England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th February 2004

Mr Justice David Steel:

Introduction

1. The Claimant ("Marconi") is an English company. It changed its name from GPT International Limited in December 1998. The Defendant ("Panin Bank") is an Indonesian bank. It has no place of business within this jurisdiction. Marconi claims damages against Panin Bank for breach of contract in respect of the latter's failure to honour its obligations as a confirmer of a Letter of Credit. Marconi alleges that Panin Bank wrongfully failed to accept drafts properly drawn upon it and presented to it under the terms of that credit.
2. In this application Panin Bank applies: -

i) To set aside the order of Andrew Smith J dated 16^th May 2003 permitting Marconi to serve the claim form on Panin Bank out of the jurisdiction.

ii) To set aside the order of David Steel J dated the 12^th June 2003 permitting the Claimant to serve the claim form on the defendant at the London Offices of Messrs Thomas Cooper and Stibbard, Panin Bank's solicitors.

iii) To set aside the service of the claim form on Panin Bank.

iv) For a declaration that, in all the circumstances of the case, this court has no jurisdiction over Panin Bank in respect of the subject matter of this action.

3. Marconi resists the application on the basis that it has a good arguable case that the English court has jurisdiction and that England is clearly the most convenient forum for the determination of the claims.

Background

4. Marconi is a manufacturer of telephone equipment. Pursuant to a sale contract concluded in 1996, Marconi agreed to supply telephone equipment and services to an Indonesian company called PT Prismasentra Agung ("the Buyers"). The total contract price was for $14,221,972.60 fob UK port, to be shipped from a UK airport or seaport to Singapore. The price was expressed to be payable by means of Letters of Credit, 60 days from date of shipment, such credits to be established two weeks prior to the commencement of deliveries for the subsequent 3 month period.
5. The sale contract further provided that such letters of credit "shall be established and advised through Standard Chartered Bank, 25 New London Bridge House, London SE1 9TB ("SCB") to GPT upon contract signature". The payment for the equipment would be "upon presentation of … documents at the counters of the advising bank". Clause 23 of the sale contract stipulated that its "validity constitution and performance.… shall be governed by English law."

The Letter of Credit

6. In accordance with the terms of the sale contract, the Buyers established various Letters of Credit, including two relating to the final call-off of 7,500 units. The first, which related to 3,000 units, was paid. The second, and final, Letter of Credit was issued in respect of the remainder (4,500 units) of the call-off. It is this second, and final, Letter of Credit ("the L/C") which is the subject of these proceedings.
7. The L/C was issued by Hastin Bank, another Indonesian bank, on the application of the Buyers and it was duly advised to Marconi in this country by SCB London by telex dated 27^th March, 1997 at the direction of Hastin Bank. The relevant terms of the L/C were as follows: -

" TO : STANDARD CHARTERED BANK. LONDON

ATTN : L/C DEPT

FM : HASTIN BANK, H.O., JAKARTA

WE OPEN USANCE IRREVOCABLE CREDIT AVAILABLE BY NEGOTIATION OF BENIFICIARY'S DRAFT AT 60 DAYS AFTER AWB AND OR B/L DATE DRAWN ON US FOR 100 PCT OF THE INVOICE VALUE INDICATING CREDIT :

……..

ISSUE DATE: MAR.27, 1997

EXPIRY DATE: APR.21, 1998 IN BENEF'S COUNTRY

APPLICANT: PT. PRIMASENTRA AGUNG

WISMA TAMARA LT.2, SUITE 1102

JAKARTA SELETAN.

BENEFICIARY: GPT INTERNATIONAL LTD

EDGE LANE, LIVERPOOL L7 9NW, UNITED KINGDOM

L/C AMOUNT: GBP.3,307,500.00 CIF

SHIPMENT: PARTIAL ALLOWED

TRANSHIPMENT: ALLOWED

PORT LOADING: UNITED KINGDOM AIRPORT AND OR SEAPORT

PORT DESTINATION: SINGAPORE AIRPORT AND OR SEAPORT

DESCRIPTION OF GOODS: PAYPHONES AND EQUIPMENT

COUNTRY OF ORIGIN: UNITED KINGDOM

DOCS REQUIRED:

SIGNED COMMERCIAL INVOICE

PACKING LIST IN THREE FOLDS

ORIGINAL MASTER AIRWAY BILL

CERTIFICATE OF ORIGIN

INSURANCE CERTIFICATE

OTHER CONDITIONS:

THIS CREDIT REQUIRES CONFIRMATION BY PANIN BANK, JAKARTA AND CONFIRMATION FEE FOR APPLICANT'S ACCOUNT.

THE ADVISING BANK IS REQUIRED TO NOTIFY THE BENEFICIARY WITH ADDING THEIR CONFIRMATION.

THE AMOUNT OF EACH DRAFT MUST BEENDORSED ON THE REVERSE OF THE CREDIT BY THE NEGOTIATING BANK.

INSTRUCTION FOR NEGOTIATING BANK:

- UPON RECEIPT OF DOCUMENTS BY US IN FULL COMPLIANCE WITH THE CREDIT TERM AND CONDITIONS. AT MATURITY DATE WE SHALL REMIT THE PROCEEDS IN ACCORDANCE WITH NEGOTIATIONS BANK'S INSTRUCTION.

WE HEREBY AGREE WITH DRAWERS, ENDORSERS AND BONAFIDE HOLDERS OF DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL BE HONOURED AND THAT DRAFTS ACCEPTED WITHIN THE TERM OF THIS CREDIT WILL BE DULY HONOURED AT MATURITY:

THIS CREDIT IS SUBJECT TO THE UCP FOR DOCUMENTARY CREDIT 1993 RE VISION, ICC PUBLICATION NO.500".

8. Panin Bank's confirmation was added to the credit by telex dated 1^st April 1997 addressed to SCB with the request:

"PLEASE ADVISE BENEFICIARY ACCORDINGLY".

The credit was also amended that same day to provide that the Beneficiary's draft should be drawn on Panin Bank and that the documents were to be sent to Panin Bank in Jakarta.

The Claims

9. The first and second shipments, respectively of 1000 and 500 units of telephone equipment from the final call under the sale contract, were shipped by sea to Singapore for delivery to the buyer. Marconi drew two drafts on Panin Bank which, together with the other documents stipulated in the credit, were presented on its behalf to Panin by SCB which, it is alleged, acted as Marconi's collecting agent. These documents were sent on about 23^rd December 1997 and on 16^th January 1998 respectively and were received by Panin Bank in Indonesia a few days later.
10. It appears, that on receipt of these documents, Panin Bank passed them on to Hastin Bank which rejected them as not conforming to the documents required by the credit. In turn Panin Bank also refused to take up the documents or accept the two drafts, which had been drawn upon it, adopting the reasons for rejection advanced by Hastin Bank. It is accepted that the reasons given by Hastin Bank for rejecting the documents are, to put it no higher, arguably unjustified. By way of example, the credit described the Beneficiary as "GPT International Limited, Edge Lane, Liverpool L7 9NW United Kingdom" whilst the documents referred to "GPT International Limited Payphone Systems, Edge Lane, Liverpool L7 9NW", a difference characterised by Hastin Bank as a discrepancy.
11. The various discrepancies were rejected by SCB on Marconi's behalf as unjustified. But Panin Bank maintained its refusal to pay. Hastin Bank, in the meantime, became insolvent. Indeed it is notable that shortly after the rejection of the documents, both the Buyers and Hastin Bank asked for the balance of the sale contract, and also the credit, to be cancelled because of the rapidly deteriorating economic situation in Indonesia.
12. Aside from contending that the documents were not discrepant, SCB further asserted on Marconi's behalf that Panin Bank, as the confirming bank, was responsible for communicating discrepancies under Article 14 (G) (i) of the UCP to SCB from whom it had received the documents. An opinion supporting this interpretation of Panin Bank's obligations as a confirming bank was given by the ICC UK Committee on 7^th June 1997. Panin Bank has refused to accept this opinion.
13. Marconi has been paid for these two consignments by its Credit Insurers. These proceedings have been brought in Marconi's name for the benefit of such insurers.
14. After correspondence and discussion failed to resolve the situation, a statutory demand was then issued against Panin Bank in this country and, upon its failure to comply, a winding up petition was presented against it. Panin Bank disputed the jurisdiction of the Companies Court to wind it up. Panin Bank retained Messrs Thomas Cooper and Stibbard for that purpose. Thereafter, Panin Bank, it was alleged, removed its only asset from the jurisdiction, which was said to have consisted of a credit balance with HSBC. In any event, the petition was dismissed by consent in March 2003.
15. It was following such dismissal that this action was commenced in which the claim is for £I,102,500.

Permission to serve out

16. The basis of the successful application to serve proceedings out of the jurisdiction pursuant to CPR 6.20 was formulated in various ways: -

a) The contract between Panin Bank, as confirming bank, and Marconi, as beneficiary, was made within the jurisdiction.

b) The contract was made by SCB London who was Panin Bank's agent for the purpose of advising the confirmation to Marconi.

c) The credit was governed by English law.

d) The failure to honour the credit constituted a breach of contract within the jurisdiction.

17. Panin Bank's response in short is that the credit was governed by Indonesian law not English law and, further, that by virtue of Indonesian law, all three of the alternative grounds cannot be made out either.

Governing Law

18. In the light of this summary of the issues, it is obviously convenient to start with the question whether there is a good arguable case that the contract is governed by English law rather than Indonesian law (the only viable alternative): Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC.438.
19. Of course the primary question is what is the governing law of Panin Bank's confirmation albeit it is common ground that the same system of law must govern the co-existing contracts between the issuing bank and the beneficiary, between the issuing bank and the confirming bank and between the advising bank and the beneficiary. However, in common with most letters of credit, the credit does not contain a proper law or jurisdiction clause. Moreover, the UCP makes no provision as to how the system of law governing the credit is to be determined.

The Rome Convention

20. The issue is to be determined by reference to the Rome Convention. The relevant article is Article 4: -

"1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.

5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country."

21. It was Panin Bank's submission that the presumption in Article 4 (2) inevitably let to the conclusion that the contract is governed by the law of the place where the confirming bank was situated i.e. Indonesia. In support, the bank relied upon a passage in Dicey and Morris 13^th Ed. Para 33-304.

"Thirdly, where the correspondent bank confirms the credit, an independent contract arises as between the bank and the seller (beneficiary). At common law, this contract was held to have its closest and most real connection with the country where the branch of the bank at which payment was to be made to the seller was situated. The same view has been expressed, obiter, as to the position under the Rome Convention. That view is supported by the fact that the characteristic performance remains that of the bank, either because the bank is providing a banking service or because it is critically central to a letter of credit that the bank undertakes to pay the seller (beneficiary) on presentation of conforming documents. The presumption in Article 4 (2) of the Convention therefore refers to the law of the country in which the branch (the relevant place of business) of the bank where payment is to be made is situated. Again it is most unlikely that, in relation to this contract, there would be circumstances justifying displacement of the presumptively applicable law in favour of the law of another country, pursuant to Article 4(5) of the Rome Convention."

22. In support of this passage, particular reliance was placed by Panin Bank on the decision of Mance J in Bank of Baroda v Vysya Bank [1994] 2 Lloyd's Rep.87. In that case the relevant credit, issued by an Indonesian Bank, was confirmed by the London Office of the claimants. Since the performance characteristic of Bank of Baroda's contract with Vysya was the addition and honouring of its confirmation of the credit in favour of the sellers, the presumption contained in Article 4(2) was accordingly that the contract between Vysya and the Bank of Baroda was governed by English law. In turn this led to the conclusion that, to avoid the governing law varying as to whether one was looking at the position of the issuing bank or the confirming bank, the appropriate application of Article 4 (5) resulted in the conclusion that the contract between Vysya and the buyer was governed, not by Indian law the country in which the banking facility had been provided, but English law.
23. As put by Mance J in his judgment: -

"It follows in the present case, looking at the position of the Bank of Baroda in relation to the confirmation given to Grenada, that the performance characteristic of the Bank of Baroda's contract with Vysya, however made, was the addition and honouring of its confirmation of the credit in favour of Grenada. That performance was to be effected through the Bank of Baroda's City of London office viz "a place of business other than its principal place of business" and so by the expressed terms of Article 4(2) the presumption is that the English law governs the contract between Vysya and the Bank of Baroda."

24. The position in the present case is of course that SCB did not confirm the credit. Does this affect the position bearing in mind that:

i) SCB advised Marconi both of the issuance of the credit (by their letter dated 27^th March) and of its confirmation (by their letter dated 1^st April), both as required under the credit.

ii) The credit was available by negotiation and SCB were contemplated by the credit as the (or one of the) negotiating banks. Although SCB did not in the event negotiate the credit, it acted as collecting bank in checking and forwarding the documents and requesting payment to their own London account.

iii) Panin Bank undertook to reimburse SCB if SCB negotiated the documents.

25. In short, it was contemplated that the credit would be communicated in this country and become effective here, that the documents would be presented here and that payment would be here. It does not seem to me to be a matter of great significance in considering the application of Article 4 taken as a whole that SCB did not add its confirmation. The availability of SCB as a negotiating bank would give rise to the same closeness of connection with England. The performance characteristic in those circumstances would remain the provision of the banking service in the form of payment on presentation of non-discrepant documents. Given the availability of negotiation in that form, it would be contrary to the requirement of avoiding the governing law being dependant on the mode of negotiation chosen to contemplate that a different law would govern in the event that negotiation did not take place.
26. Thus, whilst Article 4 (2) might still lead to the presumption that the contract is most closely with Indonesia (being the country where the party who was to effect performance which was characteristic of the contract was situated), there is a good arguable case in my judgment that the application of Article 4 (5) would lead to a disregard of that presumption since the circumstances as a whole demonstrate that the contract was more closely connected with England.
27. Such would probably have been the outcome at common law. For instance, in Offshore International SA v Banco Central SA [1976] 2 Lloyd's Rep. 402 [1977] 1 WLR 399 the relevant letter of credit had been issued by a Spanish bank although opened and advised (but not confirmed) by a New York bank. Payment was to be made in US dollars against documents presented in New York. Ackner J summarised the position as follows: -

"The contest here is between New York law and Spanish law. What are the relevant factors in favour of each? As regards New York, the credit was opened through a New York bank; payment was to be made in US dollars. Further, such payment was only to be made against documents presented in New York. In favour of Spanish law being the proper law, is the fact that the letter of credit was opened by a Spanish bank, the 1^st defendants.

Thus, on the side of New York are all matters of performance, whereas, in relation to Spanish law, Spain and a Spanish bank was the source of the obligation. In my judgment, it is with New York law that the transaction has its closest and most real connection. Moreover, … I am satisfied that Mr York was correct in his contention that very great inconvenience would arise, if the law of the issuing bank was to be considered as the proper law. The advising bank would have constantly to be seeking to apply a whole variety of foreign laws. Indeed it is very difficult to follow exactly what would flow from Mr Alexander's submission, if the advising bank was (as was not in this case) to confirm the letter of credit."

28. In Power Curber International Ltd v National Bank of Kuwait SAK [1981] 1 WLR 1233 (C.A.), the claimant, a company based in North Carolina, contracted to sell machinery to buyers in Kuwait. At the request of the buyers, the defendant bank issued an irrevocable letter of credit to a North Carolina bank in favour of the claimant. Against this factual background the Court of Appeal held that it was the law of North Carolina with which the contact had its closest and most real connection being the place where payment was to be made against presentation of documents. Lord Denning observed that Offshore International SA and Banco Central SA was rightly decided and could not be distinguished on any valid grounds. Lord Justice Griffiths put the matter in this way at p.399: -

"In my view the proper law of the letter of credit was the law of the State of North Carolina. Under the letter of credit the bank accepted the obligation of paying or arranging the payment of the sums due in American dollars against presentation of documents at the sellers bank in North Carolina. The bank could not have discharged its obligation by offering payment in Kuwait. Furthermore, the bank undertook to reimburse the advising bank if they paid on their behalf in dollars in America. In Offshore International SA and Banco Central SA … Mr Justice Ackner held that the place at which the bank must perform its obligation under a letter of credit determine the proper law to be applied to the letter of credit. In my view that case was correctly decided."

29. These two decisions were of course reached before the implementation of the Rome Convention. However, the proper approach to the issue, in circumstances where the letter of credit has not been confirmed by the advising bank, was revisited in Bank of Baroda v Vysya Bank (supra). Mance J in an obiter passage at p.93 stated: -

"The fact that the credit was to be confirmed by Bank of Baroda City of London branch highlights the need for Article 4 (5) and its applicability in this case. But I should not be taken as suggesting that the conclusion would be any different if the credit had been an unconfirmed credit to be opened and advised on Vysya'a behalf in London through National Westminster or Bank of Baroda city branch available for negotiation here. I agree with the editors of Dicey and Morris that the application that the law of the place of performance would in such a case still be likely to be to result, by application of Article 4 (5), as it did apply common law principles…"

30. I find that the claimants have made out a good arguable case that the contract between the confirming bank (Panin Bank) and the beneficiary (Marconi) was governed by English law since a chosen method of performance was by way of negotiation of the documents at the offices of the advising bank in London with payment in sterling. Any other conclusion would give rise to the very great inconvenience contemplated by Ackner J. This conclusion cannot be affected by the fact that, in the event, the documents were not negotiated by the advising bank but were forwarded to the confirming bank as a collecting bank with the request that payment be effected in London.
31. As I understand it, if that conclusion be correct, it is common ground not only that there is a serious issue to be tried as regards the conformity of the documents but also that the defendants have not made out that the Indonesian Courts are distinctly the more appropriate forum for determining the issues. Strictly speaking this makes it unnecessary to consider the alternative paragraphs under CPR 6.20 relied upon by the claimants. But, on the assumption that I am wrong and the Indonesian law is to be treated as the governing law of the contract, I turn to consider the other grounds said to justify leave for service out of the jurisdiction.

Contract made within the jurisdiction

32. As regards the question whether the contract was made within the jurisdiction or was made by or through an agent trading or residing within the jurisdiction, the starting point is Article 8 of the Roman Convention: -

"8. Material validity.

(i) The existence and validity of a contract, or of any term of a contract should be determined by the law which would govern it under this convention if the contract or term were valid".

33. In respect of the question as to where the contract was made, the defendants rely upon an opinion of an Indonesian firm of lawyers, Messrs. Remy and Darus, to the effect that the contract was made as a matter of Indonesian law in Indonesia. This is a somewhat surprising proposition given that the opinion expressly recognises that "a legal relationship" is established if but only if the confirmation is conveyed to the beneficiary. For my part, I have difficulty in understanding why, as the opinion goes on to assert, the "General Rule of Legislation for Indonesia" Chapter 18 (which provides "the form of legal action decided by the court will be in accordance with the laws and legislation of the country or place where the legal act took place") nonetheless leads to the conclusion that the contract is not made at the place where (and at the time when) the confirmation was duly conveyed. Thus, if it had been material, I would have accepted that there is a good arguable case that Indonesian law is no different from English law in this respect: see Jack Documentary Credits 3^rd Ed. para 2.11.

Contract made by agent trading or residing within the jurisdiction

34. As regards the question whether SCB was an agent of Panin Bank in advising confirmation of the contract, this of course is well established as a matter of English law: see Bank Melli Iran v Barclays Bank 1951 2 Lloyd's Reps 362. The opinion of the defendant's Indonesian lawyer seeks to draw distinction between a middleman (who is an agent) and a correspondent (who is not). The advising bank was categorised as a correspondent. The distinction is not enlarged upon. Again I regard it as very surprising that, as a matter of Indonesian law, SCB is to be treated as merely a conduit or post office if that be the concept leading to categorisation as a correspondent. I am not persuaded that Indonesian law is different from English law in this respect. In short, if material, I would have accepted that there remains a good arguable case for service out on this ground.

Breach occurring within the jurisdiction

35. As regards the fourth ground relied upon to serve out, namely that the failure to pay out under the letter of credit amounted to a breach occurring within the jurisdiction, the Indonesian lawyers emphasise that the obligation to pay was on Panin Bank who was resident in Indonesia and the decision to refuse to pay was taken in Indonesia. But it does not necessarily follow it seems to me that the breach did not occur in England. I agree with the claimants that it must be extremely doubtful whether it was open to Panin Bank to effect payment in Indonesia. On the face of it, they were required to pay in London whether as a consequence of negotiation or, as here, as a consequence of the request of SCB made for payment in London as, it is alleged, a collecting bank. These considerations are not dealt with in the opinion of the Indonesian lawyers and I conclude that there also remains a good arguable case for service out on this ground even if, contrary to my earlier finding, Indonesian law is the governing law.
36. Of course, if Indonesian law is the governing law, this in turn would have some bearing on the question whether this jurisdiction was an appropriate forum. But the primary issues turn on an analysis of the documents (which are all in English) as against the terms of the UCP for documentary credits. There is little, if any, scope for witness evidence of fact. Any expert evidence is likely to be more readily available in this country rather than in Indonesia. The provisions of UCP are expressly incorporated in the credit (and in any event are apparently incorporated by Indonesian Law). Where, as it follows, the competing fora have domestic laws which are substantially similar in all material respects, the governing law is a factor of little significance in determining the appropriate forum.
37. In this regard it is also appropriate to take into account the evidence of delay in the Indonesian courts. The evidence adduced by Marconi asserted that "it is quite usual for cases to exceed 10 years from commencement in the District Court to a decision of the Supreme Court, and indeed, for the Supreme Court to remit the entire case back to the District Court for re-hearing." There was a late response from Panin Bank to the effect that the policy of the Indonesian courts is to achieve a much shorter timetable. However, it is clear that the volume of business (or a shortage of judicial manpower) renders this policy difficult to implement.
38. Whilst it is invidious to draw comparisons as to matters of relative quality of procedure and experience of the competing courts, it is legitimate to have some regard to potential delays of this magnitude, not least in a claim involving a letter of credit the defences to which can fairly be categorised as unconvincing. Accordingly even if Indonesian law governs the credit, it is not shown that Indonesia is distinctly the more appropriate forum for the determining issues relating to it.

Alternative Service

39. I turn now to the challenge to the order permitting alternative service on Messrs.Thomas Cooper and Stibbard. The basis of the leave that was granted was as follows: -

"As an alternative to serving out of the jurisdiction, I ask the courts permission to serve these proceedings together with a copy of this witness statement and a copy of the order upon Messrs Thomas Cooper and Stibbard solicitors who represented Panin Bank in the winding up proceedings. …. If service were to be effected by DX I would submit that the documents would be deemed to be served on the seventh day after closing the document exchange. Service in this way in accordance with rule 6.8 would save considerable time and expense in a situation where the solicitors are clearly fully conversant with the issues in this case and where the solicitors continue to act on behalf of Panin Bank in relation to the costs of the winding up proceedings."

40. In a supplementary statement the claimant's solicitors have set out in some detail the procedure under Indonesian law for service in that country (which is not controversial) adding: -

"It is anticipated that the procedure for service in Indonesia will take at least one year during which time there will be no prospect of the claimant being able to enforce its claim against the defendant".

41. The defendants argue that these considerations do not constitute "good reason" for permission to serve by an alternative method under CPR 6.80 (1). In that regard particular reliance was placed on a passage in the judgment of the Court of Appeal in Knauf UK Gmbh v British Gypsum Ltd [2002] 1 WLR 907: -

"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."

42. I am not persuaded that much assistance is to be derived from that case where the enthusiasm for speed arose from a desire by the German claimant to avoid the process of service under the Hague Convention (or under the bilateral convention between the United Kingdom and Germany) which might take up to some 3 months during which period there was a risk that the proposed German co-defendant would institute its own proceedings in Germany and thus gain priority under Article 21 of the Brussels's Convention.
43. The essence of the decision of the Court of Appeal is to be found in paragraph 59 of the judgment: -

"In our judgment there cannot be a good reason for ordering service in England by an alternative method on a foreign defendant if such an order subverts, and is designed to subvert in the absence of any difficulty about effecting service, the principles upon which the service and jurisdiction are regulated by agreement between the United Kingdom and its convention parties. This is not a matter of mere discretion, but of principle."

44. Here there is no question of the claimant seeking to steal a march on Panin Bank. Whilst it is pointed out in the evidence filed by Panin Bank that part of the elaborate procedure laid down for service of proceedings in Indonesia has a 14 day time limit, there is no challenge to the assertion emanating from Marconi that, overall, the process of service would take "at least one year". Given the contemplated length of proceedings in that jurisdiction referred to earlier in this judgement, this assertion strikes me as entirely plausible. As I understood the thrust of the defendant's submission, it was to the effect that good reason for alternative mode of service could not be established absent it being shown that service out of the jurisdiction was impractical. This strikes me as an attempt to reintroduce the equivalent provisions of the rules in force prior to the implementation of CPR. In my judgment the discretion afforded by the new rules is much broader than that.
45. Whilst it cannot be said that service was impractical in Indonesia, it would involve very extensive delay in a claim which was already stale. Furthermore the inference I draw, given the apparent lack of merit in the defence, is that delay was the sole aim of the defendant rather than any genuine desire to ensure the proprieties of service where met. It is notable that Panin Bank had appointed Messrs Thomas Cooper and Stibbard in September 2002 in response to service of Marconi's petition out of the jurisdiction by courier post to their principal office some time in August. Albeit the petition was dismissed, it does not appear to be in issue that Thomas Cooper and Stibbard were still actively involved in the proceedings on the question of costs. In all these circumstances I regard the claimants as having established a sufficiently good reason to justify the alternative mode of service.