Koza Ltd & Anor v Akcil & Ors

On 22 December 2017, the claimants in these proceedings issued an application seeking the following orders: first, that eight new parties be added as defendants to this claim; secondly, for permission to serve the amended claim form and amended particulars of claim in the forms attached to the application notice on the new parties; and, thirdly, that service of the application and, if permission to amend is granted, the amended claim form and the amended particulars of claim on the new parties be permitted (i) by service on the solicitors for the existing defendants in the proceedings, Mishcon de Reya LLP (“Mischon de Reya”), or, in the alternative, (ii) by postal channels on the proposed 7th defendant only and by service on Mishcon de Reya in respect of the proposed 8th to 14th defendants.

The proposed 8th to 14th defendants were directors of Koza Altin, which is the first defendant in these proceedings, and the immediate holding company of the first claimant, Koza Limited.

The proposed 7th defendant, which is known for short as the SDIF, is an organ of the Turkish State, and it has caused those individuals to be appointed as directors of Koza Altin.

Only part of the third limb of the relief sought by the application notice is before me today, namely that permission be granted to serve the application itself on the proposed eight new parties by alternative means. The grounds upon which that aspect of the relief is sought are identified in the application notice at paragraph 3, as follows:

“Mishcon acts for the 8th to 14th defendants, and in substance for the 7th defendant as well; if that is not correct, however, service via postal channels on the 7th defendant should be permitted, as it has previously accepted documents via such means.”

The application was made pursuant to CPR 6.15(1) which provides:

“Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this part, the court may make an order permitting service by an alternative method or at an alternative place.”

Since the application was issued there have been a number of developments. In addition to an exchange of correspondence and of witness statements, those developments in summary and principally are as follows.

First, three of the proposed new defendants, that is to say the proposed new defendants numbered 9, 12 and 14 have ceased to be members of the board of Koza Altin, and accordingly the application is no longer pursued so far as those three individuals are concerned.

Second, Mishcon de Reya are now instructed by the remaining proposed individual defendants, numbered 8, 10, 11 and 13 on the original list, and service on Mishcon de Reya so far as concerns those defendants has been, or will be, effected by service on that firm as the solicitors now acting for them within this jurisdiction without the need for any order.

Third, as set out in paragraph 6 of the fifth witness statement of Mr Rocher of the claimants' solicitors, dated 22 February 2018, delivery of the application notice and relevant supporting documents has been effected as a matter of fact on the SDIF, at an address in Turkey given in that paragraph of his witness statement on 3 January 2018. The relevant cover letters and proof of delivery receipts from the courier company (relating not only to delivery to the SDIF but also to the other proposed new defendants) are exhibited to that witness statement.

Mr Siward Atkins, who appeared before me for the claimants, indicated that in light of that third development he would seek permission to amend the application notice and the order sought, to seek an order in the alternative pursuant to CPR 6.15(2), which provides:

“On an application under this rule the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”

In the result, Mr Atkins proposed, first, that the court should order that service on the SDIF by service on the London offices of Mishcon de Reya should be permitted as an alternative means of service on the SDIF; secondly, that an order should be made under CPR 6.16(2) to treat the delivery of the relevant documents that has taken place at the offices of the SDIF as being good service of the documents on the SDIF; and, thirdly, an order for alternative service at the same address in Turkey, by the same means as on his clients’ evidence has already been effected to provide notification to all the proposed new defendants, namely by private courier or by post. Then, lastly, and in the course of the hearing, for an order to the effect that service on the directors of Koza Altin by service on the solicitors who now act for those directors in these proceedings, Mishcon de Reya, at the London offices of those solicitors, should be treated as service on the SDIF. The details of that last way of putting the application were not articulated in any final written form during the course of the hearing, but that was the thrust of the submission, as I understood it to be.

Neither any of the existing defendants nor any of the proposed new defendants appeared before me or were represented in front of me. However, Mr David Caplan of counsel appeared on behalf of Mishcon de Reya and made written and oral submissions on behalf of that firm.

Mr Atkins addressed first the question of whether CPR 6.15(1), and for that matter CPR 6.15(2), both of which refer, on the face of it, to a claim form, applied to the application notice in the present case, and his submissions in this regard are encapsulated in paragraphs 4 onwards of his skeleton argument.

On that first question of whether the rule applies to an application notice as well as a claim form, he referred to two provisions. First, CPR 6.2(c), which provides that an application made before action or to commence proceedings should be construed as a claim or as a claim form for the purposes of the rule. He submitted that an application to join new parties is a pre-action application against them for the purposes of the definition in CPR 6.2(c). It is made before proceedings have started, so far as they are concerned. Its purpose is to commence proceedings against them. Therefore it is a claim form for the purposes of CPR 6.15(1). Second, he submitted that, in any event, CPR 6.27 extends the application of CPR 6.15(1) to service of an application notice, and provides that CPR 6.15:

“Applies to any document in the proceedings as it applies to the claim form and reference to the defendant in that rule is modified accordingly.”

I accept those submissions, both of which seem to me to be correct, and either of which, if right, will suffice for the purposes of the submission that CPR 6.15 applies to the application notice in the present case as well as to a claim form.

Next, Mr Atkins addressed the issue of whether CPR 6.15 applies to a service out case like the present. His submissions, in summary, are, first, that it is clear that CPR 6.15 applies to a case where service out of the jurisdiction is not required, because it falls within that part of CPR 6 which applies to cases of service within the jurisdiction; and, second, that it is clear on the authorities that CPR 6.5 applies to cases where service out of the jurisdiction arises and where permission to serve out is required, and for that submission he relied principally on the decision of the Supreme Court in Abela v Baadarani [2013] 1 WLR 2043 [19] and [20].

The thrust of his argument, more fully set out in paragraphs 5 to 9 of his skeleton argument, is that, given that CPR 6.15 applies to cases involving service in the jurisdiction, and also to cases involving service out of the jurisdiction where permission to serve out is required, it would be anomalous, surprising, and without any clear logical foundation if the rule did not extend also to cases for service out where permission is not required. He relied in particular on the judgment of Lord Clarke in Abela at [20], where Lord Clarke stated that the power to apply CPR 6.15 and permit alternative service in a service out case is to be found in rule 6.37(5)(b)(i) or “is implied generally into the rules governing service abroad (because that must have been the intention of the drafter of the 2008 amendments to CPR 6)”.

Mr Atkins submits that it is unnecessary to rely upon CPR 6.37(5)(b)(i) as the source of the power to extend CPR 6.15 to cases for service out where permission is not required. It is one gateway to the exercise of that power, but it is not the only source of that power, and there is a general implication in the rules to the effect that the power can be exercised in cases of service abroad.

I think that Mr Atkins needed to make that submission, because CPR 6.37(5)(b)(i) is confined to cases where the court has given permission to serve a claim form out of jurisdiction, as the introductory words of sub-paragraph (5) make clear.

Mr Atkins also referred me to a decision of Mr David Foxton QC sitting as a deputy judge of the High Court in Marashen Limited v Kenvett Limited [2018] 1 WLR 288, as effectively following that reasoning in Abela, although the particular point that arises in this case did not arise in the Marashen case.

It seems to me that this submission is well founded also. Putting the matter shortly, and paraphrasing, I think, both Mr Atkins’ submissions and the judgments, the position seems to me that where service out is involved, what is important as a starting point is that the proceedings should be such as are capable, in accordance with the CPR, of being properly served on the proposed defendant outside the jurisdiction. That is the first requirement.

What happened in Marashen, in short, was that the master, as I read it, skipped the first stage and went straight to CPR 6.15. On appeal, the deputy judge said that that was wrong. One had first of all to work out whether service of the relevant proceedings was permitted under the rules, and then go on to the CPR 6.15 question. Exercising his jurisdiction on appeal from the master, that is the approach he followed, and he ruled that the proceedings were such as should attract permission to serve out. The deputy judge then went on to consider CPR 6.15, and decided that it was not an appropriate case for service by alternative means.

So, in short, I consider that Mr Atkins is right in saying that what one is looking at in the context of CPR 6.15 is an antecedent requirement which has to be fulfilled that the relevant proceedings can be lawfully served independently of CPR 6.15. In a case where service out is necessary but no permission is required, that requirement is satisfied at the stage when the proceedings are issued. There is no need to get permission to serve out, and therefore the proceedings are without more such as can be validly served out, so one goes straight to the question of whether the court should exercise the jurisdiction in CPR 6.15 or not.

Without reading, I hope, unnecessary extracts from Marashen, one of the cases referred to in it is Dubai Islamic Bank PJSC v PSI Energy Holding Company BSC [2013] EWCA Civ 1229 in which Gloster LJ giving the judgment of the court stated at [39] that CPR 6.15 “... is not a freestanding foundation for jurisdiction”.

So one has to have that freestanding foundation independently of CPR 6.15, but on Mr Atkins' submissions, which I accept, one has it in this case anyway because there is no need for the claimants to obtain permission to serve these particular proceedings out of the jurisdiction.

That takes one on to the question of whether, on the premise that CPR 6.15 is an available procedural route which the claimants in this case are able to invoke, the jurisdiction or power within it is one which should appropriately be exercised in the present case.

In that regard, the first issue in my judgment is to consider what legal test should be applied to that question, and so far as that is concerned, the starting point, in my view, is that this is a case to which the Hague Convention applies.

Turkey, which is the relevant state in which the proposed new defendants are based, is a signatory to that Convention, and Turkey has exercised its entitlement, in a sentence, to limit the means by which service can be effected in Turkey on Turkish parties in accordance with the Convention, to service through the medium of a state authority. That arises out of the operation of a number of articles of the Hague Convention, to which I was taken by Mr Atkins.

The relevant central authority in this particular case is the Ministry of Justice, and a document in the papers before me, which is to be found at page 469 of volume 2, states that:

“The methods of service are as follows:

If the documents and its attachments which are requested for service under the article 5/1 of the Convention are prepared in Turkish or that a translation in Turkish be attached with the original documents, the Chief Public Prosecutor's Office perform the service via post offices in accordance with our domestic law. In such a case, documents may also be served against the addressee’s will, so this method is generally demanded.

On the other hand the documents transmitted without its translation are served in accordance with Article 5/2 of the Convention. In such a case the addressee may refuse to accept the documents by reason of not having the translated documents, so in this form of service, the performance of the service is up to the addressee’s will.

In these methods of service, the Chief Public Prosecutor’s Office perform the service via post offices.”

The same document makes clear that the relevant contact details of the central authority designated by the Turkish State as the appropriate authority for the purposes of the Hague Convention, on the submissions that Mr Atkins has made to me, is the General Directorate of International Law and Foreign Relations at the Ministry of Justice, and the contact persons are Mr Abdullah Murat and Ms Gubert Altinkaynak. The languages they speak, apparently, are Turkish and English, according to the same form.

So, as I say, that is the starting point in deciding what is the relevant legal test.

Mr Atkins took me to a number of authorities in which the correct approach of the courts has been discussed. First, he took me to the detailed and helpful discussion in the judgment of Mr Foxton in Marashen. That judgment contains a discussion of the pre-Abela position, starting at [39], and a number of cases were considered by the deputy judge in that case. One of them was Cecil v Bayat [2011] 1 WLR 3086, and citation is given by Mr Foxton of passages from the judgment of Stanley Burnton LJ. Those passages include the proposition that:

“Because service out of the jurisdiction without the consent of the state in which service is to be effected is an interference with the sovereignty of that state, service on a party to the Hague Convention by an alternative method under CPR rule 6.15 should be regarded as exceptional, to be permitted in special circumstances only.”

With regard to the consideration that proceedings will come to the attention of the defendant more speedily than would be the case under the Hague Convention, Stanley Burnton LJ said: “It is in general not a sufficient reason for an order for service by an alternative method.” Stanley Burnton LJ considered that the desire for a claimant to avoid delay was, generally speaking, not sufficient, and would effectively render resort to alternative means of service essentially optional for the claimant.

Citation from the judgment of Rix LJ in the same case, considering cases where there are no bilateral treaties and there are lengthy delays, includes reference to the fact that CPR rule 6.15(1): “Expressly requires ‘good reason’ and it may be that some flexibility should be shown in dealing with such cases, especially where litigation could be prejudiced by such lengthy periods.” But going on to discuss the position where there are treaties such as the Hague Convention, Rix LJ said: “I agree that some special circumstance is needed to amount to good reason.”

The discussion by Mr Foxton of Abela says, rightly in my judgment, that the Abela case was not addressing the position which applies in a Hague Convention case, or where some other bilateral treaty applies, and that this is clear, and I agree, from, amongst other things, [33] of the speech of Lord Clarke where he referred to the fact that in cases not involving the Hague Convention or bilateral service treaties:

“... The court should simply ask whether, in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service.”

It seems to me that Lord Sumption in Abela questioned at least some of the premises of Stanley Burnton LJ’s approach. He said at [55] that although it was traditional to characterise the jurisdiction to allow service out as “exorbitant”, this “was originally based on the notion that the service of proceedings abroad was an assertion of sovereign power over the defendant and a corresponding interference with the sovereignty of the state in which process was served”, and that “This is no longer a realistic view of the situation”. Lord Sumption concluded by saying:

“It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like "exorbitant". The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum.”

Consideration of these judgments led Mr Foxton to a discussion about whether the “exceptional” test propounded by Stanley Burnton LJ needed to be qualified in the light of Abela, and that led Mr Foxton to consider a number of further cases, including the judgment of Cooke J in Deutsche Bank AG v Sebastian Holdings Inc [2014] 1 All ER (Comm) 773, and the judgment of Popplewell J in Société Générale v Goldas Kuyumculuk Sanayi and others[2017] EWHC 667 (Comm).

Ultimately, that led the deputy judge to conclude at [57] that the current state of the law in cases where the Hague Convention or some other bilateral service treaty applies is as follows:

“(i)

That exceptional circumstances rather than merely good reason must be shown before an order for alternative service other than in accordance with the terms of the treaty could be used, and

(ii)

mere delay or expense in serving in accordance with the treaty cannot, without more, constitute such exceptional circumstances.

I say “without more” because delay might be the cause of some other form of litigation prejudice, albeit such an exceptional length as to be incompatible with the due administration of justice.”

I was then taken by Mr Atkins to the decision of Mr Laurence Rabinowitz QC sitting as a deputy judge of the High Court, dated 6 October 2017, in Team Y&R Holdings Hong Kong Limited and others v Joseph Ghossoub, and Cavendish Square Holdings BV v Joseph Ghossoub [2017] EWHC 2401 (Comm). The decision of Mr Foxton in Marashen does not appear to have been cited in that case, although it had been handed down some months earlier in July 2017 (and may also not have been cited in some of the other cases which post-dated it).

The position was again discussed by Mr Rabinowitz, and his conclusions were set out at [137] and [138]. At [137] he said that in Hague Convention and other bilateral treaty cases the test remains whether there is “good reason”, and that he did not regard the judgment of Popplewell J as having been intended to suggest that any different test to applies in such cases. He then went on to say:

“This is not to say that the Court’s approach in such cases will be precisely the same as those in which the Hague Convention or a bilateral treaty have no application: on the contrary, as reflected in Popplewell J’s analysis in SocGen it is clear from Abela and ors v Baadarani and Anor[2013] UKSC 44, Knauf UK GmbH v British Gypsum Ltd.[2001] EWCA Civ 1570 and Bayat and Ors v Cecil and Ors [2011] EWCA Civ 125 that additional considerations may arise.”

Dealing with what was said in the Cecil case and the judgment of Stanley Burnton LJ, Mr Rabinowitz accepted that reference was made there to exceptional or special circumstances, but the deputy judge said that Stanley Burnton LJ’s purpose in so describing the position:

“...was simply to make clear that the court in such cases must take care not to permit the service by an alternative method under CPR 6.15 to become either 'normal' or 'optional' because this would subvert the provisions agreed by the UK in the Hague Convention or bilateral treaty. It was to this end that, as he explained, in general the desire of a claimant to avoid the delay inherent in following the processes for service stipulated by the Hague Convention or bilateral treaty, would not of itself justify an order for service by an alternative method; nor would reliance on the Overriding Objective justify such an order in such cases. Were the position otherwise the stipulated processes ‘would be optional; indeed, service by alternative means would become normal’.”

Mr Rabinowitz then referred finally at [140] to Bill Kenwright Limited v Flash Entertainment FZ LLC [2016] EWHC 1951 (QB), commenting at the end of [140] that in that case Haddon-Cave J accepted the proposition that the application of the service treaty was a matter to be taken into account but: “... plainly still regarded the relevant test as being whether there was a good reason to make such an order”. And the deputy judge said that he agreed with that.

Lastly, I was referred to a decision of Leggatt J, as he then was, in Flota Petrolera Ecuatoriana v Petroleos de Venezuela SA [2017] EWHC 2630 in which Leggatt J also discussed the topic of alternate service. At [20]-[21] Leggatt J stated that Popplewell J cited a situation where the country in which service is to be effected has stated its objections under Article 10 of the Hague Convention to service otherwise than through its designated authority as an example of a situation where relief should only be granted under CPR 6.15 in exceptional circumstances, but that he did not read Popplewell J’s judgment in the Société Générale case as endorsing the proposition that “exceptional circumstances are required in any case where the country in which service is to be effected is a party to the Hague Convention.”

Leggatt J then said:

“Nor, I must confess, can I see any reason in principle why the fact a country subscribed to the Hague Convention should be seen as a reason to permit alternative service only in exceptional circumstances, unless the country in question has indicated some positive objection to persons resident in this territory being served by any means other than in accordance with the Convention.”

Now, the upshot of that excursion through the jurisprudence, for which I am indebted to Mr Atkins, is that in my view there is some difference of emphasis in the authorities between, on the one hand, those which incline towards the language of exceptional or special circumstances, and, on the other hand, those which incline towards the language of good reason, while nevertheless emphasising that the test as to what amounts to good reason is or may well be more stringent in a Hague Convention or other bilateral treaty case.

I read Cooke J’s judgment in Deutsche Bank as acknowledging the jurisprudence which refers to the exceptional or special circumstances test, but not, in my view, unequivocally endorsing that test, because he says no more than that even if service by alternative means is not to be seen as limited to exceptional cases there must be some good reason. He did not need to resolve the precise test in that case because he simply found that there was no good reason.

Equally, it seems to me that, basing himself on his understanding of the judgment of Popplewell J, Mr Foxton was clear that the test of exceptional circumstances was the right one, and he appears to me to have followed that approach in Marashen. Mr Laurence Rabinowitz, and I think Leggatt J, in the Team Y&R and Flota cases respectively, in my view did not accept that in quite those terms. Instead, they thought that the good reason did not have to meet the criterion of “exceptional” or “special” circumstances. Further, as I read Mr Rabinowitz’s interpretation of Haddon-Cave J’s judgment in the Kenwright case, Mr Rabinowitz did not consider that Haddon-Cave J regarded that as the right test either.

So I am inclined to the view that the better course, and indeed, in my judgment, the inevitable correct starting point, is to look at CPR 6.15 without any gloss. The rule requires good reason. I am doubtful that it is right to say that a good reason envisages a need for exceptional or special circumstances, at least as those requirements are generally understood in other contexts. If, in this context, the concept of exceptional or special circumstances means no more than “not normal” or “not at the option of the claimant”, then I am not sure that it takes matters much further to impose a requirement of exceptional or special circumstances. I consider that the invocation of the rule certainly requires a clear foundation in a case where the Hague Convention applies, and the more restrictive the relevant contracting state has been in what it regards as appropriate to permit by way of service, the more cogent the reason would have to be for it to amount to a “good reason” for alternative service within the meaning of CPR 6.15. It may be sufficient to say that “good reason” means good reason in all the circumstances of the particular case, and that the circumstances include matters like that.

But, having said all of that, and loyally having done my best to analyse the cases to which I have been referred, it seems to me that probably any judicial differences as to what is the correct approach are not significant in the present case, because Mr Atkins broadly was prepared to put his case on the basis that if he needs to show exceptional or special circumstances in this case, he argues he can do so. He may have been wise to approach matters in that way, because in the last judgment in time to which in have been referred Leggatt J appears to have contemplated that a case in which the country in which service is to be effected has stated its objections under Article 10 of the Hague Convention to service otherwise than through its designated authority would or might be a case where the court should contemplate making an order under CPR 6.15 only in “exceptional” circumstances.

So, moving on from the correct legal test, I come to the application of the test on the facts. The grounds as to why he says the test is met are, again, helpfully set out in Mr Atkins’ skeleton argument.

First, he says that there is likely to be a delay of five months or longer if the Hague Convention route is used. He points to the fact that the political situation in Turkey is deteriorating, and he submits that a significant delay in bringing these proceedings to trial “may work to harm” to the first claimant, Koza Limited.

I am inclined to the view that by itself that is not a particularly strong or compelling ground, as I think that ultimately Mr Atkins was probably willing to accept. It does not mean that it has not got any substance at all, but I do not believe that he went so far as to identify any specific likely prejudice. The thrust of the claimants’ case is that the defendants, directly or indirectly, are acting at the instigation of the Turkish State and are intent upon causing detriment to Koza Limited and, in broad terms, by the same token, the second defendant, Mr Ipek, who is, on their case, the lawful director of Koza Limited, by trying to get back the £60 million-odd, or what is left of those monies that were remitted out of Turkey to Koza Limited, by stymying Koza Limited’s business efforts, and by publicising allegations which harm the commercial and possibly other reputations of Koza Limited and Mr Ipek, and so forth. In broad terms, the claimants argue that delay in bringing the case on to trial increases the period in which that sort of harm can occur. However, it is a feature of a lot of litigation that the claimant will, or may, suffer harm by delay. Further, in the present case, to some extent, the potential for harm is limited, because the current interim procedural regime is that the activities that the claimants assert are being wrongly orchestrated from Turkey, have been restrained, and the first claimant is not prevented from carrying on its business in the ordinary way, although obviously on its case it is suffering difficulties in developing that business in the manner that it contends it should be able to do because of the activities it complains of in this litigation.

Mr Atkins’ second ground, in my judgment, is much more significant, and is particular to this case. It is that a significant aspect of these proceedings relates to allegations of wrongdoing against the Turkish Government, including abusive use of the judicial system in Turkey. One particular feature of that is that there have been seizure proceedings which have been instigated seeking, as I understand it, through the auspices of the criminal courts in Turkey, and no doubt possibly by some foreign enforcement regime in this country, the seizure of £30 million and US $50 million. I understand those sums to represent the monies which were transferred out of Turkey to Koza Limited, which Koza Limited says it rightly extracted from Turkey, and which the Turkish State says have been wrongly extracted.

As part of those proceedings, a document was issued to the Ankara Chief Public Prosecutor’s Office on 11 August 2017 from the Ministry of Justice, and the person who was the signatory of that document is Mr Abdullah Murat, who signed for the judge, head of department, by e-signature. That is according to a document at page 337, I assume in translation, in the second bundle of papers in front of me.

What is said in this regard is, in effect, that if the claimants are required to go down the Hague Convention route, because of the designation of the central authority under the Hague Convention, and particularly in light of the fact that the two designated contact persons comprise Mr Abdullah Murat and one other person, it is not difficult to see what may happen on the claimants’ case. Their case is, of course, that they are the victims of a sustained campaign of abuse of power by the Turkish authorities, and if they seek to serve proceedings on the SDIF through the medium of an authority which will or may well engage Mr Abdullah Murat in the material process, there is a clear risk, Mr Atkins submits, that service will never take place, or that it will be significantly delayed or will go awry in some other way.

Mr Atkins supported that submission by drawing my attention to the approach of Snowden J when this matter first came in front of the court on an application for an interim injunction on 16 August 2016. One of the matters that Snowden J had to consider was the question of alternative service, and he was of the view that there were special circumstances, which was the test that he applied having derived it from Cooke J’s decision in Deutsche Bank, namely that it would not be possible to effect service in accordance with the Hague Convention in good time so that a restraint in the terms sought could be operative. At that stage, the relief sought was essentially to restrain a meeting, or the calling of a meeting.

However, Snowden J gave the following as a second ground, or second reason, for holding that alternative service was appropriate in this case at that stage:

“I also think there is real force in the point made by Mr Pymont [the claimants’ then leading counsel] that there must be a real prospect given the evidence as to the situation in Turkey, the involvement of the Turkish authorities and the actions against the Koza group, that service through the more conventional Hague Convention route would not be effected in Turkey at all, or in any short period of time.”

Further, the potential significance of the seizure proceedings, to which I have referred, is underlined by the fact that as one of a long list of allegations that are made in the existing and proposed amended proceedings against the defendants, that is to say, in substance, directly or indirectly the Turkish State, are those that are contained in a lengthy paragraph 43(g)(2) of the proposed amended particulars of claim. I do not propose to read it out, but the whole of paragraph 43(g) should be treated as read in to this judgment. In particular, paragraph 43(g)(2) in a sentence basically asserts that the seizure order is without foundation, is abusive and:

“... is of a piece with other orders made against the Koza group in Turkey: absurd allegations are being used in an attempt to destroy legitimate business for political reasons.”

In my judgment, that is a powerful reason for saying that this is a case in which there is good reason why alternative service should be permitted, even on the footing that exceptional or special circumstances are required to satisfy that test in this particular case.

Sub-paragraphs of paragraph 14 Mr Atkins’ skeleton argument essentially suggest there has been obstruction by organs of the Turkish state in other contexts involving the service of documents, and that it is reasonable to infer on these alternative or additional grounds that the Ministry of Justice would be obstructive in the case of Hague Convention service in the present context as well.

In my judgment, those submissions on the facts are well founded. Obviously, I am not in a position to make, I have no intention of making, and I do not make, any finding as to the validity of the allegations that are made as a matter of substance in the proceedings. However, in my judgment there is ample material on what I have been shown to date to show this is a case where there are real grounds for concern that resorting to or being confined to the Hague Convention may never produce any service at all or could produce a long delay beyond that normally expected under the Convention. This would be, in my view, manifestly unfair and unjust to the claimants, and amounts to “good reason” within the meaning of CPR 6.15.

Although Snowden J was not asked to consider the matter in this sort of detail and only gave that reason as a second ground for finding, as he did, special circumstances for permitting alternative service on the material before him, I am comforted by the consideration that he took a similar view on the materials that he then had, and that he came to the same conclusion on the issue that was in front of him as I have come to today on the materials before me.

As far as I understand it, the materials now available are much fuller and more detailed, and plainly the particular document that I have referred to concerning the seizure order postdates Snowden J’s judgment. That document in particular provides a clear and substantial ground for concern, in my judgment, about confining the claimants to the Hague Convention route.

So, for those reasons, which I regret to say are longer and more untidy than if I had had time to put my reasoning in writing, I propose to make an order for alternative service, and I propose to discuss in a moment precisely what form that order should take.

Before doing so, I should deal with the fact that Mr Caplan made written and oral submissions, as I have already indicated, on behalf of Mishcon de Reya, focusing on three principal submissions concerning the suggestion that service by alternative means should be allowed on Mishcon de Reya. He submitted, first, that this is unnecessary in light of the fact that there is, effectively, a means of notification, and I think Mr Caplan would submit service, on the SDIF via courier or post, and, indeed, according to the evidence, this has actually successfully already taken place once in light of the delivery of the application notice. Secondly, it would be unprecedented and contrary to principle to make an order against a law firm as what he terms a “service agent”, although I think “medium of service” might be fairer. Third, there is a possibility, at least, of difficulty, to put it in low key and relatively neutral terms, for Mishcon de Reya if they were confronted with that position.

Mr Atkins suggested that if Mishcon de Reya do not want to do anything with any documents that are served in keeping with an order in the terms sought concerning them, they do not have to, and that will be the claimants’ lookout: the service on the SDIF will simply not happen.

I do not think that suggestion is very realistic, first of all because, if that was to be the effect, there would not be much point in getting an order for alternative service in the terms sought that involve Mischon de Reya; and, secondly, I think there would or might be quite considerable issues for Mishcon de Reya if they received these materials and were inclined to take the view that they were just free to destroy them, or throw them away as they saw fit, and not pass them on. I think it would place them, at least potentially, in a difficult predicament.

There are, I believe, cases, to which my attention has not been drawn – and I make no criticism of anyone about this - in which the court has declined to make an order in similar terms involving legal advisers. That is my clear recollection and understanding of some media cases, for example where it is thought that the lawyers for a particular media defendant may have the means of making contact with the “Persons Unknown” who are said to be threatening to misuse the claimant’s private information, although I have not had time to track them down and see if my memory is right. So I think that there are reasons for concern about that.

Having said that, and while I recognise that the SDIF is not the same as the directors of Koza Altin, I am fully cognisant of the fact that they were appointed by the SDIF. I consider on the materials that I have seen, that they must be able to make contact with the SDIF, and indeed that they must be reporting back or are at least capable of reporting back to the SDIF. On one view, service on them might be capable of being regarded as service on the SDIF, because they are its appointees. In any event, while the evidence from Mishcon de Reya is clear that the firm is not in regular or, in fact, direct contact with any of the proposed new parties, including the SDIF, and while Mr Caplan, understandably, has not addressed me on the nature of Mishcon de Reya’s contacts with them, and while I can readily see that the firm could easily be acting on instructions from the individual directors without contacting the SDIF, in the real world the SDIF and these directors are plainly very closely associated, in both legal and practical terms. While making no criticism of anybody, I do not think that the position that the directors are instructing solicitors in England and the SDIF is not is, on the face of it, a particularly attractive one. That said, Mr Caplan has been constrained in what he is able to say to me about all these matters for obvious reasons, including legal professional privilege.

So I should make clear that I have taken Mr Caplan’s submissions into account before deciding that there should be an order, although for those brief reasons my present inclination is to go down some route that does not involve Mishcon de Reya in the sense of making an order that service on Mischon de Reya should stand as alternative service on the SDIF.