ON APPEAL FROM THE HIGHT COURT OF JUSTICE
SIR EDWARD EVANS LOMBE (Sitting as a High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
| ALBERT JOHN MARTIN ABELA
ALBERT J. M. ABELA SRL
ALBERT J. M. ABELA CATERING AND INTERACTIVE SYSTEMS
|- and -
Mr Clive Freedman QC & Mr Tim Penny (instructed by PCB Litigation LLP) for the Respondents
Hearing dates: 8th & 9th November 2011
Crown Copyright ©
Lord Justice Longmore:
England the proper place
Service of the Claim Form
1) service on 22nd October 2009 on Mr Baadarani's Lebanese lawyer Mr Azoury who had a power of attorney enabling him to receive legal documents; although this form of service was not authorised by the original order of Morgan J, it was open to the judge to validate that service retrospectively because it had been service in accordance with the local law of Lebanon;
2) service pursuant to the order for alternative service made by Lewison J on 14th April 2010 on Mr Baadarani's Lebanese solicitor Mr Azoury;
3) service pursuant to the same order of Lewison J on Mr Baadarani's English solicitors.
In order to understand these contentions it is necessary to set out the facts in some detail.
"UPON the Application of the Claimants dated 14th September 2009.
AND UPON the First Claimant undertaking not to take any further steps in the Lebanese civil proceedings commenced by him in October 2003 to pursue any of the claims in the Particulars of Claim herein.
IT IS ORDERED THAT:
1. Pursuant to CPR 6.35, 6.37, paragraphs 3.1(3), 3.1(6)(c), 3.1(6)(d). 3.1(9), 3/1(15) and 3/1(16) of Practice Direction B to CPR Part 6 and CPR 6.38, the claimants have permission to serve the Claim Form, Particulars of Claim and all other documents in the proceedings upon the First Defendant at the following address, namely Ramlet El Bayda, Farid Trad Street, Bajjani Building, Bloc II, Facing Fakhreddine Lebanese Army Camp, 1st Floor ("the Address").
2. Pursuant to CPR 7.6(2) and (4), the claimants' time for complying with the requirements of CPR 7.5 is hereby extended until 31st December 2009.
3. To the extent that it is required, pursuant to CPR 6.37(5)(b), the claimants do have permission to serve the Claim Form, Particulars of Claim and all other documents in the proceedings by way of an alternative method of service, namely, by personal service by a process server or other suitable agent as soon as reasonably practicable hereafter of an untranslated (i.e., English) copy of such documents on the first defendant at the address referred to above."
The address in Farid Trad Street emanated from the claimants' Lebanese lawyer Mr Houssami who said in a witness statement of 11th September 2009 that he had made enquiries about Mr Baadarani's correct residence and could inform the court that that was his address and the place where personal service was most likely to be effected.
"1. The general power of attorney to which you refer is indeed a general power of attorney executed here in Lebanon in 2003. It enables me to represent Mr Baadarani in all litigation when he wishes me to represent him in Lebanon and is not limited to the litigation with Mr Abela. Consequently, according to Lebanese law, which is the applicable law of the power of attorney, I can use my general power of attorney only when instructed by Mr Baadarani to do so. As stated in my previous letter, Mr Baadarani has never given me such instructions. Similarly, the election of domicile by Mr Baadarani to which you refer relates only to those proceedings in which I am so authorised.
I have used the said power of attorney according to the instructions of Mr Baadarani to represent him before the courts of Lebanon both as claimant and as defendant against Mr Abela. I also coordinated the defence of Mr Baadarani in Italy in the same case brought against him by Mr Abela although without representing him there and always according to his instructions.
2. To repeat, Mr Baadarani does not wish me to represent him in the English proceedings and my general power of attorney executed in 2003 cannot be interpreted as authorising me even implicitly to represent him in the English proceedings brought against him several years after the date of the power of attorney.
3. The bundle of papers I received in my office were sent by a notary public in Beirut through a clerk of the Beirut court. I signed the acknowledgement of receipt as I would with any delivery to this firm served by a notary public in Beirut.
Article 399 and 400 of the Lebanese civil proceedings code have no application to that claim, but in any event only permit service upon a defendant's attorney if he is at the defendant's address which was not the case here.
I imagine that the issue of valid service shall be decided by the English courts though I do not know the English rules of conflict in this respect. I assume that service is ruled by Lebanese law being the law of the territory where the notification occurred. My view is that there has not been valid service according to Lebanese law.
However, I can confirm that in the light of your letter Mr Baadarani will instruct English solicitors to respond to the points raised in it within the next seven days. I trust you will consider this reasonable. Please confirm that you will await contact from them within this period (i.e. by 4 p.m. on Friday 26th February 2010) before taking any further steps in this matter."
Mr Baadarani's case has thereafter been handled by English solicitors.
"7. When the service agent/clerk was trying to serve Ahmad Baadarani on one of the addresses specified above, I received a call from his lawyer Akram Azoury who asked me if I was trying to serve Ahmad Baadarani any documents and requested that the documents are sent to his office. Mr Azoury in his capacity of Ahmad Baadarani's attorney voluntarily accepted the service of the documents; he also deliberately produced a copy of a valid, duty signed and notarized general power of attorney allowing him to represent his client Ahmad Baadarani in any claim, suit or proceeding, as plaintiff or defendant. He also signed the service letter attached to the true copy of the English claim form and other documents attached to it in his capacity of Ahmad Baadarani's attorney.
8. In other words, the service was not only made to an address where Ahmad Baadarani had elected domicile, but it was also made to a person who has the legal capacity to represent Ahamd Baadarani in any proceedings, including without limitation the English proceedings, and who did not express any reserved on the service of the documents related to such proceedings."
He then attached translations of the power of attorney and the letter of service as signed by Mr Azoury.
"6. Mr Baadarani does not wish me to represent him in the English proceedings, and under Lebanese law my general power of attorney cannot be interpreted as authorising me even implicitly to represent him in the English proceedings brought against him several years after the date of its execution.
7. The bundle of papers I received in my office on 22nd October were sent by a notary public in Beirut through a clerk of the Beirut court. I signed the acknowledge of receipt as I would with any delivery to this firm served by a notary public in Beirut.
8. I have seen the allegation in Mr Houssami's second witness statement that I positively requested these documents be served upon me. In fact what happened is that I informed him that I was not instructed by Mr Baadarani to use my general power of attorney to receive service or to represent Mr Baadarani outside the Lebanese or Italian proceedings against Mr Abela. What I said was that as a courtesy to a professional colleague with whom I work regularly, I would accept the bundle of documents pending any instructions from Mr Baadarani to accept them on his behalf, but that this could not constitute service.
9. The claimants' solicitors have referred in correspondence to Article 399 and 400 of the Lebanese civil proceedings code. These have no application to this claim for the reasons given above, but in any event only permit service upon a defendant's attorney if he is at the defendant's address which was not the case here."
"(5) Where the court gives permission to serve a claim out of the jurisdiction
(b) it may
(i) give directions about the method of service."
This authorises the court therefore to make an order for alternative service pursuant to CPR 6.15(1) and also to make such an order with retrospective effect pursuant to CPR 6.15(2). Nevertheless the exercise of this power is liable to make what is already an exorbitant power still more exorbitant and I am persuaded by Mr Greatorex that it must indeed be exercised cautiously and, as Stanley Burnton LJ said in paragraph 65 of Cecil v Bayat, should be regarded as exceptional. It would, therefore, usually be inappropriate to validate retrospectively a form of service which was not authorised by an order of an English judge when it was effected and was not good service by local law. CPR 6.40 permits three methods of service including service through the British Consular authorities and any additional method of service should usually not be necessary. The fact that CPR 6.40(4) expressly states that nothing in any court order can authorise or require any person to do anything contrary to the law of the country in which the document is to be served does not mean that it can be appropriate to validate a form of service which, while not itself contrary to the local law in the sense of being illegal, is nevertheless not valid by that law.
Validity of service on Mr Azoury
"plead and defend me before all courts of different kinds in each action for or against me, created or to be created a general power of attorney delegated to his say and act authorising him to present summons and written lists, to receive and retrieve all papers wherever they exist ."
This purely general power of attorney granted in 2003 does not to my mind mean that, without any further authorisation from Mr Baadarani, Mr Azoury is authorised formally to accept service of foreign proceedings issued in 2009. In his letter of 19th February 2010 Mr Azoury says in terms that the power of attorney enables him to represent Mr Baadarani "when he wishes me to represent him in Lebanon" and that he can use the power of attorney "only when instructed by Mr Baadarani to do so". He confirms this in his first witness statement of 20th May 2010 by saying that the power of attorney cannot be interpreted as authorising him to represent Mr Baadarani in English proceedings brought several years after the power of attorney was executed.
1) Particulars of claim containing a large number of allegations in numerous paragraphs;
2) the response pack;
3) the original application notice for permission to serve out of the jurisdiction;
4) Mr Mascarenhas's two witness statements and exhibits;
5) Mr Houssami's first witness statement;
6) counsel's skeleton argument for the hearing before Morgan J;
7) Morgan J's order as set out in paragraph 12 above; and
8) a note of the hearing before Morgan J.
Mr Mascarenhas was, of course, quite right to serve all this documentation but it is impossible to think that Mr Azoury could have sensibly read and digested it before signing for the documents. He could not, in my view, be regarded, as a result of that signature, to have formally accepted service. Nor is the fact that Mr Azoury retained the documents for 4 months before returning them a particularly surprising fact. In law he was under no obligation to return them at all.
The extensions granted by Sales J and Lewison J
Lord Justice McFarlane:
Lady Justice Arden: