Wilmot v Maughan

I propose, for convenience, to call the parties the husband and the wife although they were divorced many years ago.

The husband appeals from Mostyn J’s order of 13^th January 2016 by which he dismissed the husband’s deemed application to set aside all orders made in the proceedings since 2010. The substantive proceedings are financial remedy proceedings in which the wife has made a number of enforcement applications.

The husband was never required to make a formal application. The issue was merely recorded in the judge’s order of 29^th September 2015 in the following terms:

The result of the procedure which was adopted is that the grounds on which the husband relied have had to be determined from his submissions. This has provided scope for a lack of precision and has had the consequence that there has been some variation in the way in which his case has been formulated. At its highest, as set out in the judgment below, the husband’s case has been that the orders providing for email service were null and void, having been made without jurisdiction because of the terms of the 1965 Convention. As alternatively formulated, at least during the hearing of this appeal, the orders were not void but were defective and should be set aside largely, it would seem, because the potential impact of the 1965 Convention was not, or does not appear to have been, expressly addressed at the time when the email service orders were made.

It is relevant to note that the husband did not and does not challenge the court’s substantive jurisdiction. The sole focus of his case has been on the service of process. Further, it has been on the service of applications (and other documents) made in the course of proceedings and not of initiating process.

I have considerable sympathy for the judge. The issue as to service was raised in the course of a hearing dealing with a number of other applications. He then sought to deal with it in an expeditious manner. He listed the case for one day, no doubt because of pressure of other work, and, if the experience of this court provides any guide, he was then confronted with a diffuse range of arguments. However, although informality in procedure can, of course, be appropriate, in my view it was not in this case. This was because of the nature of the husband’s application, which was said by him to raise an issue of fundamental importance to the validity of the proceedings and which, if successful, would result in the court setting aside orders up to five years after they had been made.

Further, as Mr Bowen QC frankly accepted during the course of the appeal, the judge was not addressed on the jurisdiction he was being asked to exercise, either as to its scope or as to any principles applicable to its exercise. From exchanges with Mr Bowen during the course of the hearing, it is clear that this omission was apparent to the judge as he referred to the husband’s “belated attack” in contrast to the authorities relied on by Mr Bowen in which there had been a “timely challenge” to the decision. As a result, he requested Mr Bowen to deal with this point in further written submissions which he gave the parties the opportunity to provide after the hearing.

Despite this request, Mr Bowen did not engage with this point in his supplementary written submissions. The judge was not, therefore, referred to any authorities on the circumstances in which a court will permit a party to apply to vary and set aside an order, such as: Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies)[2014] 1 WLR 795 (“Tibbles”).

The judge, nevertheless, dealt with the power which he considered he was being asked to exercise. In his view it was a discretionary power, under the Family Procedure Rules 2010 (“the FPR”) r.4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). Further, it seems to me that, by the way he addressed the exercise of his discretion, the judge had the principles identified in Tibbles in mind. He referred, for example, to the need for the party to have acted promptly in making the application. For reasons set out in his judgment, the judge declined to exercise his discretion in the husband’s favour and dismissed the application.

I have spent some time dealing with this point at the start of this judgment because, if the judge’s decision not to exercise such power as he might have had to vary or discharge the orders has not been successfully challenged in this appeal, the scope of the appeal would be very much narrower. In particular, there would be no need to consider in detail the points raised about service and the 1965 Convention.

The parties were married in 1991. They separated in the late 1990s. Although the Decree Absolute was made on 20^th September 2001, the financial remedy proceedings were not finally resolved until a consent order dated 27^th June 2007.

In or about October 2011, the wife started enforcement proceedings in respect of the husband’s obligations under the 2007 order. Those proceedings have been continuing since then.

It is the husband’s case that he has been resident in, and worked as an airline pilot out of, Istanbul since 2011, following his retirement from British Airways in 2010.

The husband was given permission to appeal by King LJ but, by her order dated 29th July 2016, the husband cannot seek to impugn any orders made before 1st July 2013.

Before dealing with the orders within the potential scope of this appeal, it is relevant to start the history in 2012.

On 24^th January 2012 Ryder J (as he then was) ordered the husband, who attended the hearing in person, to provide a PO Box number and address for service.

In Ryder J’s order of 29^th May 2012 it is recorded that the husband informed the court “that he will obtain a post office box number in Somerset”. The husband had applied to set aside or vary all orders made in the family proceedings on the basis, it appears, of fraud, misrepresentation or material non-disclosure. His application was dismissed by Ryder J who was satisfied that there was not even a prima facie case demonstrated by the husband.

In Ryder J’s next order, of 15^th November 2012, it is recorded that the husband had failed to provide a PO Box number for service. It would appear that, in response to the husband’s failure to comply with this provision, an order for alternative service was made. It was provided that the husband would be deemed to have been served personally with any document or order if they were sent by email to either of two specified email addresses.

The provision in respect of email service was repeated in the order of 27^th February 2013 made at a hearing attended by the husband in person. In his judgment, Ryder J states that the husband is resident in the Isle of Man.

On 25^th July 2013 Lloyd LJ refused the husband’s applications for permission to appeal from the orders of 27^th June 2007, 29^th May 2012 and 27^th February 2013.

Turning now to the orders potentially within the scope of this appeal.

The first order in the husband’s sights is that made by Bodey J on 6^th December 2013. This was an order, made without notice to the husband, freezing his assets and, in the usual way, requiring him to provide information about them. There was an express provision in the order permitting the wife to serve the order (and other documents) on the husband by email, and also by first class post to an address of his in the Isle of Man. As this was a without notice order, the husband’s complaint could only be in relation to service upon him subsequently.

On the return date of the freezing injunction, 12^th December 2013, the husband was represented by counsel. Bodey J adjourned the matter for fuller argument on 19^th December 2013, because there was insufficient court time to do justice to the issues arising from the parties’ skeleton arguments. Meanwhile, he continued the freezing order with some modifications. He expressly permitted service of the order, and any related application for a civil restraint order, on the husband by email and also by two other means, namely by post to the Isle of Man address and on Osbornes solicitors (who acted for the husband for a period at around this date).

On 19^th December 2013, the matter came before Mostyn J, the husband being represented by the same counsel as the week before. On that day, the judge continued the freezing order with further modifications. The order includes the following in the preamble:

The order again permitted service of the order, “and any further documents and orders in these proceedings and any related orders in the application for a Civil Restraint Order” by email and also by first class post to the Isle of Man address and on Osbornes solicitors.

On 24^th February 2014, Moor J refused to deal with a without notice application made by the wife through counsel and directed that notice of the application must be served by sending it to Osbornes and to any email address used by the husband to communicate with the Clerk of the Rules and to another two email addresses set out in the order.

The matter came back before Moor J on 28^th February 2014. Counsel for the wife appeared again but there was no appearance by or on behalf of the husband. The order recited that the court was satisfied that the husband had had sufficient notice of the application by service on him at his email address(es) and to his solicitors, Osbornes. It appears that the husband had applied by email on 27^th February 2014 for the hearing to be adjourned and that was refused by Moor J (paragraph 1 of his order). The order listed the application for directions to be given for the appointment of a receiver of the husband’s assets for hearing on 20^th March 2014, and the application for an extended civil restraint order for a hearing on 15^th April 2014, both subject to confirmation with the Clerk of the Rules. Directions were given for the provision of certain financial information concerning the husband by two banks, by a pension company, by HMRC and by the husband’s employer, Turkish Airlines. The husband was also ordered to provide written authority to the wife’s solicitors for them to obtain information about the Isle of Man property. The order expressly provided, in paragraph 12, that the wife “may” serve the husband at various email addresses and by first class post at two addresses in England and one in the Isle of Man.

On 20^th March 2014, the husband did not appear. The freezing order was continued and the application for a receiver adjourned to 15^th April 2014. The order included a provision as follows:

On 15^th April 2014, there was, again, no appearance by the husband in front of Mostyn J when he dealt with the application for a receiver. The order recited that the court was satisfied that he had full notice of the application, and that no application for an adjournment in proper form supported by a statement of evidence had been made by him. In the body of the order, the application made by the husband by letters dated 10^th and 11^th April for an adjournment was refused as totally without merit. His applications issued on 18^th March 2014, to strike out the freezing order and to suspend/stay all orders in the case, were also dismissed as totally without merit. The court appointed a receiver over his assets and made a number of other orders including that the receiver was to file a preliminary report focussed on the prospect of realising assets so as to enable the payment to the wife of money due to her by way of arrears of child maintenance and costs. Again, there was express provision as to service which was permitted to several email addresses and by post to the three addresses already specified earlier in the proceedings.

On the same day, the court being satisfied that the husband had full notice of the application for an extended civil restraint order as well, the husband was restrained from making applications concerning the proceedings without permission from Mostyn J or another High Court judge. The now familiar provision as to email and postal service was also made in this order.

The husband filed an appellant’s notice, sealed on 15^th May 2014, in the Court of Appeal seeking to appeal all orders made by Mostyn J on 15^th April 2014. He included in his grounds of appeal a complaint that he was “never served Notice of Hearing under court rules and only informed of the date by the listing office just 10 days before the hearing, leaving insufficient time to obtain and brief counsel, or any other lawyer, as I was based in Istanbul and on service in various locations in the far east”.

The appeal process ended on 6^th March 2015 with permission to appeal being refused by Lewison LJ as totally without merit. In his reasons, Lewison LJ referred to the fact that the order of 27^th February 2013 “specifically permitted service by email”.

On 27^th November 2014, Mostyn J dealt on paper with an application by the receiver for authority to draw down monies from the husband’s pension fund. The familiar provision for service of the order to be effected by email and to the three postal addresses was included.

At the hearing on 8^th July 2015, the husband was represented by Mr Bowen. Mostyn J gave directions leading to the hearing on 29^th September 2015. It was at that hearing that he identified the issue to be determined, as referred to in paragraph 3 above, which was determined following a hearing on 21^st December 2015.

The Notice of Appeal was filed on 11^th February 2016.

Before turning to the judgment under appeal, I propose to set out some relevant elements from the history.

First, the husband failed to provide an address for service in the United Kingdom as required by FPR r.6.26. For those periods when he had no solicitor acting for him he was required to give, as his address for service, an address in the UK at which he resided or carried on business: r.6.26(2). If he had no such address, he was required to provide some other address in the United Kingdom for service: r.6.26(3). The husband did not do so.

Secondly, the husband failed to provide a PO Box number and address for service as required by the order dated 24^th January 2012. At the hearing on 29^th May 2012 the husband, as recited in the order, indicated that he would obtain a PO Box number in Somerset. As recorded in the order dated 15^th November 2012, the husband had failed to provide a PO Box number for service. This last order was the first which provided for service on the husband to be effected by email. This was clearly in response to the husband having failed to comply with the rules or the order of 24^th January 2012.

Thirdly, the husband’s case, as advanced in the Skeleton Argument, is that “he has been protesting about bad service/lack of notice and a failure to effect valid service under the rules since at least 2010”. This is relevant both because the primary route for the merits of an order to be challenged is by way of appeal and because it is relevant to whether the husband has acted promptly.

The husband has, indeed, sought to appeal a number of orders. He was refused permission to appeal from Ryder J’s orders of 27^th June 2007, 29^th May 2012 and 27^th February 2013 by Lloyd LJ on 25^th July 2013. Although not relevant in this appeal, because of the dates of Ryder J’s orders, it is difficult to envisage how the husband could have sought successfully to challenge those orders at first instance in relation to the decision by Mostyn J now under appeal in reliance on a point which could have been raised in the course of his previous applications for permission to appeal.

On 6^th March 2015 Lewison LJ refused the husband permission to appeal from the orders made by Mostyn J on 15^th April 2014 as being totally without merit. These included the appointment of a receiver, an order which has been of central importance to the husband’s application. As referred to above, Lewison LJ specifically addressed the husband’s assertion in his appeal, that he was “never served Notice of Hearing under court rules”, by referring to the fact that the order of 27^th February 2013 “specifically permitted service by email”. It is, again, difficult to see how the husband could successfully, in effect, seek to re-open his appeal from the orders of 15^th April 2014 by making an application at first instance based on a point which could have been and, at least in some form, was raised in his unsuccessful appeal. This would conflict fundamentally with the principle of finality in litigation.

Fourthly, the husband only seeks to challenge the orders permitting email service. A number of the orders which the husband challenged provided for service not only by email but also by other methods, including by first class post to an address in the Isle of Man and to addresses in Somerset and on his solicitors. One of the addresses in Somerset is where the husband’s family live. During the course of the hearing, Mr Bowen accepted that orders permitting service at addresses in the UK were valid. He also informed the court that the husband acknowledged that he would be in the UK “roughly” one weekend per month.

Mr Bowen also told us that the husband had informed his family that any documents received at their address (in Somerset) were to be returned. This instruction to his family appeared to be based on the husband considering that he could dictate to the court (and to the wife) how documents could be served on him. This is to betray a fundamental misunderstanding of the court’s powers and of the husband’s own relationship with the court and with the court’s orders. It is not for the husband to decide whether he will permit service to be effected on an address in the UK if the court has made an order permitting such service. If the court directs or permits service to be effected on a specific address then, absent an application to vary that provision or an appeal, service on that address will be good service.

How the husband has, in fact, been served was not investigated during the course of the hearing before Mostyn J. However, there is at least the possibility that the husband’s argument about email service was irrelevant because service had been effected by an alternative method. This provides a further example of the problems caused by the way in which the husband was permitted to advance his case.

Finally, there were specific features which made the husband’s indiscriminate attempt to set aside all orders, on the basis that email service was defective or insufficient, difficult to sustain. For example, he had no prospect of being able to set aside the freezing order of 6^th December 2013 on this basis because it was made expressly without notice to him. It is also difficult to see how this contention could succeed in respect of the subsequent freezing orders which were made, on 12^th and 19^th December 2013, at hearings at which he was represented. Any issue as to notice could and should have been raised at those hearings or, if it was considered that such had been wrongly addressed, by way of an appeal. Further, I do not see how the husband could seek, in 2015, to challenge the court’s determination, as recorded in the order of 28^th February 2014, that he had had sufficient notice by service on his solicitors. The same applies in respect of the order of 15^th April 2014.

The hearing on 21^st December 2015 proved insufficient so the judge gave both parties the opportunity to provide additional written submissions. As referred to above, one of the issues on which he asked for assistance was the effect of the husband not having made, what the judge described as, “a timely challenge” to the service decisions/orders. Mr Bowen did not deal with this point substantively in his further submissions, submitting that this was a factual issue beyond the scope of the hearing which was concerned “purely” with a point of law. In his longer written submissions, which were not read by the judge, Mr Bowen said that this point was “presumably engaging some form of judicial discretion to refuse any relief sought by” the husband. Indeed, it was.

The judgment below is reported: Maughan v Wilmot (No 2)[2016] 1 WLR 2200, [2016] 2 FLR 1349. I propose, therefore, to set out only a relatively brief summary.

The judge noted that orders are binding until varied or set aside (paragraph 7). He considered that the court had power “to vary, revoke, suspend or rescind an order” under FPR r.4.1(6) and section 31F(6) of the 1984 Act (paragraph 8). This was a discretionary power. In the exercise of this discretion, Mostyn J decided that “the husband has by his conduct forfeited the right to advance any argument concerning the validity of the orders which have been in place for such a long time” (paragraph 10).

This conclusion appears to have been based significantly on it being too late to challenge the orders. The husband had not made his application promptly. Further, even if the husband had previously protested about service, his protests “ring very hollow” given his own extensive use of email (paragraph 9). In addition, a previous judgment showed that the husband “was fully aware of the applications that were then before the court” (paragraph 9). The previous judgment is also reported: Maughan v Wilmot[2015] 1 FLR 567.

Although it was not, therefore, necessary for him to do so, the judge went on to address the husband’s case as to service. That case is summarised in paragraph 13 of the judgment. In essence, it was contended that the court had no power to order service out of the jurisdiction by alternative means because FPR Part 6, Chapter 4 contained no provision permitting such service. When the 1965 Convention applied, service had to be effected by one of the means permitted by that Convention, as set out in r.6.45(1), which did not include email. Accordingly, the order of 27^th February 2013 and all subsequent orders permitting service by email were “null and void”.

The judge rejected that argument. In his view, the advent of email, in particular, had transformed the manner in which service could be effected. Given the easy availability of accessing emails, it was “inapt to be talking about a document being served and received in any particular place at any particular time” (paragraph 19). FPR r.6.1 applied to all the rules about service, both in and out of the jurisdiction, and permitted the court to authorise email service on a party out of the jurisdiction. He referred to Cecil v Bayat[2011] 1 WLR 3086 as having demonstrated that, in proceedings governed by the Civil Procedure Rules 1998 (“the CPR”), the court had power to order service by alternative means even when the 1965 Convention applied; and to Abela v Baadarani[2013] 1 WLR 2043 as having lowered the bar to the making of such an order.

Accordingly, the orders permitting email service had not been shown to be wrong. At its highest, the apparent failure to inquire why use of the 1965 Convention was not practicable was a “procedural lapse and certainly not any kind of fatal defect” (paragraph 29).

Finally, alternatively, the husband had voluntarily accepted delivery within Article 5 of the 1965 Convention. There was no proper evidence as to Turkish law. As English law permits service by email, the evidence did not establish that email service was incompatible with Turkish law.

The parties’ respective submissions to this court focused on the issue of service. In their written submissions they did not engage at all with the issue of whether the judge was right to decide that he had power to set aside the orders challenged by the husband. It became apparent at the hearing that neither party was in a position to address the court on this point. Fortunately, it was not necessary to request further submissions because, as we made clear, we did not consider it necessary to determine this issue for the purposes of determining this appeal. I address it briefly below.

As for the second aspect, namely whether the judge was wrong in the exercise of his discretion, this features in the first ground of appeal (although, I would observe in passing, that it did not feature at all in the “List of Issues” to be determined in this appeal as prepared by Mr Bowen). The parties’ submissions also dealt with the issue, albeit only briefly.

I propose, after setting out the parties’ submissions on all matters, first to determine this aspect of the appeal before going on to consider the issue of service because, I repeat (as set out in paragraph 10 above), if the husband’s appeal from the judge’s discretionary decision is not successful, it would not be necessary to deal with the rest of the appeal.

I now turn to the husband’s case.

The first ground of appeal is that the judge was wrong, when exercising his discretion under FPR r.4.1(6) and/or section 31F(6) of the 1984 Act, not to set aside the orders which included provision for service by email.

Mr Bowen submitted that, when deciding whether to set the orders aside, the judge should have applied the guidance as restated by Lord Neuberger in Thevarajah v Riordan[2016] 1 WLR 76 and, if he had, that he would have set aside all the orders. In the course of his judgment (paragraph 15), Lord Neuberger quoted from Mitchell v News Group Newspapers Ltd[2014] 1 WLR 795 (paragraph 44) which had, in turn, cited the judgment of Rix LJ in Tibbles (paragraph 39(ii)):

Mr Bowen, it appeared, sought to rely on each of the matters referred to under (i), (ii) and (iii). Accordingly, there were said to have been a material change of circumstances, a mistake or mistakes of fact and/or manifest errors in respect of each order. In fact, as formulated in the first ground of appeal, this argument stretched to include the contention that the “assumption of each judge”, that service by email on the husband’s solicitors had been valid, was wrong because the “relevant mandatory rules which did not allow such service (had) been ignored”. Given that the rules (FPR r.6.35) expressly enable the court to order service of documents within the jurisdiction by an alternative method, this would have been a hopeless argument, and it was not pursued by Mr Bowen in his submissions.

The change/mistake/error relied upon, and which should have led the judge to set the orders aside, effectively comprised the same point, namely “the failure of each judge to appreciate that the mandatory service rules in Part 6, Chapter 4” applied. It was, Mr Bowen submitted, a manifest mistake that “service by email was allowed” and that this case “was not realised to be a case where Part 6 Chapter 4/Hague processes applied”. Mostyn J should have found that these factors constituted a sufficient change of circumstances to justify setting aside the orders “made without jurisdiction”.

The judge was also wrong, it was submitted, to determine that the husband’s conduct had been such that his application should be dismissed. Contrary to the judge’s conclusion, that the husband had delayed in taking any point about service by email, the husband had in fact been protesting about email service for many years. Even if Mostyn J was right that the husband was “fully aware of the applications”, this did not justify his decision. The need for finality was outweighed by the interests of justice.

There would seem to be at least an element of inconsistency in the way in which the husband’s case is advanced because, in addition to submitting that these points were overlooked (when the orders for email service were made), Mr Bowen also contends that the husband has “consistently protested” about service by email and “how emailing an overseas resident in Turkey was against the court rules”. This seems, to me, to be the very point on which Mr Bowen has based his submissions.

In addition, Mr Bowen submitted that the husband had not delayed because he only got the transcript of the 27^th February 2013 hearing in November/December 2013 and he appealed as soon as Mostyn J refused his adjournment application on 15^th April 2014. This relates only to the husband’s appeal which was determined by Lewison LJ on 13^th April 2015 and does not assist him more generally.

The other grounds of appeal address the issue of service save for one which asserts that the judge’s decision was procedurally unfair and demonstrated apparent bias. This last ground featured little during the hearing. It appears to be based principally on a submission that the judge should have read the extensive (22 pages) additional written submissions provided by Mr Bowen after the hearing and not just the limited (four pages) submissions as directed by the judge (see paragraph 9 of the judgment) and that the judge should not have added a reference to Turkish law to his judgment after the draft had been disseminated and before it was handed down. These points are without substance and do not begin to demonstrate bias or unfairness.

As to the issue of service, the husband advanced four grounds of appeal, which overlap:

The judge should have determined that the 1965 Convention was engaged and was the mandatory and exclusive process that English law required to be adopted;

FPR r.6.1(b) did not give the court a discretion to cure the defect in service or, if there was such a discretion, it was unlawfully and unfairly exercised;

The court was wrong to conclude that the failure to comply with the 1965 Convention was a procedural error and was curable;

The judge was wrong to find that there had been proper service under the 1965 Convention by application of Article 5;

It was not always easy to follow Mr Bowen’s wide-ranging submissions on this topic. At its highest, and as set out in the order of 29^th September 2015, the husband’s case has been that the provisions of the 1965 Convention were “mandatory and exclusive” and, consequently, that the orders permitting service to be effected by email were made “without jurisdiction”. An alternative formulation, as referred to above, has been that the 1965 Convention provides the primary method of service and there was nothing in the present case which would justify service by any other means, in particular because there had been no attempt to seek to comply with its provisions.

Mr Bowen submitted that the FPR cannot be used “to side-step the requirements of an otherwise binding International Treaty” and that the 1965 Convention “cannot be trumped by domestic law”. Taken literally, these submissions would appear to overlook the manner in which treaties are given effect under domestic law. However, during the hearing it became clear that Mr Bowen accepted that the 1965 Convention is only given domestic effect by and through the provisions of the rules (the FPR and the CPR). It has no other separate domestic effect.

It is applied through Part 6, Chapter 4 of the FPR which, he submitted, contains no provision, and therefore provides no jurisdiction, for documents to be served by email on a party resident in Turkey. In contrast to CPR r.6.37(5)(b)(i), Chapter 4 contains no provision for service by an alternative method.

Further, in his submission, the fact that the husband might have had notice was not significant because there is a difference between notice and service. Service is a fundamental requirement and in his determination the judge failed to follow the guidance given in Knauf UK GmbH v British Gypsum Ltd[2002] 1 WLR 907 and Cecil v Bayat.

Mr Bowen submitted that FPR r.6.1(b) did not give the court power to “cure the defect in service”. To use that provision to authorise service by email would be improperly to side-step, or override, the requirements of FPR r.6.43(3), r.6.45(1) and PD6B which, he reiterated, are a mandatory and exclusive procedural code.

Further, if r.6.1(b) did give the court such a power, it should only be exercised in exceptional circumstances and when attempts have first been made to serve by, what Mr Bowen called, the primary process, namely in accordance with Chapter 4. Accordingly, the court should have concluded that the defect in service was not curable because there had been no attempt to comply with the rules. In support of this submission, Mr Bowen relied on a raft of authorities including Vinos v Marks & Spencer Plc[2001] 3 All ER 784; Godwin v Swindon BC[2002] 1 WLR 997; and Anderton v Clwyd CC[2002] 1 WLR 3174. He also relied on certain amendments made to the rules as of 7^th December 2015, which, for example, replaced “electronic communication” with email but did not amend FPR Part 6, Chapter 4.

Next, Mr Bowen submitted that the judge was wrong to conclude that the apparent failure to inquire into the use of the 1965 Convention was “at its highest a procedural lapse”. It was more substantive than this. The Convention provided the primary method of service and the use of alternative means of service, if permitted too easily, would undermine the Convention: Deutsche Bank AG v Sebastian Holdings Inc and Vik[2014] EWHC 112 (Comm).

The judge’s conclusion that the husband had voluntarily accepted email service was, Mr Bowen submitted, also flawed because this was a finding of fact in respect of which there had been no evidence.

On this last point, Mr Bowen also addressed the position under Turkish law. The husband’s position in respect of Turkish law is not entirely clear because, in one part of his written submissions, Mr Bowen stated that Turkish law does permit service by email if “domestic law conditions are satisfied”. However, he also appeared to submit that email service is not permitted under the 1965 Convention because it is not permitted under Turkish law. In addition, he submitted that Turkish law does not permit direct service by post/mail on the husband, Turkey having objected to the application of Article 10.

Mr Bowen also submitted that the onus was on the wife to prove Turkish law and to establish that the method of service used by her was compliant with the local law.

In summary, Mr Bowen submitted that on each occasion when service failed to comply with the 1965 Convention, as applied by the FPR, service had been (i) invalid and (ii) was not capable of cure, meaning that (iii) “all defectively served process has to be re-served and the matters re-argued”. The judge was, therefore, wrong to refuse to set aside the relevant orders because all proceedings in this case subsequent to email service had been a nullity.

Mr Bowen referred to other authorities, some of which I deal with below.

Mr Swift’s submissions were succinct. He submitted that the husband has been engaging in meritless litigation games given his active engagement with the proceedings and his own very extensive use of emails.

Mr Swift submitted that the judge was right to refuse to set aside the orders. There was no justification for doing so. Even if the court should not have made orders for email service, orders for service had been made which had resulted in the husband having notice of and engaging in the proceedings. The judge was right to say that the husband “was fully aware of the applications”. In any event, there had been no change of circumstances or factual mistake or other reason justifying the exercise of the power to vary or set aside orders. Mr Swift relied on Arif v Zar[2012] EWCA Civ 986 and Bill Kenwright Ltd v Flash Entertainment FZ LLC[2016] EWHC 1951 (QB).

On the question of service, Mr Swift submitted that the rules must be interpreted in accordance with the overriding objective. FPR r.6.43(3) and r.6.45, through their use of the word “may”, are permissive not mandatory. The court has power to order alternative service, including by email, out of the jurisdiction. This, he submits, is clear from FPR r.6.43(4) and r.6.1(b).

In order to deal with this issue, I need first to refer to the legal framework in respect of: (a) briefly, the court’s power, at first instance, to vary or discharge orders made previously in the proceedings; and (b) the principles applicable to the exercise of any such power.

(a) As referred to above, although this issue was not addressed by the parties we did not consider it necessary to request them to do so as the point does not require determination. However, as the judge decided that he had power to vary or discharge orders pursuant to FPR r.4.1(6) and section 31F(6) of the 1984 Act, I consider it appropriate to make brief observations with the obvious caveat that these are made in the absence of submissions.

Questions about the extent of the High Court’s power to vary or revoke orders were raised, but not decided, in Re H (Child)[2016] EWCA Civ 988 (paragraphs 9-14) and in Re F (Children)[2016] EWCA Civ 1253 (paragraphs 26-27). The issue was also considered by Sir James Munby P, sitting at first instance, in S v S[2015] 1 WLR 4592. One of the principal questions raised relates to the effect of section 17 of the Senior Courts Act 1981 which provides that: “Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise”. The FPR were made under a number of statutory provisions but not, it appears, section 17(2).

I would also note, in passing, that section 17 deals with applications after any cause or matter or any issue has been tried. This can be contrasted with FPR r.4.1(6) (and the equivalent CPR r.3.1(7)) which gives the court power to vary or revoke orders made pursuant to a power “under these rules”. Although, in Roult v North West Strategic Health Authority[2010] 1 WLR 497, Hughes LJ (as he then was) said that r.3.1(7) was “not expressly confined to procedural orders” (paragraph 15), it, and FPR r.4.1(6), clearly apply to such orders.

In addition, I would note that section 31F(6) of the 1984 Act applies only to the “family court” and not to the High Court. Accordingly, to be within its scope, a judge would have had to be sitting in the family court.

However, for the purposes of this judgment, I will assume that the judge was right to decide that he had power to vary or revoke both procedural and substantive orders made previously in these proceedings.

(b) What principles apply to the exercise of such a power? It was made clear in Tibbles that any application to vary or revoke an order (under CPR r.3.1(7)) must be made promptly. In paragraph 42, Rix LJ said:

As referred to above, Rix LJ’s judgment was cited with approval in Mitchell v News Group Newspapers (paragraph 44). Lord Dyson MR, giving the judgment of the court, observed that: “If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR r.3.1(7)”. He reiterated that such an “application must be made promptly” as had been “emphasised” in Tibbles.

These passages were approved by the Supreme Court in Thevarajah v Riordan. Lord Neuberger pointed out that “none of this was revolutionary” by reference to the Court of Appeal’s decision of Collier v Williams[2006] 1 WLR 1945 and, the then, Patten J’s decision of Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen[2003] EWHC 1740 (Ch).

The question, therefore, on this appeal, is whether the judge wrongly exercised his discretion in refusing to vary or revoke any of the previous orders which permitted service by email.

Although not expressly mentioned I consider, as referred to above, that the judge probably had, what I will call, the Tibbles principles in mind when deciding to dismiss the husband’s application. He had referred to the issue of promptness (“belated attack”) during the course of the hearing. The judgment takes up this issue and refers to the fact that the orders had been in place “for such a long time” (paragraph 10).

Mr Bowen sought to deal with the issue of delay principally by submitting that the husband had, in fact, “consistently protested” about service by email and “how emailing an overseas resident in Turkey was against the court rules”. In my view, this compounds the lack of promptness in the husband’s application rather than justifying the delay because, as referred to above, these are the very matters on which Mr Bowen’s case is based. There might not have been any specific reference to the 1965 Convention, but the substance is the same.

In my view the judge was plainly right to decide that it was too late to apply to vary the service orders on the grounds advanced by Mr Bowen. None of the matters advanced by Mr Bowen provided any justification for the lack of promptness.

Further, there is nothing in this case which would cause it to be other than, what Lord Neuberger described as, “a “normal” case” (paragraph 19 in Thevarajah). In other words, one in which the exercise of the jurisdiction should be confined to the matters identified in paragraph 44 of Mitchell (see paragraph 59 above), which I now propose to address.

I do not consider that the matters relied on by the husband constitute a change of circumstances. On the husband’s case, the circumstances have remained the same. There was also no mistake in the formulation of the order. Further, the facts had not been misstated. Again, they remained the same. The husband’s case, at its highest, raises legal issues or arguments, not facts, which, he contends, were not previously expressly raised or considered by the court.

There is some consideration in Tibbles as to the potential impact of misstated arguments. In paragraph 39(iv) Rix LJ says:

The arguments now advanced by Mr Bowen were clearly “knowable”. Accordingly, even if arguably applicable in this case, they do not provide any sufficient justification for re-opening past orders.

In summary, having regard in particular to the lack of promptness (and the husband’s own extensive use of email), I have reached the clear conclusion that Mostyn J was right to dismiss the husband’s application. The court had made orders for service by alternative methods. The husband was either represented or was found to have received notice of the applications and hearings pursuant to service by one or other of those methods. To adopt Rix LJ’s expression, there is nothing “out of the ordinary” in the present case which outweighs the interests of finality in litigation (paragraph 39(vii)). Indeed, in my view, the husband’s application as made to Mostyn J could well be described as having been wholly without merit.

It is not, therefore, necessary for me to address the arguments advanced by Mr Bowen as to the effect of the FPR and the 1965 Convention. Another reason why this might not be required is that I question whether the provision for service by email in this case has ever been within the scope of r. 6.43. I am not persuaded that service by this method constituted service out of the jurisdiction rather than an alternative form of service in the jurisdiction having regard to the husband’s continuing connections with this jurisdiction. The orders for service, including by email, were clearly designed to ensure that he had notice despite his having failed to provide an address for service in the jurisdiction, as required by r. 6.26, and to comply with the order of 24^th January 2012. It is not difficult to see them as alternative forms of service within the jurisdiction. Further, and importantly, the Convention only applies when a document is being transmitted “for service abroad” (Article 1(1)). I am, equally, not persuaded that, in this case, service by email constituted the transmission of a document for service abroad in a 1965 Convention country.

However, having regard to Mostyn J’s judgment and the submissions made to us, I propose to consider some of Mr Bowen’s arguments because my conclusions on those fortify my conclusion that the judge was right to dismiss the husband’s application.

Most of the authorities to which we were referred were dealing with the provisions of the CPR. In many respects those rules are similar to the FPR but in others they are not. Importantly, for example, no permission is required under the FPR before documents are served out of the jurisdiction. Also, as relied on by Mr Bowen, there is no provision in Part 6, Chapter 4 which mirrors that contained in CPR r.6.37(5)(b)(i).

However, despite these differences, I propose, first, to consider the position under the CPR largely because, as I have said, most of the authorities to which we were referred were not family cases.

The central issue raised by Mr Bowen is whether the provisions of the 1965 Convention, as implemented through the rules in England and Wales, are mandatory and exclusive. In other words, if service is to be effected abroad, must the provisions of the Convention be applied or can service by an alternative method be ordered?

The answer to this question is provided by Cecil v Bayat. Although the views expressed by Stanley Burnton LJ were obiter, they were after full argument and they have been consistently regarded as establishing that service by alternative means not within the scope of the 1965 Convention is permitted under our domestic provisions. He said, paragraph 65:

Stanley Burnton LJ found support for his conclusion in Knauf UK GmbH v British Gypsum. In that case Henry LJ, giving the judgment of the court said (paragraph 47):

Returning to Cecil v Bayat, Stanley Burnton LJ also considered, in general terms, when service by alternative means might be justified (paragraph 68):

This decision has been regarded as authoritative in a number of cases including BNP Paribas SA v Open Joint Stock Co Russian Machines[2011] EWHC 308 (Comm) (paragraph 132); Bacon v Automattic Inc[2012] 1 WLR 753 (referred to in the White Book 2017 paragraph 6.15.7); Deutsche Bank AG v Sebastian Holdings Inc and Vik[2014] EWHC 112 (Comm) (paragraphs 26-27); Bill Kenwright Ltd v Flash Entertainment FZ LLC[2016] EWHC 1951 (QB) (paragraph 54, referring to Knauf and Deutsche); and Societe Generale v Goldas and Others[2017] EWHC 667 (Comm) (paragraph 49(9)) which also refers to Bank St Petersberg OJSC v Arkhangelsky[2014] 1 WLR 4360. In the last case Longmore LJ expressed the view that: “Although the Supreme Court (in Abela) pointed out that nothing they said would necessarily apply to Hague Convention cases, it would be surprising if there could never be good reason for alternative service in such cases” (paragraph 26).

In the absence of a need to decide the point expressly, I do not consider that it would be helpful to add to what was said in Cecil v Bayat. Further, for the reasons set out below, I consider that what was said in that case is equally applicable to the FPR, to which I now turn.

The key question is whether there is a provision in the FPR which, as with the CPR, gives the court power to order service out of the jurisdiction by an alternative method. In my view, there is and, for the reasons summarised below, I agree with Mostyn J that it is r.6.1(b).

The service provisions are set out in Part 6 of the FPR. It is divided into four chapters. Chapter 1 is headed “Scope of this Part and Interpretation”. Rule 6.1 is headed, “Part 6 rules about service apply generally” and provides:

This Part applies to the service of documents, except where –

Chapter 2 applies to the service of an application for a matrimonial order or a civil partnership order in the jurisdiction. Chapter 3 applies to the service of other documents in the United Kingdom.

Chapter 4 applies to service out of the jurisdiction. Rule 6.43 contains “general provisions” including:

Rules 6.43 and 6.45 are permissive (“may”) and not mandatory. They do not provide that service must be effected by one of those methods. Further the words, “in any court order”, in rule 6.43(4) clearly contemplate that an order might be made in respect of service and which provides for an alternative method of service. As was pointed out in Cecil v Bayat (paragraph 60) and in Abela (paragraph 32) an order is only required when service is sought to be effected by a method which is not permitted by the law of the country in which the document is to be served. If it is permitted, it is already authorised by the rules.

The only restriction is that no court order “authorises or requires any person to do anything which is contrary to the law of the country where the application form, or other document, is to be served”: r. 6.43(4).

On this last point, contrary to Mr Bowen’s submission, there is a difference between a method which is not permitted and one which is “contrary to the law”. This is clear, for example, from Abela in which Lord Clarke said (paragraph 24):

Mr Bowen is right to point out that Chapter 4 has no provision equivalent to CPR r.6.37(5)(b)(i). However, it would be surprising, and, in my view, inconsistent with FPR r.6.43(4), if the FPR were interpreted so as to preclude the court having the power to order service out of the jurisdiction by alterative methods. This would create a severe restriction on the court’s powers which would be likely to cause real injustice in many cases. It would also be in contrast to the position under the CPR and without any suggested reason for there being this difference.

In Abela, Lord Clarke accepted that the parties were right to concede, and the judge had been right to find, the existence of such a power under the CPR (paragraph 20):

It is not necessary to imply such a power in the FPR because, in my view, it is provided by the general terms of r.6.1(b).

I should add that this conclusion is not, as Mr Bowen submitted, to use this provision to “override” another provision in the rules. I accept that, as with CPR r.6.1(b), it would clearly not be appropriate to use this wide power to direct something which another rule expressly, or in substance, forbids: see, for example, cases (decided in the context of limitation): Vinos v Marks & Spencer Plc (paragraph 20); Godwin v Swindon BC (paragraph 50); and Anderton v Clwyd CC (No 2) (paragraph 24). Nor is it, to address an alternative formulation of this submission, to interpret the rules contrary to their plain meaning: see Vinos v Marks & Spencer (paragraph 20).

In both Godwin v Swindon BC and Anderton v Clywd CC (No 2) the Court of Appeal accepted that CPR r.6.1(b) could be used to dispense with service. In the former, Pill LJ (paragraph 79) agreed with “the effect of rules 6.1 and 6.9” as expressed by May LJ (paragraph 50), namely that they did not “extend to enable the court to dispense with service” in a manner contrary to r.7.6(3). In the latter, Mummery LJ, when giving the judgment of the court (which included Lord Phillips MR and Hale LJ, as they then were), referred to “the power to dispense with service of a document under rules 6.1(b) and 6.9”, paragraph 24 (my emphasis).

To interpret FPR r.6.1(b) in the same way is consistent with its meaning and consistent with the rules including r.6.43 and r.6.45. Further, it is to interpret and apply the rules consistently with the overriding objective. The overriding objective requires the court to have “regard to any welfare issues involved”. It is not difficult to think of cases in which the absence of the power in family cases to order service out of the jurisdiction by alternative methods would undermine and conflict with this objective. To have reached the conclusion that there was no such power, in contrast to the position under the CPR, would, in my view, have required very clear expression given the significant consequences for the effective administration of justice. There is no such expression and, for the reasons I have given, I have reached the opposite conclusion.

There are a few other aspects of Mr Bowen’s submissions which I consider it appropriate to address.

A number of the cases to which Mr Bowen referred were dealing with retrospective applications when a party had not effected service in accordance with the rules, often in the context of the expiry of the limitation period. In addition to those referred to above, they include: Kuenyehia v International Hospitals Group Ltd[2006] EWCA Civ 21; Olafsson v Gissurarson (No 2)[2008] 1 WLR 2016; Amalgamated Metal Trading Ltd v Baron[2012] CLC 920; and Bethell Construction Ltd v Deloitte & Touche[2011] EWCA Civ 1321. In my view, they do not provide any guidance of significance to the present case because they were not dealing with the effect of the court having made an order for alternative service.

Mr Bowen also made submissions as to the steps which a party would have to take, and the court would have to consider, before making an order for alternative service. These included a party first seeking to effect service by a method within the 1965 Convention. This submission was based in part on the distinction identified in Anderton v Clywd CC (No 2), when a party applies to dispense with service of a claim form, between a party who has not even attempted to effect service by a permitted method and one who has made an ineffective attempt in time. He also sought to gain support for this submission from Deutsche Bank v Sebastian Holdings Inc and Vik and Shiblaq v Sadikoglu [2004] 2 All ER (Comm) 596. Again, those authorities were dealing largely or exclusively with applications seeking retrospective validation or dispensation.

In my view, it would not be helpful to add to the general observations made in Cecil v Bayat (paragraph 68) about the circumstances in which the court might make an order for alternative service save that the court will also clearly need to take into account the manner in which and the place in which any order may need to be enforced. If the proceedings are, in effect, purely domestic, the 1965 Convention may well be viewed as having a more limited role.

I would, however, emphasise that this is not to say that the existence of the 1965 Convention is not significant when the court is deciding whether to make an order for alternative service out of the jurisdiction. It clearly is. The first step is always for the court to decide whether service needs to be effected out of the jurisdiction. The Convention only applies if a document is to be transmitted abroad for service. If it does and the Convention applies, consistently with Cecil v Bayat, this should be viewed as the primary route by which service should be effected but, I acknowledge, that urgency (as in an urgent application on notice being required) will often be a feature of family cases, especially those involving children. In addition, I would point out that the 1965 Convention does not apply if the address of the person to be served is not known (Article 1(2)).

Given my decision on the first issue, as referred to above, I do not propose to consider the impact of the 1965 Convention in any more detail. It would raise a number of questions which are not suitable for determination in this appeal.

The first would be whether email service comprises service “out of” the jurisdiction and, as referred to above, service in a 1965 Convention state. There are a number of questions about email service which were raised by the judge (paragraphs 19 and 20) and which are also considered in the Practical Handbook on the Operation of the Service Convention 4^th Ed (2016) paragraphs 97/98 and Annex 8. As asked in the Practical Handbook (paragraph 98), what is “sufficient to trigger the application of the Convention?”. These questions were not the subject of submissions during the course of this appeal. I should add that Mr Bowen referred to this publication in his additional written submissions to Mostyn J, but this court was not taken to it. I have, therefore, only considered it for the purposes of this case since the hearing.

Further, I have concerns that Mr Bowen’s survey of the international jurisprudence was limited. He referred to Societe National Industrielle Aerospatiale v US District Court for the Southern District of Iowa (1987) 482 U.S. 522 and two Canadian decisions Metcalfe Estate v Yamaha Motor Canada Ltd(2012) 356 DLR (4^th) 58, by the Alberta Court of Appeal, and Khan Resources Inc. v Atomredmetzoloto JSC(2013) 361 DLR (4^th) 446, by the Ontario Court of Appeal. However, the Practical Handbook deals more generally with developments in common law and civil law jurisdictions and appears to refer to other decisions which have been made permitting email service on parties resident in 1965 Convention States in the USA (Annex 8, paragraphs 58/60), Australia (Annex 8, paragraphs 61/63) and Canada (Annex 8, paragraph 66).

In addition, it is clear that the Canadian authorities to which Mr Bowen referred were based significantly on the circumstances of those cases. In the first the court was dealing with the effect of an order which had given permission for service “pursuant” to the Convention. Not surprisingly, it was decided that this order required service to be in accordance with the Convention. Further, under the relevant local rules, unless the court otherwise ordered, service out of Alberta “must” be in accordance with the Convention or in accordance with the relevant local law. The same applies to the latter decision. The rules applicable in Ontario provided that service out of the jurisdiction “shall” be served either through the central authority or in a manner permitted by Article 10 of the 1965 Convention.

In saying the above, I appreciate, of course, that the Practical Handbook refers to the “exclusive character” of the Convention (paragraph 51). However, at present, this is not the approach taken in England and Wales and it would require a significant shift to exclude, in particular, email or other electronic forms of service on a party resident in a 1965 Convention State. I emphasise that I am only referring to this Convention and that nothing in this judgment affects the application of the Service Regulation (Council Regulation (EC) No 1393/2007).

I propose, finally, to deal with two smaller points made by Mr Bowen. The first is his submission that an applicant for alternative service must adduce evidence that the method being sought is permitted under the relevant local law. This is unsustainable because, as referred to above, if the method sought is permitted by the local law, no application is necessary. However, I propose, nevertheless, to consider the authorities on which Mr Bowen relied in support of this point.

Mr Bowen relied on Re J (Reporting Restriction: Internet: Video)[2014] 1 FLR 523, in which Sir James Munby P commented that the court would “expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country …” (paragraph 63). This observation has to be seen in context, namely that he was dealing with an application for an injunction and needed to be satisfied that the person to be injuncted was “amenable to the court’s jurisdiction” (paragraph 52). This required them to have been properly served (paragraph 54). Secondly, his observation was not in the context of an application for service by an alternative method but in the context of establishing whether proceedings had been served in accordance with the rules (paragraph 59).

The same applies in respect of Arros Invest Ltd v Rafik Nishanov [2004] EWHC 576 (referred to by the wife) in which the issue was whether service had been effected by a method permitted under Russian law. My view is also not affected by the case to which the President refers in paragraph 63, Bacon v Automattic Inc. In that case Tugendhat J, suggested that, when dealing with an application for alternative service, that claimants should adduce evidence of whether the proposed method of service (in that case email) was permitted by the law of the country where the claim form was to be served because, if it was, service by an alternative method would be unnecessary.

The final point is Mr Bowen’s submission that the court can only order service by email in accordance with the provisions of FPR PD 6A. It is clear that PD 6A supplements the provisions of the rules dealing with methods of service expressly permitted by the rules. FPR r.6.23 includes email service as a permitted method of service provided this is done “in accordance with Practice Direction 6A”. It does not constrain the circumstances in which the court can make an order for alternative service by email.

It will be apparent that I have not thought it necessary to deal with the effect of Abela. As Mostyn J noted, Lord Clarke said that the “most important” purpose of service is “to ensure that the contents of the document served … is communicated to the defendant” (paragraph 37). Lord Sumption said that service is “in reality no more that notice of the commencement of proceedings” (paragraph 53). I agree that these observations are of general application. However, the Supreme Court made it clear that they were saying “nothing about the position where there is a relevant convention or treaty” (paragraph 34). Lord Clarke refers to both Knauf and Cecil v Bayat but to distinguish those cases because, in Abela, there was no risk of subverting the provisions of a convention or treaty (paragraph 34). Accordingly, as I have said, I do not consider it necessary to address that case for the purposes of this judgment.

I am aware that I have not dealt with all Mr Bowen’s submissions nor have I dealt with all the matters addressed in Mostyn J’s judgment. I have not done so because I do not consider it necessary to do so for the purposes of this appeal.

I conclude by saying that, for the reasons given above, I propose that the appeal is dismissed.

I agree.

I also agree.