention.
and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.
Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:
a) the document was transmitted by one of the methods provided for in this Convention,
b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures."
"1(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or other therein.
(2) Subject to paragraph (3) the Court may, on the ground that there has been such failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."
"(1) The court may dispense with service of a document.
(2) An application for an order to dispense with service may be made without notice."
"In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin's case, between two different kinds of case.
First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin's case as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.
Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim form. The ground of the application is that the defendant does not dispute that he or his legal adviser has in fact received, and had his attention drawn to, the claim form by a permitted method of service within the period of four months, or an extension thereof. In the circumstances of the second case the claimant does not need to serve the claim form on the defendant in order to bring it to his attention, but he has failed to comply with the rules for service of the claim form. His case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove service of the claim form in accordance with the rules. The basis of his application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant accepts that he has received the claim form before the end of the period for service of the claim form. Apart from losing the opportunity to take advantage of the point that service was not in time in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document, which has already come into his hands before the end of the period for service. The claimant, on the other hand, will be prejudiced by the refusal of an order dispensing with service as, if he is still required to serve the claim form, he will be unable to do so because he cannot obtain an extension of time for service under rule 7.6(3).
In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisers in their conduct of the proceedings and any possible prejudice to the defendant on dispensing with service of the claim form."
"In these circumstances, it is not necessary to decide whether the judge was right to dispense with service under CPR 6.9. However, in view of the importance of giving some guidance as to the scope of CPR 6.9 in cases such as this, we shall express our opinion on this issue on the footing that (contrary to the view just expressed) service should have been on the defendant's solicitors under CPR 6.4(2). In our judgment, on that hypothesis, the circumstances identified by the judge did not make this an "exceptional" case within the letter or the spirit of Anderton and Wilkey. But we wish to emphasise the following features. It is clear that a copy of the claim form as issued was sent to Branton on 15 March 2002. In other words, a copy of the right document was sent to the right person at the right address and, if CPR 6.7 applied, it was deemed to have been served before the expiry of the 4 month period. Moreover, Branton were informed by Horwich that the original documents had been served on the defendant's registered office that same day. The only flaw in the process was that Horwich sent a copy of the issued claim form, rather than the original document itself. In this regard, it is to be noted that, if Horwich had sent the issued claim form to Branton by fax, that would have been good service. A document received by fax is a copy document. The circumstances revealed by this case do not precisely satisfy the Anderton criteria: Branton received a document served by one of the permitted methods of service (ie by first class post on the right person at the right address), but it was a copy of the document that should have been served.
In these very unusual circumstances, had it been necessary to do so, we would have decided that it was right to dispense with service under CPR 6.9. It is possible that the relationship between service under section 725(1) and service under the CPR was not fully understood, and that the importance of serving on the party to be served the original claim form that has been issued (rather than a copy) was not appreciated. But in future the significance of these points will have to be taken into account. Errors of this kind will generally not be regarded as good reasons for making an order under CPR 6.9. In stipulating a strict approach for the future in such circumstances, we have been guided by what was said in Anderton and Wilkey."
"By CPR 6.9 the court may dispense with service of a document. The power under CPR 6.9 can be exercised retrospectively, but only in exceptional circumstances: Anderton v. Clwyd CC (No.2)  1 WLR 3174, 3195. The Court of Appeal distinguished the case where the claimant had not even attempted to serve a claim form in time, with the case where the claimant had made an ineffective attempt to serve, and where the defendant did not dispute that he or his legal adviser had in fact received and had his attention drawn to the claim form by a permitted method of service. In the latter case the claimant does not need to serve the claim form in order to bring it to his attention, but he has failed to comply with rules for service. The basis of the application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document which has already come into his hands.
But in the present case there has been no valid service either by Maltese law or by English law. Service by post was not attempted. The service by facsimile and email was not effective because the defendants had not previously indicated in writing that they were willing to accept service by facsimile or by e-mail: see CPR 6PD 3.1 and 3.3. Nor was there service under CPR 6.4, which provides that personal service on a company or corporation takes place by leaving it with a person holding a senior position within the company or corporation; nor under CPR 6.5(6), which only applies to documents left with a foreign company at a place where the corporation carries on its activities within the jurisdiction.
The claimants accept that the claim form has not been formally served on the defendants in accordance with Maltese law as required by CPR 6.24. But they say that the defendants have: (a) had informal service of the claim form well within the 4 month period for service; (b) received copies of all the relevant documents; (b) instructed English solicitors; and (c) taken an active part in the proceedings. Any defendant, acting sensibly and in accordance with the overriding objective, would – on receipt of the relevant documents well within the four month period and having instructed English solicitors – have waived the need for formal service or would have instructed their English solicitors to accept service in the jurisdiction."
and at 682 he concluded his judgment thus:
"At the time of the hearing of this matter service had not been effected in Malta, although of course the Company, and its Board of Administration, have had the documents since at the latest June 9, 2003. It is true that a defendant is fully entitled to insist on proper service. Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service. But I would hope that, on mature reflection, Mr Tabona would not be advised to take any purely technical point on service."
"It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a "mandatory and exhaustive code of the proper means of service on German domiciled defendants", which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is "good reason": but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way."
"In the light of these considerations we would seek to sum up the issue of whether or not there was good reason in this case under rule 6.8 as follows. The application to Aikens J was put specifically on the basis that it was the best, perhaps the only means of bringing all parties into a single forum. An unusual form of service was requested, not for the sake of effecting service (for instance because of some difficulty about that), but for the sake of establishing jurisdiction over a foreign party (Peters) which was prima facie entitled to be sued in the courts of its domicile. The conventions controlling service between the United Kingdom and Germany were therefore being bypassed not in the interest of effecting service by some alternative method where the agreed method was not possible, but for the sake of establishing jurisdiction in England. Although the means used for effecting jurisdiction in England purported to find justification in the Brussels Convention's rule of strict chronological precedence and in its interest in seeing all related actions tried together, in truth such means subverted the principles of that Convention: for precedence was achieved only by taking an a priori view of where it was convenient for the litigation to be conducted. Moreover that view was taken in the absence of the defendant, who, because it was served before it even had a chance to address the court on the manner of its service, had the question of chronological precedence decided in its absence (otherwise than in the normal way mandated by the service conventions in force between the states concerned). The court's rationale for taking such action was a view as to where the litigation could best be canalised; whereas the Convention dictates other rules for deciding such questions. The devices sought were not therefore a means of finding a level playing field, but were designed to subvert the agreed principles by which the United Kingdom and Germany regulated service of process and jurisdiction.
In our judgment there cannot be a good reason for ordering service in England by an alternative method on a foreign defendant when such an order subverts, and is designed to subvert, in the absence of any difficulty about effecting service, the principles on which service and jurisdiction are regulated by agreement between the United Kingdom and its convention partners. This is not a matter of mere discretion, but of principle."