Shiblaq v Sadikoglu

This judgment begins where my first judgment in this matter given on 25 July 2003 (“the First Judgment”) left off. There are two main issues:

Issue (a) can be sub-divided into two parts:

As to the validity of service under Turkish Law the following is a summary of the expert evidence.

Professor Helvaci of the Istanbul University Law Faculty, who was consulted on behalf of the defendant and whose opinion is referred to in paragraph 25 of the First Judgment, stated that by reason of the Anglo-Turkish Convention of 1932 valid service could only be effected through diplomatic channels. This convention continued to apply in spite of the Hague Convention. He did, however, state or at least imply that service by a notary public following the procedure in the present case, although invalid as regards foreign proceedings, could be valid as regards Turkish domestic proceedings.

Professor Yavuz of the Law Faculty of Marmara University, together with Professor Celikel and Professor Yildirim, consulted on behalf of the claimant, state that the provisions of the Hague Convention have displaced the 1932 Convention and that, if the proceedings had been Turkish domestic proceedings, they could have been served by a notary public in the manner adopted in the present case pursuant to Article 70 of the Notary Public Law. Service of the foreign proceedings in this case could be validly served by a notary public.

Professor Ata Sakmar, a Professor of Private International Law and International Business Law at Galatasaray University, Istanbul, consulted on behalf of the Defendant, stated that foreign proceedings cannot be served directly on an intended defendant in Turkey save subject to the principles of reciprocity and in any event a notary public has no power to effect service of judicial documents in Turkish domestic proceedings because that must be effected by the court authorities through the Turkish post. He did, however, agree that the Hague Convention superseded the 1932 Convention. However, since a notary public could not directly serve any judicial proceedings, that Convention did not have the effect of permitting service of foreign proceedings by such means.

In a further joint report of Professor Celikel, a former Dean of Istanbul University Law Faculty, Professor Yavuz and Professor Yildirim, it was stated that a notary public could validly serve foreign proceedings direct on an intended defendant. Even if such service was not in accordance with Turkish requirements, the effect of Article 32 of the Notification Law and Article 51 of the Notification Regulation was that if the person ineffectively served had become aware of the proceedings against him he would be treated as duly served. The facts of the purported service by the notary public in this case were such that the defendant must have come to know of the attempted service and the English proceedings soon after the notice slip was attached to the door of the shipyard. Accordingly, there was then deemed to be a valid service. In any event there was valid service under Article 10 of the Hague Convention.

In a Rejoinder Legal Opinion Professor Sakmar reiterated that a notary public does not have power directly to serve domestic proceedings. Further, Article 32 of the Notification Law only applied in cases where the person ineffectively served had formally declared or confessed that he was aware of the ineffective service. It was not open to the claimant party to prove that the contents of the document came to the attention of the addressee. Only the admission of the addressee could be relied on to establish such knowledge and the date when the addressee acquired it. Further, Article 32 could not be deployed for the purposes of the Hague Convention. Accordingly, Article 10 of that Convention could not be relied on.

There is also a yet further response by Professor Sakmar which is substantially consistent with his previous opinions. Finally the claimant’s three advisers have jointly rejected Professor Sakmar’s interpretation of Article 32 so as to require an admission from the addressee as a condition of its cure of an ineffective service. Moreover, the defendant’s refusal in this case to receive the documents to be served was, if necessary, a sufficient admission by them of notice of the proceedings.

I am bound to say that I have found the disagreement of these Turkish professors on what amounts to valid service under Turkish law to be very surprising indeed. One would have thought that the Turkish courts would long since have conclusively determined whether proceedings – certainly domestic proceedings – could be effectively directly served by a notary public. One of the difficulties which has confronted this court in trying to evaluate the conflicting evidence is the familiar problem of the partially opaque nature of much of the English used in the translations of the articles of Turkish law and of the experts’ reports. When confronted by this kind of conflict it is not easy for an English judge to place himself precisely in the shoes of a Turkish court in resolving the issues. One can, however, to some extent test the position by considering whether the propositions advanced about the meaning and effect of codified provisions of Turkish Law are tenable having regard to the translated words used and whether, with regard to the purpose of the provision, one meaning is intrinsically more likely than another. On applications such as this conducted on the basis of written reports alone and without the benefit of oral evidence, the court must also have regard to the preponderance of legal opinion before it.

With this approach in mind and doing the best I can with the translations of reports and procedural rules, I have come to the conclusion that the view shared by Professor Dr Helvaci, Prof Yavuz, Prof Celikel and Prof Yildirim that valid service of domestic proceedings on an intended defendant in Turkey can be effected directly on the defendant by a notary public is correct. It is to be observed that this was the procedure which the claimant’s Turkish lawyer regarded as appropriate and which the notary public also appears to have considered within his powers. Only Professor Sakmar states that it was ineffective and I am bound to say that I find his attempt to cut down the meaning of Article 70 of the Notary Public Law extremely unconvincing.

I conclude, on the basis of the whole of Turkish legal opinion adduced for this hearing, that a notary public is empowered to effect valid service of domestic Turkish proceedings by direct service on the defendant. The question then arises whether according to Turkish Law the same rule applies to foreign proceedings.

Dr Sakmar’s argument is that service of foreign proceedings by that means is impermissible. His opinion rests not only on the assertion that a notary public cannot serve domestic proceedings, but also that Turkey has registered an objection to Article 10 of the Hague Convention. This provides as follows:

“Provided the State of destination does not object, the present Convention shall not interfere with:

(a)

the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b)

the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c)

the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”

There is no doubt that Turkey has registered such an objection.

It will be observed that the purpose of this provision is to preserve those methods of service listed in (a), (b) and (c) in parallel with the methods specified in Article 3 to 6 (service through the Central Authority of the state addressed), Article 8 (service through diplomatic or consular agents) and Article 9 (service through consular channels or the authority in another contracting state designated to receive such service). It is only if a contracting state registers an objection to the use of methods (a), (b) or (c) that under the Convention methods (a), (b) or (c) are not available. Dr Sakmar derives from this objection to Article 10 the proposition that direct service by a notary public in Turkey of foreign proceedings commenced in the courts of a contracting state cannot be permissible.

In a very recent final report the Claimant’s experts have expressed the view that application of the reciprocity principle leads to the conclusion that there has been effective service by post under Article 10(a): Britain has registered no objection to service under 10(a) therefore service by this means in Turkey must be valid. I cannot follow this reasoning. In effect it is using lack of objection by one contracting party to defeat a registered objection by another. This is apparently contrary to principle and to the express words of the Convention. Nothing else in this most recent report effectively displaces Dr Sakmar’s argument that Turkey’s registered objection under Article 10 renders impermissible direct service of foreign proceedings in Turkey by the method used in this case. The fact that Turkey has entered such an objection to such methods of service of foreign proceedings does not conclusively establish that service by the method used in this case is impermissible in Turkey, but it does raise the very strong inference that such is indeed the case. One would thus have expected to find in the final report of the Claimant’s experts a coherent account of why that inference should not be drawn. Instead, the report includes the intrinsically implausible argument on reciprocity to which I have referred together with a bold assertion that service was not effective.

In my judgment, the evidence most recently advanced by the Claimant’s experts has not displaced the inference arising from Turkey’s objection to Article 10 of the Hague Convention that direct service of foreign proceedings in Turkey by methods (a), (b) or (c) is impermissible.

It is, however, on the basis of Article 15 of the Hague Convention that the Claimant primarily relies for the proposition that service on the Defendant in Turkey by a method permissible for the service of Turkish domestic proceedings is sufficient to constitute effective service for the purposes of obtaining a judgment in default of acknowledgement of service.

Article 15 provides as follows:

“Where a writ of summons or an equivalent document has to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that:

a)

the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

(b)

the document was actually delivered to the defendant or to his residence by another method provided for by this Convention.

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:

a)

the document was transmitted by one of the methods provided for in this Convention,

b)

a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c)

no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.”

Mr Joe Smouha QC submits that the effect of this provision is to enable a claimant to obtain a judgment in default if proceedings were served by a method prescribed by the internal law of the state in which service was effected for the service of documents in domestic proceedings on persons within the territory of that state. He further submits that in the present case service was effected in conformity with Turkish domestic law for the service of documents in domestic proceedings – as I have held – and that such service was effected in sufficient time to enable the defendant to defend.

It is argued by Mr David Quest, on behalf of the Defendant, that the function of Article 15 is to provide a minimum level of protection to intended defendants by prohibiting default judgment to be entered unless there has been at least service in accordance either with a method prescribed for service in domestic proceedings or with the method in Article 15(b). In other words Article 15 does not provide for what is to be done by way of service in order to found a default judgment but merely that nothing less must be done than use of one of the specified methods.

The proper construction and effect of Article 15 were expressly left open in paragraph 28 of the First Judgment in this application, although I expressed the provisional view that its effect was not to substitute for any applicable domestic law provision for the method of service of foreign proceedings the method of service of domestic proceedings in the country in question.

Having heard further argument on this point I am not persuaded that my provisional view is not correct. The key to construction of Article 15 is that it is concerned with transmission abroad of a writ or similar document for the purpose of service “under the provisions of the present Convention”. Such provisions include various methods of service, such as service through the Central Authority of that state (Article 5), service directly through diplomatic or consular agents (Article 8) and service through designated state authorities, (Article 9). Further, Article 10 also contemplates a much more liberal service regime unless there is an objection to such method.

Clearly, Article 15 is catering specifically for the giving of judgment in default of appearance following the use of some method of service, involving transmission of documents abroad, which is “under the provisions of the …. Convention”. In other words, this Article does not define available methods of service but rather the necessary minimum characteristics of the method of service adopted if a judgment is to be given. Thus, if one of the methods of service contemplated by the Convention involved service or delivery of the document, otherwise than in accordance with (a) or (b) or in circumstances which gave the defendant insufficient time to defend, judgment could not be obtained for that claim on the basis of that service. I accept the submission that the Article has the purpose of protecting the defendant against judgment obtained in circumstances less favourable in terms of notice to him than the methods specified in (a) or (b) and subject to the method affording to him sufficient time to defend.

Thus, one always starts from a method of service under the provisions of the Convention. In my judgment, this clearly cannot include a method of service under Article 10 to which specific objection has been registered by the state party in which service is effected. If that is what Article 15 meant, it would present a means of nullifying any such objection.

This being so, I conclude that the argument that, because the method of service used would have been a permissible method of serving domestic proceedings in Turkey, it can necessarily provide the basis for a judgment in default of appearance is misconceived. If such method is not a permissible method of service of foreign proceedings in Turkey under Turkish procedural law, Article 15 of the Convention does not provide any alternative route to effective service for the purpose of obtaining judgment in default.

It therefore follows that the method of service adopted in this case was not permitted by the law of Turkey within CPR 6.24(a). Even if it was permitted under Turkish law for service of domestic proceedings, it was not a method permitted for service of foreign proceedings. Indeed, it was a method expressly excluded by reason of the Turkish objection registered under the Hague Convention and could not therefore be within the scope of CPR 6.24(a). Nor was it a method of service designated by CPR 6.25(1) as appropriate where the claim form is to be served on a defendant in a country which is a party to the Hague Convention.

Accordingly, subject to the Claimant’s applications under CPR 3.10, for the court to remedy errors in service and under CPR 6.9 to dispense with service, this judgment in default of acknowledgement of service must be set aside under CPR 13.2. I must therefore now consider these applications.

Mr Smouha submits on behalf of the claimant in relation to CPR 3.10 that it was established under the Rules of the Supreme Court that the purpose of service is to bring the proceedings to the intended defendant’s attention and that the court will consider curing irregularities in service, including service outside the jurisdiction, where it can be shown that, in spite of the defect in service, the proceedings were brought to the defendants’ attention. In this case the conduct of the defendant called for the court’s intervention. In particular, he had at the last hearing conceded that he had heard of the proceedings much earlier than he originally claimed to have done. Yet between December 2001 when he conceded he had notice of the proceedings and May 2003 he did not instruct English solicitors and offered no satisfactory explanation for having failed to do so. Further, although on 17 May 2003 he obtained an adjournment of the Dubai enforcement proceedings on the grounds that he was applying to set aside the English judgment he did not even issue the present applications for another month. Accordingly, it was to be inferred that the methods of service used – which were valid for Turkish domestic proceedings - had provided him with adequate notice and therefore the court should now cure the defect in service. The defendant would not be prejudiced since he must have had notice of the claim at the material time, namely when the ineffective service was carried out. The application of the court’s power to remedy the defect in service therefore should result in the case being taken out of CPR 13.2 because the judgment was not “wrongly entered” since the exercise of the CPR 3.10 remedial power would result in the service in Turkey being deemed to be valid, an acknowledgement of that service not having been filed and the judgment in default consequently having been properly entered. It would follow that there should be no mandatory setting aside of the judgment, thereby leaving only the discretionary power to set aside under CPR 13.3.

In support of his submissions Mr Smouha relied on the decision of the Court of Appeal in The Goldean Mariner [1990] 2 Lloyd’s Rep 215.

The consequence of these submissions would be that, notwithstanding the express provisions of CPR 6.24 setting out the permissible methods of service outside the jurisdiction, the English courts could exercise a residual discretion to substitute a different method of service and one which was impermissible either under the law of the country in which service was attempted or under any relevant Civil Procedure Convention. The result would be the exercise of extra-territorial jurisdiction in circumstances where the formalities of service prescribed by local law or international convention had not been complied with. This would be an approach which the English courts would in principle hesitate long before adopting and which is not consistent with the jurisdictional basis of CPR 6.24(2).

The Goldean Mariner, supra, was concerned with the application of the predecessor of CPR 3.10, namely RSC Order 2, rule 1. This provided as follows:

“1(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or other therein.

(2)

Subject to paragraph (3) the Court may, on the ground that there has been such failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”

Leave having been given ex parte to serve a number of defendant reinsurers outside the jurisdiction, six of them were served with writs in identical form but each of the writs was addressed to the wrong defendant. A seventh defendant was not served with any writ but merely with an acknowledgment of service form bearing the names of all the defendants in the title. The primary issue was whether these steps engaged the court’s jurisdiction to exercise its discretion under RSC Order 2, rule 1(2). Phillips J. had held that they did not. The Court of Appeal held that they did in relation to the six defendants, and by a majority (McCowan LJ. and Sir John Megaw) in relation to the defendant who never received a writ. Lloyd LJ. agreed with Phillips J. that in the latter case the failure to serve anything more than an acknowledgement of service form was an omission so serious that it was not a failure to comply with the requirements of the Rules by reason of something left undone.

McCowan LJ. and Sir John Megaw held in relation to the latter defendant that there had been an attempt to take a step in the proceedings but a failure to comply with the Rules as to what document should be served for that purpose. There was a purported commencement of proceedings within RSC Order 2, rule 1 in relation to which there had been a failure to comply with a requirement of the Rules.

It is to be observed that the wording of RSC Order 2, rule 1(1) was significantly more specific than the wording of CPR 3.10. In particular the use of the phrase “in beginning or purporting to begin any proceedings” points reasonably clearly to attempting unsuccessfully to bring proceedings due to a failure to comply with the requirements of the rules. Those words are thus clearly wide enough to include the use of a document which does not qualify as a writ. The phraseology of CPR 3.10 directs itself to an error in procedure which might otherwise render invalid “any step taken in the proceedings”. The commencement of proceedings takes place when a claim form is issued by the court (CPR 7.2(1)). It follows that the service of a claim form whether in this country or outside the jurisdiction is a “step in the proceedings”. Thus, there is at least on the face of the wording of CPR 3.10 jurisdiction under (a) to order that an error in service (by non-compliance with a rule or practice direction) shall invalidate service and under (b) to make an order remedying any such error.

But how far does this rule go? Does it enable the court to remedy an error in a step in the proceedings on the basis of validity of which further steps have already been taken, such as those in the present case, which have involved impleading a foreign defendant in a manner impermissible by the law of his country and under any international convention and, in reliance on that erroneous step, taking the further step of signing judgment in default of an acknowledgement of a service which under the law of both countries he was entitled to ignore (see First Judgment paras 20-24)?

It would indeed be very remarkable if the answer to this question were yes. For it would mean that the court could retrospectively order that service was valid with the effect that retrospectively it engaged the (invalidly served) defendant’s duty to acknowledge service when at the relevant time he was under no present duty to do anything at all (see First Judgment paras 20-24) and thereby retrospectively to create all the facts which would have existed had there been a presently valid service and so justify signing judgment in default. Such a result would be palpably absurd.

In Elmes v. Hygrade Food Products plc [2001] EWCA CIV 121 it was held by the Court of Appeal that CPR 3.10 could not be used so as to have the effect that an order for alternative service under CPR 6.8 should retrospectively be deemed to have been made prospectively. That was a case where the error in service consisted of serving the defendants’ insurers instead of the defendants themselves. The claim form having been issued on the last day of the limitation period and mis-served on the last day of the four month validity of the form for service, the claim had become time-barred unless the service could be retrospectively validated. It is, however, clear from the judgment of Simon Brown LJ. that this feature of the case played no part in the court’s reasoning.

The present case points even more obviously than Elmes v. Hygrade Food Products plc, supra, to the inapplicability of CPR 3.10.

It illustrates the limits on the manner in which that rule can be retrospectively applied. Specifically it cannot be used to avoid the consequences of failing to utilise CPR 6.8 prospectively in order retrospectively to validate defective service. It certainly cannot be used retrospectively to create a deemed breach of the duty to acknowledge service and thereby to justify signing judgment in default. I would hold that this is not merely a matter of the exercise of the court’s discretion to remedy errors under CPR 3.10(2) but goes to the scope of CPR 3.10(1). Accordingly, the approach of the Court of Appeal in The Goldean Mariner, supra, does not apply to the scope of CPR 3.10.

If I am wrong in concluding that the effect of CPR 3.10(1) does not extend to render valid an ineffective service out of the jurisdiction and that there is no jurisdiction under 3.10(2) retrospectively to validate such service, I would hold that the discretion to remedy such an error should not normally be exercised so that it had the result of impleading a defendant outside the jurisdiction in circumstances where the method of service actually adopted was impermissible under the law of the country in which service was attempted.

In a case where retrospective validation of such service is deployed by a claimant in order to justify a judgment in default of acknowledgment of service, I would hold that it would be an inappropriate exercise of the discretion to remedy the defect in service, even if it were established that the intended defendant had become well aware of the claim within the time period for acknowledgment of service. A defendant cannot be put in the position of being subjected to a default judgment by retrospective validation of service when he had not failed to file an acknowledgment of service which at the relevant time he was under no duty to file.

The Claimant’s application under CPR 3.10 is therefore refused.

As to the application under CPR 6.9, that rule provides as follows:

“(1)

The court may dispense with service of a document.

(2)

An application for an order to dispense with service may be made without notice.”

It is submitted on behalf of the Claimant that the court should now cure retrospectively the position arising from the failure to accomplish effective service in Turkey by an order dispensing with service. In other words, the defendant would be impleaded outside the jurisdiction by simply being informally notified of a claim and could then be subjected to a default judgment because he had failed to acknowledge service which was ineffective and had been subsequently dispensed with.

In Godwin v. Swindon Borough Council [2002] 1 WLR 997 the claimant sought to avoid the effect of CPR 7.6(3), which lays down the only circumstances in which the court has power to extend time for service of the claim where the application is made for extension of time after the period for service has already expired, by applying for an order dispensing with service under CPR 6.9. The Court of Appeal concluded that CPR 6.9 could not be used retrospectively to provide what would have the effect of an extension of time in circumstances which were outside those identified in CPR 7.6(3).

However, in Anderton v. Clwyd County Council (No.2) [2002] 1 WLR 3174 the Court of Appeal, while accepting that CPR 6.9 could not be applied retrospectively on the facts in Godwin, held that there might be cases where it could be applied retrospectively. At page 3197 Mummery LJ. said this:

“In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin’s case, between two different kinds of case.

First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin’s case as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.

Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim form. The ground of the application is that the defendant does not dispute that he or his legal adviser has in fact received, and had his attention drawn to, the claim form by a permitted method of service within the period of four months, or an extension thereof. In the circumstances of the second case the claimant does not need to serve the claim form on the defendant in order to bring it to his attention, but he has failed to comply with the rules for service of the claim form. His case is not that he needs to obtain permission to serve the defendant out of time in accordance with the rules, but rather that he should be excused altogether from the need to prove service of the claim form in accordance with the rules. The basis of his application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant accepts that he has received the claim form before the end of the period for service of the claim form. Apart from losing the opportunity to take advantage of the point that service was not in time in accordance with the rules, the defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document, which has already come into his hands before the end of the period for service. The claimant, on the other hand, will be prejudiced by the refusal of an order dispensing with service as, if he is still required to serve the claim form, he will be unable to do so because he cannot obtain an extension of time for service under rule 7.6(3).

In the exercise of the dispensing discretion it may also be legitimate to take into account other relevant circumstances, such as the explanation for late service, whether any criticism could be made of the claimant or his advisers in their conduct of the proceedings and any possible prejudice to the defendant on dispensing with service of the claim form.”

The application of that approach led to the court allowing the appeal in Chambers v. Southern Domestic Electric Services Ltd, at p3198-3199, a case where the claim form was received by the defendant and had come to its solicitor’s attention before the end of the period for service but had not been formally served until after its expiration. By that time the defendant had already admitted liability and negotiations as to quantum were afoot. A settlement offer had been made. It could thus be regarded as “an exceptional case”.

In Cranfield v. Bridgegrove Ltd [2003] EWCA Civ 656, the Court of Appeal expanded on the circumstances in which CPR 6.9 could be used with retrospective effect. At paragraph 86 the court decided that good service had been effected at the company’s registered office. However, in case that was wrong, the court considered (obiter) whether it was an appropriate case to dispense with service. At paras 87-88 Dyson LJ. said this:

“In these circumstances, it is not necessary to decide whether the judge was right to dispense with service under CPR 6.9. However, in view of the importance of giving some guidance as to the scope of CPR 6.9 in cases such as this, we shall express our opinion on this issue on the footing that (contrary to the view just expressed) service should have been on the defendant's solicitors under CPR 6.4(2). In our judgment, on that hypothesis, the circumstances identified by the judge did not make this an "exceptional" case within the letter or the spirit of Anderton and Wilkey. But we wish to emphasise the following features. It is clear that a copy of the claim form as issued was sent to Branton on 15 March 2002. In other words, a copy of the right document was sent to the right person at the right address and, if CPR 6.7 applied, it was deemed to have been served before the expiry of the 4 month period. Moreover, Branton were informed by Horwich that the original documents had been served on the defendant's registered office that same day. The only flaw in the process was that Horwich sent a copy of the issued claim form, rather than the original document itself. In this regard, it is to be noted that, if Horwich had sent the issued claim form to Branton by fax, that would have been good service. A document received by fax is a copy document. The circumstances revealed by this case do not precisely satisfy the Anderton criteria: Branton received a document served by one of the permitted methods of service (ie by first class post on the right person at the right address), but it was a copy of the document that should have been served.

In these very unusual circumstances, had it been necessary to do so, we would have decided that it was right to dispense with service under CPR 6.9. It is possible that the relationship between service under section 725(1) and service under the CPR was not fully understood, and that the importance of serving on the party to be served the original claim form that has been issued (rather than a copy) was not appreciated. But in future the significance of these points will have to be taken into account. Errors of this kind will generally not be regarded as good reasons for making an order under CPR 6.9. In stipulating a strict approach for the future in such circumstances, we have been guided by what was said in Anderton and Wilkey.”

On the basis of these decisions it can be concluded that CPR 6.9 can only be applied with retrospective effect in exceptional cases particularly where the making of such an order has the same effect as if an order had been made extending time for service or dispensing with service of the claim form. What facts are necessary to render the circumstances exceptional cannot be pre-defined, but in general the starting point will normally be that within the time for service the defendant has been as fully informed of the claim against him as if service of the claim form had been properly effected. The provision of effective service would therefore not provide the defendant with anything of substance he did not already have, except a formal document.

All these cases were concerned with service within the jurisdiction.

In only one reported case has CPR 6.9 been considered in the context of service outside the jurisdiction. That is the decision of Lawrence Collins J. in Bas Capital Funding Corporation [2004] 1 Lloyd’s Rep 652. In that case, leave having been given to serve English proceedings in Malta, the claim form and particulars of claim were faxed and emailed and delivered by hand at the registered offices of the company and at the private address of the owner and a director of the company. All these methods were ineffective as service under English law or Maltese law. Upon an application by the claimant to dispense with service under CPR 6.9 Lawrence Collins J., having referred to Knauf UK v. British Gypsum Ltd [2002] 1 WLR 907, observed at p674-675:

“By CPR 6.9 the court may dispense with service of a document. The power under CPR 6.9 can be exercised retrospectively, but only in exceptional circumstances: Anderton v. Clwyd CC (No.2) [2002] 1 WLR 3174, 3195. The Court of Appeal distinguished the case where the claimant had not even attempted to serve a claim form in time, with the case where the claimant had made an ineffective attempt to serve, and where the defendant did not dispute that he or his legal adviser had in fact received and had his attention drawn to the claim form by a permitted method of service. In the latter case the claimant does not need to serve the claim form in order to bring it to his attention, but he has failed to comply with rules for service. The basis of the application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document which has already come into his hands.

But in the present case there has been no valid service either by Maltese law or by English law. Service by post was not attempted. The service by facsimile and email was not effective because the defendants had not previously indicated in writing that they were willing to accept service by facsimile or by e-mail: see CPR 6PD 3.1 and 3.3. Nor was there service under CPR 6.4, which provides that personal service on a company or corporation takes place by leaving it with a person holding a senior position within the company or corporation; nor under CPR 6.5(6), which only applies to documents left with a foreign company at a place where the corporation carries on its activities within the jurisdiction.

The claimants accept that the claim form has not been formally served on the defendants in accordance with Maltese law as required by CPR 6.24. But they say that the defendants have: (a) had informal service of the claim form well within the 4 month period for service; (b) received copies of all the relevant documents; (b) instructed English solicitors; and (c) taken an active part in the proceedings. Any defendant, acting sensibly and in accordance with the overriding objective, would – on receipt of the relevant documents well within the four month period and having instructed English solicitors – have waived the need for formal service or would have instructed their English solicitors to accept service in the jurisdiction.”

and at 682 he concluded his judgment thus:

“At the time of the hearing of this matter service had not been effected in Malta, although of course the Company, and its Board of Administration, have had the documents since at the latest June 9, 2003. It is true that a defendant is fully entitled to insist on proper service. Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service. But I would hope that, on mature reflection, Mr Tabona would not be advised to take any purely technical point on service.”

He then adjourned determination of the application of CPR 6.9 by which time proper service could be effectively carried out or the defendant could have withdrawn objection to defective service.

In Knauf UK v. British Gypsum Ltd, supra, the relevant issue was whether an order should have been made under CPR 6.8 to permit service on German defendants’ solicitors in England where, under the Hague Convention and the Anglo-German bilateral treaty, it was impermissible to serve the defendant in Germany by post, so that much time would be saved by service on the solicitors in England. At p921 Henry LJ. giving the judgment of the Court observed:

“It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a “mandatory and exhaustive code of the proper means of service on German domiciled defendants”, which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is “good reason”: but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.”

With regard to the jurisdictional requirements of the Brussels Convention the judgment continued at p924:

“In the light of these considerations we would seek to sum up the issue of whether or not there was good reason in this case under rule 6.8 as follows. The application to Aikens J was put specifically on the basis that it was the best, perhaps the only means of bringing all parties into a single forum. An unusual form of service was requested, not for the sake of effecting service (for instance because of some difficulty about that), but for the sake of establishing jurisdiction over a foreign party (Peters) which was prima facie entitled to be sued in the courts of its domicile. The conventions controlling service between the United Kingdom and Germany were therefore being bypassed not in the interest of effecting service by some alternative method where the agreed method was not possible, but for the sake of establishing jurisdiction in England. Although the means used for effecting jurisdiction in England purported to find justification in the Brussels Convention’s rule of strict chronological precedence and in its interest in seeing all related actions tried together, in truth such means subverted the principles of that Convention: for precedence was achieved only by taking an a priori view of where it was convenient for the litigation to be conducted. Moreover that view was taken in the absence of the defendant, who, because it was served before it even had a chance to address the court on the manner of its service, had the question of chronological precedence decided in its absence (otherwise than in the normal way mandated by the service conventions in force between the states concerned). The court’s rationale for taking such action was a view as to where the litigation could best be canalised; whereas the Convention dictates other rules for deciding such questions. The devices sought were not therefore a means of finding a level playing field, but were designed to subvert the agreed principles by which the United Kingdom and Germany regulated service of process and jurisdiction.

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

Although this decision is concerned with the prospective applicability of CPR 6.8, the underlying principles are relevant to the retrospective applicability of CPR 6.9. In particular, there is the strong disapproval of the deployment of the rule to subvert the requirements of the Hague Convention (where an objection under Article 10 has closed off a less cumbersome method of service) so as to engage the rules of the Brussels Convention as to jurisdictional precedence. I have already referred to this problem in paras 36 and 37 above. It was no doubt with this in mind that Lawrence Collins J. expressed hesitation as to the use of CPR 6.9 in Bas Capital, supra, although in that case no international service convention was involved.

The correct approach is, in my judgment, that neither CPR 6.8 (prospectively) nor CPR 6.9 (prospectively or retrospectively) should normally be used if their deployment is for the purpose of substituting a form of service or avoiding a defect in service which is inconsistent with a service convention binding as between this country and the country of service. Where it is sought to apply CPR 6.9 retrospectively, if the effect of dispensing with service is to place the defendant in the same position as he would have been in if service had not been by an impermissible method but by a method provided for by such service convention, no order should be made. The impleading of a foreign defendant which is provided for by international convention should not be effected by a fictional device aimed at circumventing the formal requirements of the relevant convention. This is an emanation of the fundamental principle of international comity and is not amenable to dilution by any feature of the Overriding Objective in CPR 1.1.

Further, even if one took the view that CPR 6.9 could be applied retrospectively to cure defective service in a case such as this, its application would not have the effect of retrospectively imposing on the defendant a duty to acknowledge service. Ex hypothesi there never has been any service such as to engage that duty at the time when it would fail to be performed. It follows that there is no way in which the retrospective application of the rule can found a basis for obtaining judgment in default.

For these reasons, the defendant’s application to set aside the judgment in default succeeds. The claimant’s applications in respect of CPR 3.10 and CPR 6.9 are refused. The order is therefore that the judgment in default is set aside under CPR 13.2. It follows that no discretionary order under CPR 13.3, whether in the terms set out in paragraph 46 of the First Judgment or otherwise, is called for. The defendant is entitled as of right to an order under CPR 13.2. The claimant should be left to a method of service specified by the Hague Convention and to which Turkey has registered no objection.