IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls BuildingFetter Lane, London, EC4A 1NL
Before :
CHRISTOPHER HANCOCK KC
SITTING AS A JUDGE OF THE HIGH COURT
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Between :
RANA AL-AGGAD Claimant
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(1) TALAL AL-AGGAD(2) TAREK AL-AGGAD
(3) LAMA AL-AGGAD Defendants
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Anthony Peto KC and Shane Sibbel (instructed by PCB Byrne LLP) for the ClaimantStephen Houseman KC and Richard Hoyle (instructed by Jones Day) for the First andSecond Defendants
Fionn Pilbrow KC and Vanshaj Jain (instructed by Forsters LLP) for the Third Defendant
Hearing dates: 17 – 18 and 26 October 2023
JUDGMENT
Christopher Hancock KC :
Introduction.
I have before me a number of applications, which are themselves preparatory for a
potential forum non conveniens application currently listed for February 2024. Whetherthose applications do go ahead will depend on my decisions in this judgment, since theDefendants, for various reasons, do not accept that they have been validly served by theClaimant (C).
The background facts.
C is the sister of the three Defendants. D1 and D2 are her brothers, whilst D3 is her
sister.
C is a Saudi national and refugee living in Canada Canada. | ||
She was granted |
refugee status by the Canadian authorities on 12 July 2011.
It is necessary for me to set out in some detail the allegations made by C, although I
emphasise that I make no final findings in this regard. I discuss the relevance of thismaterial below.
In summary, therefore, C submits that:
it is necessary for C to refer to and rely upon that history for the purposes ofthese proceedings, both on the present applications and in the course ofexplaining, in particular, the relevant background to her claims and how (on C’scase) the Defendants have taken advantage of her position to deprive her of thepractical value of her shares in AICO (an investment holding company calledAggad Investment Company (also known as Omar Abdel-Fattah Al Aggad &Co), which was incorporated in Saudi Arabia by the parties’ father, Mr Omar Al
Aggad, in 1975). | |
similar fears persuaded (i) the Canadian authorities to grant C refugee status | ||
and | ||
The current proceedings.
In these proceedings, C claims against all three Defendants for breach of contract and
for an unlawful means conspiracy. For the purposes of this judgment, I do not need togo into the details of the underlying claims.
The current English proceedings were issued on 5 May 2022. On 15 July 2022, D3 wasserved with the proceedings personally whilst at Heathrow Airport. The family have aLondon apartment and a Surrey property.
On 22 July 2022, C applied ex parte for a domestic freezing order in respect of certainproperties of the Defendants in England, permission to serve proceedings against D1and D2 outside the jurisdiction, as necessary and proper parties to the proceedingsagainst D3, permission to serve by alternative means (i.e. by email rather than vianormal diplomatic channels) and for certain confidentiality orders.
On 11 August 2022, Butcher J refused the freezing order application but granted the
remainder of the relief sought, including the confidentiality orders.
On 23 August 2022, the claim form was served on D1 and D2 by email.
12. Acknowledgments of service were filed as follows:
By D3, on 28 July 2022 with a statement that she intended to apply to challenge
jurisdiction.
By D1 and D2, on 16 September 2022 with a statement that they intended to
apply to challenge jurisdiction.
On 11 October 2022, D3 applied to stay the English proceedings on the grounds offorum non conveniens, and sought permission to rely on Saudi law evidence, given thecontention that Saudi Arabia was a more appropriate forum.
On 14 October 2022, D1 and D2 applied to challenge the order for service by alternativemeans. They also sought to stay the English proceedings on forum non conveniensgrounds. They sought to rely on D3’s Saudi evidence, in support of their primary
contention that Saudi Arabia was the more appropriate forum and also soughtpermission to rely on evidence of Jordanian law on the basis that Jordan was the moreappropriate forum, since D2 lives in Jordan.
On 28 November 2022, Part 11 applications were listed, to be heard on 17-18 October
2023 (i.e. the dates that I heard the applications with which I am now concerned).
On 17 March 2023, C’s responsive expert evidence on Saudi law and Jordanian lawevidence was filed, together with an application to rely on such. On 31 March 2023,Calver J by consent, amended the 11 August 2022 order to extend the confidentiality
protections to relate to elements of C’s responsive evidence. | ||
On 30 June 2023, following an extension of time order for service of the Defendants’reply evidence, evidence was served on behalf of D1 and D2, including reports from anew Saudi law expert (Dr Alsubaie) and a new Canadian law report (Dr Meighen) andfurther Jordanian law material from Dr Sharaiha.
On 28 July 2023, D3 filed further reply evidence in relation to Saudi law, with a report
from Dr Alogla.
D2 with certain | by | |
C provided D1 and
reference to which it was proposed that the
would be determined.
Between 1 and 6 September 2023, C provided the Defendants with drafts of herproposed rejoinder evidence in relation to the then mooted forum non conveniensapplications.
On 7 September 2023, C filed the Rejoinder application, seeking leave to file rejoinderevidence in relation to the forum non conveniens applications then listed for October2013.
On 13 September 2023, D1 and D2 wrote to propose that the jurisdiction applicationsbe adjourned, and that the dates available be used for other purposes. That proposal wassupported on 15 October 2023 by D3.
Following opposition in writing by C to the proposals set out above, the position wasexplained to the Court in September 2023, and a series of applications was made in thatmonth.
On 5 October 2023, D3 filed an application for a declaration that there had been novalid personal service on her, because the claim form served did not contain thepersonal address of C. This was the first time that this contention had been put forward.The application stated that the lack of an order granting dispensation had not beenappreciated until the process of preparing bundles for the forum non conveniens hearingwas undertaken. This statement was made in the application notice, but no witnessstatement was served in relation to the point.
On 6 October 2023, there was a hearing before Foxton J, to determine whether theapplication by D1 and D2 that the jurisdiction applications be adjourned should be
granted. The adjournment application was allowed, but it was ordered that the originaldates should be utilised to determine certain of the matters that had been raised by theDefendants, including in particular D3’s challenge to the validity of service on her, andthe challenge by D1 and D2 to the order for alternative service. It is these applicationswith which this judgment deals (although I also heard submissions on other mattersduring the course of the hearing, which in the event, took 3 days).
On 11 October 2023, an application was filed by C seeking dispensation of the inclusion
of C’s personal address on the claim form.
General introduction: the importance of open justice.
In my judgment, given the weight placed by the Defendants on the principle of open
justice in support of their submissions in relation to service of the claim form, it isimportant to start with a consideration of this principle. D3 relied in this regard on thedecision of Johnson J in AEP v The Labour Party [2021] EWHC 3821 (KB), in whichthe judge, having set out the general requirements for open justice, and the importanceof this principle, stated as follows:
“These fundamental principles are reflected in the Civil Procedure Rules.
Thus Civil Procedure Rule Practice Direction 16, paragraph 2.2 provides:
“The claim form must include an address at which the claimant resides orcarries on business.”
Paragraph 2.6 provides:
“The claim form must be headed with the title of the proceedings, includingthe full name of each party. The full name means, in each case where it isknown:
… his full unabbreviated name and title by which he is known …”Practice Direction 16.3.8(3) in conjunction with 16.2.6 directs that
particulars of claim must include the full name of the claimant. Where thereare multiple claimants these requirements apply to each of them: see section6(c) of the Interpretation Act 1978. Once the claim form has been issued, itmust be served on the defendant, and the defendant is entitled to productionof documents from the court records pursuant to Rule 5.4B. Any member ofthe public is also entitled to obtain a copy of the claim form containing thenames and addresses of the claimants from the court records: See CPR5.4C(1):
“The general rule is that a party who is not a party to proceedings may obtainfrom the court records a copy of (a) a statement of case but not anydocuments filed with or attached to the statement of case, or intended by theparty whose statement it is to be served with it…”
These rules are routinely observed, even in cases which raise matters whichare “no doubt painful [or] humiliating”. A claim form that does not contain
the name and address of the claimant will be issued but the sealed copy willbe retained by the court and will not be served until the claimant has supplieda full address: See Practice Direction 16, paragraph 2.5.
There are however circumstances where derogations from the public justiceprinciple are exceptionally permitted. Thus, in Scott v Scott, Earl Loreburnsaid at 446:
“It would be impossible to enumerate or anticipate all possiblecontingencies, but in all cases where the public has been excluded withadmitted propriety the underlying principle …is that the administration ofjustice would be rendered impracticable by their presence, whether becausethe case could not be effectively tried, or the parties entitled to justice wouldbe reasonably deterred from seeking it at the hands of the court.”
In relation to the procedural requirements to provide on the claim form thenames and addresses of the claimants, the court has power to disapply thoserules so that a claim form can be issued by a claimant without it containingthat person's full name or address. The court can also restrict the right ofaccess to court records. It can direct that a hearing take place in private, and/ or that the names of the parties or witnesses not be disclosed: See CPR39.2(1) and (4); CPR 5.4C(4); and Practice Direction 16, paragraph 2.5.”‘emphasis added’
In that case, after a full review of relevant authorities, the judge concluded that it wasappropriate to grant an order anonymising the Claimants. However, it is clear both fromthat authority, and the further decision in the same case of Chamberlain J Taylor vEvans [2023] EWHC 935 (KB), that the principle of open justice is of the utmostimportance. In that latter case, a helpful statement of the relevant principles is set out,at paragraph 9, as follows:
The principles to be applied were set out in JIH , at [21]:
The general rule is that the names of the parties to an action are included
in orders and judgments of the court.
There is no general exception for cases where private matters are in issue.(3) An order for anonymity or any other order restraining the publication ofthe normally reportable details of a case is a derogation from the principleof open justice and an interference with the Article 10 rights of the public atlarge.
Accordingly, where the court is asked to make any such order, it shouldonly do so after closely scrutinising the application and considering whethera degree of restraint on publication is necessary, and, if it is, whether thereis any less restrictive or more acceptable alternative than that which issought.
Where the court is asked to restrain the publication of the names of theparties and/or the subject matter of the claim, on the ground that such
restraint is necessary under Article 8, the question is whether there issufficient general, public interest in publishing a report of the proceedingswhich identifies a party and/or the normally reportable details to justify anyresulting curtailment of his right and his family's right to respect for theirprivate and family life.
On any such application, no special treatment should be accorded topublic figures or celebrities: in principle, they are entitled to the sameprotection as others, no more and no less.
An order for anonymity or for reporting restrictions should not be madesimply because the parties consent: parties cannot waive the rights of thepublic.
An anonymity order or any other order restraining publication made bya judge at an interlocutory stage of an injunction application does not lastfor the duration of the proceedings but must be reviewed at the return date.
Whether or not an anonymity order or an order restraining publicationof normally reportable details is made, then, at least where a judgment is orwould normally be given, a publicly available judgment should normally begiven, and a copy of the consequential court order should also be publiclyavailable, although some editing of the judgment or order may be necessary.
Notice of any hearing should be given to the defendant unless there is agood reason not to do so, in which case the court should be told of theabsence of notice and the reason for it, and should be satisfied that the reasonis a good one.”
CPR 39.2(4) provides:
“The court must order that the identity of any party or witness shall not bedisclosed if, and only if, it considers non-disclosure necessary to secure theproper administration of justice and in order to protect the interests of thatparty or witness.” ‘emphasis added’
The Court also considered separately the question of whether a party’s address should
be held back, at paragraphs 31-33, as follows:
“The claimants' addresses
The application in respect of the claimants' addresses involves a lesserinterference with the open justice principle. In general, and in this case, thepublic's understanding of the litigation is much less likely to be affected bythe non-disclosure of addresses than of names. Nonetheless, a public interestreason must be shown to justify any departure from the usual rule thataddresses are disclosed.
In my judgment, the appearance of material about this case on extremistwebsites provides such a reason. Although there is no specific evidence aboutthe extent of any risk of attacks, the nature of some of the websites on which
material has appeared, taken together with the well-known fact that anti-semitic attacks have markedly increased in the UK in recent years, providesa sufficient basis to conclude that disclosure of the claimants' addresseswould give rise to an appreciable risk to them and their families. Equallyimportantly, it would be bound to cause the claimants distress and worry,which they should not have to endure as a condition of bringing this claim.
The application for an order that the claimants' addresses need not bedisclosed in publicly available documents is therefore granted.”
C, for her part, submitted that it is well established that the principle of open justice isnot absolute, but may require a balancing exercise between the public interest in openjustice and the private interest in maintaining confidentiality for some reason. In thisregard, C relied, inter alia, on the statement of general principle made by Lord Mance,in Kennedy v Information Commissioner [2015] AC 455, including the followingobservations as regards the nature of the open justice principle generally at §§113-114(in the context of considering the extent to which such principles applied to CharityCommission inquiries):
“The principle has never been absolute because it may be outweighed bycountervailing factors. There is no standard formula for determining howstrong the countervailing factor or factors must be. The court has to carryout a balancing exercise which will be fact specific. Central to the court’sevaluation will be the purpose of the open justice principle, the potentialvalue of the material in advancing that purpose and, conversely, any risk ofharm which access to the documents may cause to the legitimate interests toothers….
…There may be many reasons why public access to certain information aboutthe court proceedings should be denied, limited or postponed. Theinformation may be confidential; it may relate to a person with a particularvulnerability; its disclosure might impede the judicial process; it mayconcern allegations against other persons which have not been explored andcould be potentially damaging to them; it may be of such peripheral, if any,relevance to the judicial process that it would be disproportionate to requireits disclosure; and these are only a few examples.”
As to the specific CPR provisions under which the Confidentiality Regime was made,
C submitted as follows:
The general rule under CPR 39.2(1) is, reflecting the open justice principle, thathearings be in public. CPR 39.2(3) provides that the Court must derogate fromthat general rule, and hold all or part of a hearing in private, where the Court issatisfied (i) of one or more of the matters set out in CPR 39.2(3)(a)-(g) and (ii)that it is ‘necessary to sit in private to secure the proper administration ofjustice.’ In that regard, the matters within CPR 39.2(3) C relied upon where (c)‘it involves confidential information (including information relating to personalfinancial matters) and publicity would damage that confidentiality’ and (g) ‘thecourt for any other reason considers it necessary to secure the properadministration of justice’: see further the CPR notes at 39.2.3.1 and 39.2.7 oneach of those factors. Such derogations must be ordered only when it is
necessary and proportionate to do so, with a view to protecting the rights whicha claimant (and others) are entitled to have protected by such means: see thenotes at CPR 39.2.2. The test is one of necessity and not discretion (AMM vHXW [2010] EWHC 2457 (QB)).
The general rule under CPR 5.4C(1) is that a non-party may obtain statementsof case and judgments or orders given or made in public, subject to theconditions in CPR 5.4C(3). CPR 5.4C(2) provides that a non-party may with thepermission of the court obtain from the records of the court a copy of any otherdocument filed by a party, or communication between the court and a party oranother person. CPR 5.4C(4) provides that the Court may make ordersrestricting such access to the Court records. These rules again engage theprinciple of open justice: see the CPR notes at 5.4C.10. An order made underCPR 5.4C(4) preventing a non-party from obtaining from court records copiesof documents to which he would otherwise be entitled is a derogation from thatprinciple and must be granted only when necessary and proportionate to do so,with a view to protecting the rights which applicants (and others) are entitled tohave protected by such means: G v Wikimedia Foundation Inc [2010] EMLR14.
Under CPR 31.22(1) a party to whom a document has been disclosed may usethe document only for the purpose of the proceedings in which it is disclosed,except where the document has been read to or by the court, or referred to, at ahearing which has been held in public, or the court gives permission, or the partywho disclosed the document agrees. Under CPR 31.22(2), the Court may makean order restricting or prohibiting the use of a document which has beendisclosed, even where the document has been read to or by the court or referredto at a hearing which has been held in public. In exercising its discretion underCPR 31.22(2) to decide whether to restrict or prohibit use of a document whichhas been referred to in a public hearing, the open justice principle is engagedand central to the Court’s evaluation: Nab v Serco Ltd [2014] EWHC 1225 (QB)§§28-38; CPR notes at 31.22.1. The Court will more generally take into accountthat CPR 31.22(2) is in wide terms, that the only pre-condition to the making ofan order restricting or prohibiting the use of a document is that it has beendisclosed, whether the order sought is proportionate, and whether the respondentwould suffer any prejudice from the making of the order: Rawlinson v Directorof SFO [2015] EWHC 937 (Comm) §§8-10.
As I have stated already, in paragraph 27, it necessary to consider the extent to whichthe present case calls for a limit or limits to be imposed on the principle of open justice.This has a bearing not only on the procedural regime to be adopted going forward(which, with the assistance of the parties, was finally dealt with by agreement at thehearing before me, and which has now been left to the judge who will hear the forumnon conveniens application), but also on the questions which I have to determine.
In my judgment, in the light of the evidence put forward by C,
and which in my view is clearly credible, even though I do not need to make any
final findings, this is clearly a case in which the principles of open justice fall to bemodified. There is very real personal danger, on the basis of the evidence that I have
seen, to C and her child, if there are no limitations on reporting, and, in particular, | |
I make no final findings as to the reality of such danger, but, on thebasis of the evidence that I have seen, which in my view is clearly credible, I take theview (as did the Canadian Court) that consideration does indeed need to be given tosteps to safeguard C.
As I have noted, the exact details of these steps will need to be considered by the judge
who hears the forum non conveniens application.
I have started with this general introduction because, in my judgment, it informs theconsiderations which are relevant to the individual points which have been taken by theDefendants. Quite clearly, the principle of open justice is an extremely important one.I have attempted to bear this firmly in mind in considering the various applicationsbefore me.
The applications before me.
There are a series of applications before me, as follows:
D3’s application relating to the failure to include the Claimant’s address on theClaim form. If the Claim form has not been validly served on D3, as D3contends, then this Court has no jurisdiction over D3 and, since D3 is the anchorDefendant in relation to the claim against D1 and D2, this Court would have nojurisdiction over those Defendants either.
The related application by C to dispense with inclusion of C’s address on the
Claim form.
The application, made by D1 and D2, to set aside the order for alternativeservice. This is independent of those Defendants’ reliance on the submissionsmade by D3.
The failure to include the Claimant’s address on the Claim form and the application to dispensewith the Claimant’s address.
I start with the first two issues, which, for reasons which will become apparent, I regardas interrelated. The argument under this head was put forward principally by MrPilbrow KC, for D3, although short supporting submissions were made on behalf of theother two Defendants.
The parties’ submissions in outline.
In outline, D3 made the following points.
First, the consequence of the failure to state an address in the Claim formrendered that Claim form incapable of being validly served. In this connectionD3 relied on the provisions of CPR 16.2(1)(e) with its mandatory language – theclaim form must include an address – and the provisions of CPR PD 16paragraph 2.3, along with the various authorities I refer to below.
Secondly, CPR 3.10 could not be prayed in aid to correct the failure because therules, in the form of PD 16 paragraph 2.3, specified a consequence for suchfailure and because the failing here was not in taking a step defectively but in
failing to take a step – i.e. applying for dispensation of inclusion of the address
– at all. Further, the Court should exercise its discretion in order to declareservice invalid.
Thirdly, there had been no waiver of the defect because:
The parties could not waive the requirement because the requirement
was imposed to ensure open justice, which was a principle that was notopen to private waiver;
There was not any conduct sufficient to constitute a waiver.
(4) Fourth, I should not grant the application for dispensation and, even if I did, this
would not cure the invalidity of the service of the Claim form.
For its part, the Claimant contended that:
On the proper construction of CPR PD 16.2.3, failure to comply with that
provision does not invalidate service of the claim form.
The Court has jurisdiction and should exercise that jurisdiction to correct any
non-compliance.
D3 has waived any right to challenge service of the claim form and to challenge
jurisdiction.
In addition, C applied for an order dispensing with the address in the claim form.That submission, was, as I understood the position, to permit the claim tocontinue with the claim in its current format, i.e. without an address.
I turn to consider the parties’ more detailed submissions, before setting out my
conclusions.
Dispensation with the need for an address, validity of service and the cure of any defect.
41. I start with C’s application for dispensation from including the address of C on the
Claim form. In this connection, I adopt the statements of principle that I have alreadyset out, taken from the decisions of Johnson J and Chamberlain J. In the light of theevidence as to the potential for personal danger to C and her son were her address tobecome known , as might be the case if that address were
included on a Claim form which was open for inspection by members of the public, Ipropose to allow that application. This leaves the further question of whether this affectsthe question of the validity of service of the Claim form, which I deal with below.
Moving on then to the argument that the service of the Claim form was invalidated byvirtue of the lack of an address at the time of service, and that this defect cannot becured under CPR 3.10, D3 contended as follows:
The requirements of open justice require the name and address of the Claimant
to appear on the claim form. I did not understand this to be disputed.
The normal result of the failure to include the address is set out in PD 16.2.3,which states that “If the claim form does not include a full address, includingpostcode, for all parties the claim form will be issued but retained by the courtand not served until the claimant has supplied a full address, includingpostcode, or the court has dispensed with the requirement to do so. The courtwill notify the claimant.”
It follows from the fact that the Court would not serve a claim form without anaddress unless dispensation had been given, that the Claimant could not validlyserve such a claim form. Mr Pilbrow KC fairly accepted that there was noauthority directly on point. However, he relied on a number of authorities whichhe contended supported his position, which I address below.
The defect in service was not one which could be cured under CPR 3.10, sincePD 16.2.3 was a more specific regime which was inconsistent with CPR 3.10,and a defect falling within PD 16.2.3 could only be cured in line with therequirements of that regime.
The first authority relied on by D3 was Municipo de Mariana v BHP Group [2022]
EWHC 330, [2023] EWHC 2126 (TCC).
This case involved litigation arising out of the Fundao dam disaster in Brazil.(2) The first hearing was for directions in relation to the manner in which the
litigation, which covered a very large number of Claimants, should be managed.The Claimants’ proposal, which was accepted by the Court, was that an excelspreadsheet should be used to identify the Claimants who were suing in theaction, by names and categories. It was submitted by the Defendants that a groupregister was necessary so that the Defendants would know who was suing them,who would be bound by determinations in the litigation and who is potentiallyliable for costs. In addition, there were certain “Missing Claimants” at the timeof this hearing. The Defendants proposed that, by a set date, details of Claimantsincluding names and addresses, should be provided so that those Claimantscould be added to the group register. In the event, the Court concluded asfollows:
The starting point for case management of numerous claimants insuch proceedings is to identify the claimants and the capacity in whichthey bring their claims; further, to establish a procedure for adding anddiscontinuing the claims, so that at any point in time the defendants mayknow by whom they are being sued.
The existing claimants have all been identified in schedules attachedto the claim forms. The individual claimants are listed in alphabeticalorder, with names, addresses and CPF ( Cadastro de Pessoas Fisicas )taxpayer registration number, together with the identification of thosewhose claim is brought by a litigation friend. The names and addresses ofthe Krenak community claimants are listed, in alphabetical order butwithout any CPF number. The other entities are listed in separateschedules, with their addresses and CNPJ ( Cadastro Nacional da Pessoa
Juridica ) registered business number. The new claimants will be namedon a further claim form to be issued by 17 February 2023.
This was an appropriate method of identifying the claimants but, asthe parties acknowledge, it is imperative that there should be one groupregister to provide clarity and transparency as to the claimants at anypoint in time for the purpose of managing the group litigation. I considerthat this can be done by use of the Master Schedule excel spreadsheet, tobe prepared by the claimants, served on the defendants by 17 February2023 and thereafter managed and maintained by the claimants.
Mandatory minimum requirements for entry onto the Master Scheduleare that:
the claimant or future claimant must be a named claimant identified ina claim form which has been issued and in respect of which the issue feehas been paid by 17 February 2023;
the claim form on which the claimant or future claimant is named hasbeen served on the defendants;
the claimant or future claimant must state that they will rely on theAMPOC (in its current form or as amended); and
the cut-off date for entry onto the group register has not passed.
The extract of the Master Schedule attached to the claimants' draftdirections shows that it contains the following information, namely: (i)claimant ID number; (ii) claimant group or category (1) to (6); (iii) CPFnumber; (iv) relevant claim form on which the claimant was named; (v)whether the claimant has served an APOC; (vi) whether the claimant'sdetails on the claim form are the subject of an amendment application;and (vii) if so, the original claimant name. The following additionalinformation should be incorporated into the schedule by additionalcolumns, namely:
where available, the row number in the original claim form schedule inwhich the relevant claimant's name appeared;
the CNPJ number in respect of each claimant that is a legal entity andnot a natural person;
the date of birth (where available) in the case of claimants who arenatural persons and were aged under 16 at the date of the collapse;
in the case of claimants who are natural persons, whether their claimis brought through a litigation friend or other legal representative.
The court considers that it would be appropriate to order a cut-offdate of 17 February 2023 for entry onto the Master Schedule of anyfurther claimants unless the court gives permission. This will providecertainty for the parties as to the size of the claimant cohort and provide
a sound base from which further case management of the litigation canbe conducted.
The claimants' proposal is that outstanding APOCs should be servedby 16 June 2023, although they will use best endeavours to serve theAPOCs in batches in advance of 16 June 2023 and, in any event, sampleAPOCs of the new claimants will be served in advance of the Hilary CMC.As regards the future claimants, that proposal is reasonable and sensible;it is understood that a very substantial exercise is likely to be required toobtain and verify the details of the new claimants.
However, the court considers that the deadline for service of anyoutstanding APOCs in respect of existing claimants should be 17February 2023, when the Master Schedule is served. The claimants'application dated 5 May 2020 sought an extension of time for service ofthe APOCs in respect of 3,134 claimants, whose questionnaires had notbeen processed properly due to an error by the third party provider. MrGoodhead sought an extension of time of 14 days from the date of theorder. Although the application was stayed pending the defendants' strikeout/stay application, that matter was determined by the Court of Appealsome months ago and there has been ample time to resolve the technicalerror that occurred. Further, the defendants are entitled to an earlyresolution of the Missing Claimants issue, which has been the subject ofmuch correspondence over a long period of time.
Therefore, the court will order the claimants to serve any outstandingAPOCs from existing claimants by 17 February 2023. If an APOC has notbeen served by a claimant by that date, they shall be struck through onthe relevant claim form and the Master Schedule and the claimants willbe required to apply to the court to discontinue such claims at the HilaryCMC if not by earlier consent order.
Both parties agree that there needs to be a resolution of anyoutstanding issues in respect of the claimants' application dated 7 May2019 and/or BHP UK's application dated 24 July 2019, both stayedpending the outcome of the defendants' strike out/stay application.Accordingly, the court will order that by 3 March 2023, the claimants andthe defendants should indicate to each other and to the court whether theyseek to have listed to be heard at the Hilary CMC those applications.
Further, the parties are required to liaise with a view to agreeing (oridentifying any dispute for determination by the court at the Hilary CMCregarding) group litigation directions, including:
the procedure by which the defendants may object to any claimant beingentered on the Master Schedule and the process for resolution of any suchdispute;
the procedure by which claims which are discontinued are updated onthe Master Schedule by Pogust Goodhead;
the procedure for updating the Master Schedule on a periodic basis
by Pogust Goodhead;
proposals for costs sharing;
proposals for Schedules of Information to be provided by the claimants,setting out details of any claims and settlements in Brazil; and
identification of common issues of fact and law.
The court can see the potential benefits of the Master Schedule forcategorising the claimants, their claims and identifying issues for testcases or sampling in due course. However, it would be premature for anyorder to be made in this regard before pleadings are closed and theentries of all claimants on the Master Schedule have been finalised.”
In that case, therefore, the original claim form (which covered a large numberof Claimants) did not include all of the Claimants’ addresses. A revised claimwas then issued, and an extension of time was granted for inserting the relevantnames and addresses and serving the claim form. The result of the hearing wasthat a further extension was granted. The judge dealt with the matter as follows:
“Missing addresses from new claim form
Turning then to the missing addresses from the new claim form, asboth parties have recognised, this raises a slightly different issue in thatthe court has already granted an indulgence to the claimants in the ordermade following the CMC.
It is a requirement of a claim form that there should be an address for
each claimant. Practice Direction 16 paragraph 2.1 provides :
“The claim form must include an address (including the postcode) atwhich the claimant lives or carries on business, even if the claimant'saddress for service is the business address of their solicitor.”
The new claim form did not include the addresses of all the claimantsnamed in the appendix to it. The court granted an extension of time byordering that:
“The claimants may, if so advised, and by 4 pm on 16 June 2023, servean amended new claim form which gives an address for all claimantsnamed on the new claim form. Thereafter, any claimant named on the newclaim form for whom no address has been provided shall be removed fromthe master schedule pending any successful application for permission toinclude them.”
As recognised by the parties, that engages the test set out in Denton v
TH White Ltd [2014] EWCA Civ 906 :
Identify and assess the seriousness and significance of the failure tocomply with any rule, practice direction or court order whichengages CPR 3.9(1) .
Consider any explanation for the default.
Evaluate all the circumstances of the case, so as to enable the court todeal justly with the application, including CPR 3.9(1)(a) : the need forlitigation to be conducted efficiently and at proportionate cost; and CPR3.9(b) : to enforce compliance with rules, practice directions and orders.
The defendants' position is that the addresses were ordered to beprovided for the new claim form by 16 June 2023. That was pursuant tothe claimant seeking an indulgence of the court, having already failed toprovide those addresses in the new claim form. The claimants have nowfailed to comply with the extended date.
It is also said by the defendants that there has been a failure to providea full and proper explanation for the failure to comply with the order. Thedefendants do not know which claimants' addresses have been amendedor included in the current schedules, because the amended schedules havenot been marked up. It has been asserted by the claimants, in MrGoodhead's witness statement, that about 138,000 addresses that weremissing or incomplete would be contained on amended schedules servedon 16 June 2023. It is unclear how many new claimants are still missingaddresses. The claimants' number is 11,000, but the defendants have nomeans of checking that and, therefore, they submit that there has not beenan adequate explanation to the court so as to justify the grant of a furtherindulgence.
First of all, I consider that the failure is significant and serious. Theaddresses should have been on the new claim form when it was issued inFebruary 2023. Following the extension of time granted by this court,these addresses should have been provided by 16 June 2023.
As to whether or not there has been an adequate explanation, Iconsider that there has been. The claimants have provided full anddetailed evidence explaining the difficulties that they have encountered inprocessing all of the new claimants, as referred to above. I accept that theclaimants have satisfied the court that they have taken all the steps thatthey were able to take in order to comply with the court order.
I then consider whether or not, in all the circumstances, it would beappropriate to grant a further extension of time for the missing addressesto be supplied. Those circumstances include the difficulties incurred bythe claimants in providing the addresses; the fact that, at least on theclaimants' figures, it appears to be a relatively small number – this is allrelative to the overall claimant cohort – that require a further shortextension of time.
Against that, I consider that the defendants need to have anopportunity to check whether the claimants exist and to receive theaddresses of the new claimants so that they can see for themselves thatthey are legitimate claimants who intend to pursue the claims; and to seewhere they fit into any pattern of claimants, which may affect the factorsused to assess the merits of individual claims. However, the defendants dohave a vast amount of information about most of the claimant cohort.Therefore, although I accept that the defendants will be adverselyimpacted by the late receipt of this information, it is not such a significantadverse impact so as to justify refusing the claimants a further opportunityto finalise this exercise.
Therefore, I will grant the extension of time sought. However, becausethe claimants have already had the indulgence of the court in an extensionof time for this task, I will make it an unless order, so that it will read:
“Unless the claimants by 4 pm on 8 September 2023 serve an amendednew claim which gives an address for all claimants named on the newclaim form, any such claimant named on the new claim form for whom noaddress has been provided shall be removed from the master schedule andtheir names shall be struck through on the new claim form.” ‘emphasisadded’
The next case that D3 relied on was Stunt v Associated Newspapers [2019] EWHC 511(QB). That was an application under CPR 25.13(2)(e) for security for costs. D3 relieson certain statements in the judgment that emphasise the importance of the need for anaddress. In particular, my attention is drawn to the following passages in the judgment.
In paragraph 17 of the judgment, the judge pointed out that, notwithstanding anargument to the contrary, it was undeniable that there had been a failure toinclude the address in the claim form, which involved a contravention of thePractice Direction.
In paragraph 47 of his judgment, the judge rejected an argument that therequirement related to service only, stating that it might well be relevant toenforcement considerations.
D3 then relied on the decision in Pitalia v NHS [2023] EWCA Civ 657. That was a casein which the claim form was served out of time. The Defendants applied to strike outthe claim, but they did not contend that the Court had no jurisdiction (on the basis thatthe Claim form had not been served within the period of its validity). The decision ofthe Court of Appeal was that failure to contest jurisdiction could be cured under CPR3.10, and that the claim should be struck out as out of time.
I think it helpful to set out the discussion of the Court of Appeal in extenso. The Court
said this:
The following principles emerge from the authorities in this area:
Barton v Wright Hassall LLP makes clear the particular importanceattached by the Supreme Court to the timely and lawful service of originating
process. Failure to comply with the Rules about such service is to be treatedwith greater strictness than other procedural errors. In the present case, ifthe Respondent's solicitors had made their application of 24 January 2020expressly seeking a declaration under CPR 11(1) that the court has nojurisdiction to try the claim, there would have been very little that theAppellants could have said in response.
On the other hand, the principle established in Vinos and followed incases such as Ideal Shopping is that CPR 3.10 cannot be used to override anexpress prohibition in another Rule. An example of such an expressprohibition is in CPR 7.6(3) . If a claimant applies retrospectively for anorder to extend the time for service of a claim form the court may make suchan order only if the remaining conditions laid down by the rule have beenfulfilled. If they have not been fulfilled then Rule 3.10 is simply not available.But the Vinos principle must not be expanded into saying that CPR 3.10cannot be used to rectify any breach of the CPR . Otherwise the Rule wouldbe deprived of its utility. When CPR 3.10 is invoked it presupposes that someerror of procedure has been made. Without it civil litigation would be evenmore beset by technicalities than it is already.
There is a valid distinction between making an application whichcontains an error, and failing to make a necessary application at all. Steelev Mooney [2005] 1 WLR 2819 is a useful illustration. In that case theclaimants sought the defendants' consent to a draft order extending time forservice of the Particulars of Claim. That consent was forthcoming, but theextension of time was useless since the claimants had omitted to refer to theclaim form. This court, distinguishing Vinos , held that the application for anextension of time was clearly intended to be for service of the claim form aswell as the particulars. The subsequent application for relief was not insubstance an application to extend time for service of the claim form, but anapplication to correct the application for an extension of time which had beenmade within the time specified for service and which by mistake did not referto the claim form.
Hoddinott lays down that if a Defendant acknowledges service withoutmaking an application under CPR 11(1) for an order declaring that the courthas no jurisdiction (or should not exercise its jurisdiction) to try the case,this is taken to be an acceptance of jurisdiction. Whatever one might thinkof Hoddinott , the decision is binding on us, and like the judge I do notconsider that it has been impliedly overruled by Barton . The judge was alsoright to reject the argument, based on the use of the word “expired”in Barton , that there is an analogy between the expiry of a claim form andthe death of a living creature. Plainly in some circumstances an expiredclaim form can be revived: see CPR 7.6(3) .
I agree with the judge that the failure of the Defendant's solicitors, whencompleting the acknowledgment of service form, to tick the box indicating anintention to contest jurisdiction is not fatal to their application for relief.Even if the box had been ticked an application would still have been requiredto be made within 14 days. CPR 11(1) does not say that a box on a form mustbe ticked: it says that an application must be made. As the judge put it, a tick
in the box is neither necessary nor sufficient as a basis for challengingjurisdiction.
The critical question, therefore, is whether the Defendant's applicationof 24 January 2020 can, by the use of CPR 3.10 , be treated as having beenmade under CPR 11(1) . I do not accept Mr Trotman's argument that suchrectification would offend against the Vinos principle. CPR 11(1) does notcontain clear mandatory wording equivalent to that laid down by CPR 7.6(3) that a retrospective extension of time may be granted “only if” certainconditions are fulfilled.
The failure to make express reference to CPR 11(1) in the letter of 21January 2020 or the application of 24 January 2020 was in my view an errorcapable of rectification under CPR 3.10 . The three documents - theacknowledgment of service, the covering letter and the application to strikeout supported by witness statements – together made the Defendant'sintentions clear. This was in substance an application to stop the case on thegrounds that the Claimants had failed to serve the claim form in time. Thecase is much closer to Steele v Mooney than to Vinos or Hoddinott.
I am not impressed by the argument on behalf of the Appellants that iftheir failure to comply with the rules is to be treated so strictly despite theserious consequences, the same procedural rigour should be applied to theRespondent. That argument is contrary to the decision of the Supreme Courtin Barton. Errors in issuing and serving originating process are in a class oftheir own.”
D3 relied on the dicta in paragraphs 32(i) and 37 as to errors in issuing and serving
proceedings as being in a class of their own.
Finally, D3 relied on Barton v Wright Hassall [2018] UKSC 12, paragraph 16, where
the Court said:
The first point to be made is that it cannot be enough that Mr Barton'smode of service successfully brought the claim form to the attention ofBerrymans. As Lord Clarke pointed out in Abela v Baadarani , this is likelyto be a necessary condition for an order under CPR rule 6.15 , but it is not asufficient one. Although the purpose of service is to bring the contents of theclaim form to the attention of the defendant, the manner in which this is doneis also important. Rules of court must identify some formal step which can betreated as making him aware of it. This is because a bright line rule isnecessary in order to determine the exact point from which time runs for thetaking of further steps or the entry of judgment in default of them. Service ofthe claim form within its period of validity may have significant implicationsfor the operation of any relevant limitation period, as they do in this case.Time stops running for limitation purposes when the claim form is issued.The period of validity of the claim form is therefore equivalent to an extensionof the limitation period before the proceedings can effectively begin. It isimportant that there should be a finite limit on that extension. An orderunder CPR rule 6.15 necessarily has the effect of further extending it. Forthese reasons it has never been enough that the defendant should be aware
of the contents of an originating document such as a claim form. Otherwiseany unauthorised mode of service would be acceptable, notwithstanding thatit fulfilled none of the other purposes of serving originating process.”
The second limb of D3’s argument under this head was that a failure to include anaddress in a claim form is not a defect capable of being remedied under CPR 3.9 or3.10. It is convenient to start with the wording of these Rules, which provide as follows:
“Relief from sanctions
On an application for relief from any sanction imposed for a failure tocomply with any rule, practice direction or court order, the court willconsider all the circumstances of the case, so as to enable it to deal justlywith the application, including the need –
for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
An application for relief must be supported by evidence.
General power of the court to rectify matters where there has been an error
of procedure
Where there has been an error of procedure such as a failure to comply
with a rule or practice direction –
the error does not invalidate any step taken in the proceedings unless the
court so orders; and
the court may make an order to remedy the error.”
D3 argues that the Claimant cannot rely on CPR 3.10 to remedy any breach in relation
to the service of a claim form without an address for three reasons, because:
CPR 3.10 is a provision of general application which cannot be used to overridespecific provisions that address the consequences of non-compliance with a rule;
CPR 3.10 is only relevant where a party has taken a relevant step defectively
and not where it has failed to take that step at all;
The Court should exercise its discretion to declare service invalid.
D3’s first contention is that CPR 3.10 cannot be used to overcome specific provisions
of the Rules. This is said to follow from the decisions of the Court of Appeal in IdealShopping v Mastercard [2022] EWCA Civ 14 at paragraphs 145-146, where the Courtsaid this:
The second ground of appeal concerns the scope of rule 3.10 andwhether it is available in principle in this case. It is important to analyse
correctly what is the error of procedure which the appellants are asking theCourt to remedy. They are in substance asking the Court to treat the serviceof unsealed amended claim forms as good service and to dispense with therequirement for any further service. Those are matters to which rules 6.15and 6.16 are applicable and yet the appellants' applications under thoseprovisions were refused. It is also important to note that none of theappellants' applications included an application for an extension of timeunder rule 7.6(3) for service of the sealed amended claim forms. Yet, inseeking to remedy the defect in service, the appellants are, in a very realsense, seeking to achieve the same result as would a successful applicationunder rule 7.6(3) .
It follows that the appellants are asking the Court to do the very thingwhich Vinos and the line of authority which follows it does not permit. Thegeneral provision in rule 3.10 cannot be used to override a specificprovision, here rule 6.15 or rule 6.16. The appellants could not satisfy the“good reason” or “exceptional circumstances” criteria under those tworules and they are not permitted to use rule 3.10 to bypass the requirementsof those specific provisions. Likewise, since the appellants could not havesatisfied condition (b) of rule 7.6(3) , as they could not have shown that theyhad taken all reasonable steps to comply with rule 7.5 or that they had beenunable to do so, they cannot be permitted to use rule 3.10 to bypass therequirements of rule 7.6(3) .”
That was a case in which unsealed claim forms had been served in time, but no sealedclaim forms had been served until out of time. The point being made by the Chancellorof the High Court was that in order to validate service, an application under CPR 6.15or 6.16 would have had to have been made, and was not, or an application under CPR7.6(3) would have had to have been made but was not. In essence, the Claimants hadmade the wrong application, there being more specific ways of achieving the desiredends with superadded requirements. The need to comply with the superaddedrequirements could not be avoided by reliance on CPR 3.10.
D3 also relied on the decision in Vinos v Marks and Spencer PLC [2001] 3 All ER 784,
at [20] in which the Court of Appeal said this:
The meaning of rule 7.6(3) is plain. The court has power to extend thetime for serving the claim form after the period for its service has run out“only if” the stipulated conditions are fulfilled. That means that the courtdoes not have power to do so otherwise. The discretionary power in the rulesto extend time periods rule 3.1(2)(a) - does not apply because of theintroductory words. The general words of Rule 3.10 cannot extend to enablethe court to do what rule 7.6(3) specifically forbids, nor to extend time whenthe specific provision of the rules which enables extensions of timespecifically does not extend to making this extension of time. What Mr Vinosin substance needs is an extension of time calling it correcting an error doesnot change its substance. Interpretation to achieve the overriding objectivedoes not enable the court to say that provisions which are quite plain meanwhat they do not mean, nor that the plain meaning should be ignored. Itwould be erroneous to say that, because Mr Vinos' case is a deserving case,the rules must be interpreted to accommodate his particular case. The first
question for this court is, not whether Mr Vinos should have a discretionaryextension of time, but whether there is power under the Civil Procedure Rulesto extend the period for service of a claim form if the application is madeafter the period has run out and the conditions of rule 7.6(3) do not apply.The merits of Mr Vinos' particular case are not relevant to that question.Rule 3.10 concerns correcting errors which the parties have made, but it doesnot by itself contribute to the interpretation of other explicit rules. If you thenlook up from the wording of the rules and at a broader horizon, one of themain aims of the Civil Procedure Rules and their overriding objective is thatcivil litigation should be undertaken and pursued with proper expedition.Criticism of Mr Vinos' solicitors in this case may be muted and limited to oneerror capable of being represented as small; but there are statutorylimitation periods for bringing proceedings. It is unsatisfactory with apersonal injury claim to allow almost three years to elapse and to startproceedings at the very last moment. If you do, it is in my judgment generallyin accordance with the overriding objective that you should be required toprogress the proceedings speedily and within time limits. Four months is inmost cases more than adequate for serving a claim form. There is nothingunjust in a system which says that, if you leave issuing proceedings to the lastmoment and then do not comply with this particular time requirement and donot satisfy the conditions in rule 7.6(3), your claim is lost and a new claimwill be statute barred. You have had three years and four months to get thingsin order. Sensible negotiations are to be encouraged, but protractednegotiations generally are not. In the present case, there may have been anacknowledged position between the parties that the defendants' insurerswould pay compensation; but it is not suggested that they acted in any waywhich disabled the defendants in law or equity from relying on the statutorylimitation provisions and on the Civil Procedure Rules as properlyinterpreted.”
D3 argued that this case again showed that a more specific provision of the Rulestrumped the general provisions of CPR 3.10, particularly because the provision of CPR7.6(3) specifically stated that a retrospective extension could be granted “only if” thefurther provisions of that rule were satisfied.
D3 argued that on their true construction, the provisions of CPR 16.2(1)(e) read togetherwith PD 16.2.1, is that the claim form is not to be served. Where the period for servicehas expired, then an application for an extension can be made, which is what happenedin the Municipio de Mariana case.
CPR 3.10 could not be read so as to “paper over” the Claimant’s breach. In this regard,reliance was placed on the decision of Foxton J in Serbian Orthodox Church v Kesar &Co [2021] EWHC 1205 (QB), at 51, where the judge said:
I must confess to having some difficulty with the suggestion that CPR3.10 could be relied upon to validate a defect in service where, for example,service had been effected by email without permission to serve at that emailaddress, in any case in which relief could not have been obtained under CPR6.15 . A particular difficulty with CPR 3.10 is that, if it is applicable toservice errors, CPR 3.10(a) would appear automatically to validate serviceunless the Court ordered otherwise. That, with respect, is a surprising
proposition, and an approach which requires the party seeking to validateservice to seek and obtain an order from the court seems inherently moreappropriate.
Further, the reasoning which commended itself to Nicklen J and MorganJ – that CPR 3.10 as a provision of general application must yield to the morespecific provisions on service in, for example, CPR 6.15 , 6.27 and CPR7.6(3) – also commends itself to me, for conventional legal reasons andbecause it has strong support from the majority of the Supreme Courtin Barton , [8] when addressing a similar argument as the interrelationshipof CPR 3.9 and CPR 6.15 . In these circumstances, I have concluded that ifthe Appellant is to validate the service of the notice of commencement, it mustpersuade the court to make an order under CPR 6.27 .”
Finally, D3 argued that if CPR 3.10 could be relied on to cure service of a defectiveclaim form in breach of the practice direction, this would render the need to apply for adispensation, an important principle of open justice, a nullity.
For her part, C made a number of points under this head.
First, the wording of PD 16.2.3 is, on its proper construction, addressed at the
default situation under CPR 6.4, where it is the Court which serves the claimform, unless (per CPR 6.4(1)(b)) C notifies the Court that C wishes to serve it.What PD 16.2.3 makes clear is that, in the default scenario, the Court has adiscretion not to serve the claim form unless and until there is ‘a full address’for ‘all parties’. The Court ‘will notify’ the claimant one way or the other uponits exercise of that discretion. That provision is most obviously directed atscenarios where there is no address specified for the defendant to be served,and/or where there is no service address for C, such that service may beimpossible or lead to subsequent practical difficulty for the defendant. Theprovision is not engaged where it is C that will be doing the serving. In thatscenario the claim form is not ‘retained’ but released to C for her to serve. Thatis what happened here.
Second, whilst C acknowledges that it is a technical error for the claim form toprovide an address for service but not an address (in addition) for C (see PD16.2.1), that error does not, without more, invalidate service. There are no wordsin CPR PD 16 which provide for such an outcome, nor is there any reason inprinciple for service to be invalidated (with all the nuclear consequences whichmay flow from that in proceedings) simply because the claimant’s personaladdress is not included on the claim form. It has caused D3 absolutely noprejudice (in particular where an address for service was given) and would be theultimate triumph of form over substance.
Third, C’s construction is supported by the fact that under CPR 3.10 ‘wherethere has been an error of procedure such as a failure to comply with a rule orpractice direction – (a) the error does not invalidate any step taken in the
proceedings unless the court so orders; and (b) the court may make an order toremedy the error’: see the useful summary of authorities involving claim formsin Boxwood LeisureLimited v Gleeson [2021] EWHC 947 (TCC). In that case,the judge said as follows:
“Whilst that power cannot be used to circumvent morespecific provisions dealing with the retrospectivevalidation of service (where engaged) (Ideal ShoppingDirect Ltd v Mastercard Inc [2022] 1 WLR 1541), CPR3.10 reflects and encapsulates a more general principlethat technical errors should not be construed or appliedin a manner which allows form to triumph oversubstance, in particular where they cause no prejudiceto the other side.”
Fourth, D3’s construction of PD 16. 2.3 cannot be right, having regard to
CPR 25.13(2)(e):
That provision sets out, as one gateway condition for the purposes ofsecurity for costs, that ‘the claimant failed to give his address in the claimform, or gave an incorrect address in the claim form.’
This presupposes that a claim form can be issued and validly servedwithout such an address. Otherwise the proceedings would never reachthe stage at which security for costs became relevant.
The CPR notes at 25.13.13 make clear that even where this condition issatisfied ‘the court’s power to order security is discretionary; it must besatisfied, having regard to all the circumstances of the case, that it is justto make such an order.’ In Beriwala v Woodstone Properties(Birmingham) Limited [2021] EWHC 6 (Ch) the Court refused to ordersecurity where the Claimant had deliberately omitted their apartmentnumber from their address on the claim form due to concerns for hersafety and security (see §§32-49). The Court referred to the breach as‘technical’ and ‘minor’ (§48) and held that it would not be just in all thecircumstances to order security. There was absolutely no suggestion thatthe failure to provide a full address in some way invalidated service.
Turning to the related question of the applicability of CPR 3.10, C relied on the verygeneral wording of CPR 3.10, which I have set out above. The defect here was thefailure to include C’s address. The Rule is clear in stating that no failure to comply witha practice direction or rule would invalidate a step taken in the action. D3’s contentionwas flatly counter to that proposition, since it involved the proposition that the failureto comply with the provisions of Part 16 and PD16 did indeed invalidate a step takenin the action, namely the action of service.
The Claimant relied on the summary of the relevant principles in Boxwood Leisure vGleeson [2021] EWHC 947 (TCC), at paragraph 43, which, following a review of therelevant case law, states as follows:
In Dory Acquisitions Designated Activity Company v Ioannis Frangos[2020] EWHC 240 (Comm) the claimant sought a declaration thatproceedings were validly served on the defendant in circumstances where theclaim form served did not have a court seal or claim number on its face.Bryan J rectified the irregularity in the claim form by applying CPR 3.10:
[76] The guidance of the House of Lords in Phillips v Nussberger andsubsequent cases can be summarised as follows:
The guidance in Phillips v Nussberger is authoritative obiter dicta.
CPR rule 3.10 is a beneficial provision to be given a very wide effect. Itcan be used beneficially where a defect has no prejudicial effect to the otherparty and to prevent the triumph of style over substance. (See Bank ofBaroda at [17].) CPR rule 3.10 can apply even where the defect constitutesa failure to serve sufficient claim forms on defendants or a failure to deliverthe correct claim form to the correct defendants or even where a defendantreceived no claim form at all, only an acknowledgement of service form inthe context of service of claim forms on multiple defendants (see the GoldeanMariner [1990] 2 Lloyd's Reports 215 discussed in Phillips v Nussberger,Integral Petroleum and the Bank of Baroda ). This interpretation of CPRrule 3.10 applies to originating processes as much as it does to otherprocedural steps (see Bank of Baroda at [19]).
In view of this broad guidance, the most important question indetermining whether CPR rule 3.10 applies is whether there has been anerror of procedure which might otherwise invalidate a procedural step. Thiswould be more difficult where there has been, for example, a complete failureof service Bank of Baroda at [17]).
Another important factor to consider is whether the defendant hassuffered any prejudice as a result of the procedural error. The court has inthe past used its powers under CPR rule 3.10 to remedy service of anunsealed claim form without a claim number where the service of that claimdid not deprive the defendant of any knowledge of the fact that theproceedings had been or were about to be started or the nature of the claimagainst it (see Heron Bros Limited v Central Bedfordshire Council [2015]EWHC 604 (TCC), at [16]and below).
Whether the defect was the fault of the applicant is considered, but it is asubsidiary factor.”
In Piepenbrock v Associated Newspapers Ltd & others [2020] EWHC1708 (QB) , the claimant's wife purported to serve the claim form by emailon solicitors for the defendants, without obtaining confirmation that theywere instructed to accept service or that service could be effected by email.The purported service was invalid and the four month period for service of
the claim form expired. Nicklin J refused the claimant's applicationunder CPR 7.6(3) for a retrospective extension of time to serve the claimform, also rejecting the alternative grounds under CPR 6.15 and 6.16 , CPR3.9 and CPR 3.10 , relying on the decisions in Integral and Bank ofBaroda (above). Having considered those cases, Nicklin J stated:
“[81] These two cases were decided before the Supreme Court decisionin Barton. The comments as to whether CPR 3.10 can validate an error inserving a Claim form are strictly obiter and there is a consistent line ofauthority that suggests that CPR 3.10 cannot be used to rescue a claimantwho, having failed to serve the Claim form by a permitted method, cannotbring him/herself within CPR 7.6 , 6.15 or 6.16 : see Vinos ; Kaur …
[82] My conclusion is that CPR 3.10 cannot assist the Claimant in this case:i) I consider that Barton is a clear statement of the underlying principles asto the importance of serving the Claim form in accordance with the CPR .
CPR 3.10 was not referred to in Barton yet, if the argument as to the widthof the rule were correct, it would appear to have been an obvious solution toMr Barton's predicament. In my view, the analysis of Lord Sumption as towhy CPR 3.9 is inapt would apply equally to CPR 3.10 .
If CPR 3.10 is given an interpretation that permits the Court,retrospectively, to validate service not in accordance with the CPR on thebasis that there has been a “ failure to comply with a rule ”, then that wouldmake CPR 6.15(2)redundant. That would be a surprising result as the termsof CPR 6.15(2) are of specific operation whereas CPR 3.10 is of generalapplication. Further, as noted in Godwin the effect would be “ tantamount togiving the court a discretionary power to dispense with statutory limitationperiods ”. This would be contrary to the clear policy statement in Barton .
Steele -v- Mooney [18]-[19] appears to contain the clearestpre- Barton statement that CPR 3.10 cannot be used in this way.
CPR 3.10 gives the court a discretion. This must be exercised inaccordance with the overriding objective of dealing with cases justly. Ifremedying one party's error will cause injustice to the other party, then thecourt is unlikely to grant relief under the rule. This gives the court thenecessary control to ensure that the apparently wide scope of rule 3.10 doesnot cause unfairness.
The general language of rule 3.10 cannot be used to achieve somethingthat is prohibited under another rule. This is the principle establishedby Vinos…
Following the oral hearing of the application in this case, judgment washanded down on another case in which this issue was considered,namely, Ideal Shopping Direct Ltd & Others v Visa Europe Ltd & Others[2020] EWHC 3399 (Ch) . I am grateful to the parties for their diligence andco-operation in drawing to the Court's attention this further authority. The
claimants served unsealed claim forms by the agreed extended date forservice but the sealed claim forms were served after expiry of that date.Morgan J refused to grant relief under CPR 6.15 , providing for alternativemeans of service, or 6.16 by dispensing with service. Having considered theauthorities on CPR 3.10 , he stated at [92]:
“Having considered the authorities, I conclude that I should follow theapproach in Piepenbrock and hold that rule 3.10does not enable me to find(under rule 3.10(a) ) that there has, after all, been valid service on theDefendants or that I should make an order (under rule 3.10(b) ) remedyingthe Claimants' error as to service. If it is not possible to distinguish IntegralPetroleum or Bank of Baroda as to the scope of rule 3.10 , then I would haveto choose between those two decisions and the decision in Piepenbrock. I findthe reasoning in Piepenbrock to be more persuasive and I would follow it. Itmay be that it is my duty to follow Piepenbrock unless I considered that itwas wrong: see Colchester Estates v Carlton plc [1986] Ch 80 . As to that, Ido not think Piepenbrock is wrong.”
Drawing together the principles that are relevant for determining theapplication before the court, they can be summarised as follows:
If a claimant applies for an extension of time for service of the claim formand such application is made after the period for service specified in CPR7.5(1), or after any alternative period for service ordered under CPR 7.6, thecourt's power to grant such extension is circumscribed by the conditions setout in CPR 7.6(3): Barton v Wright Hassall at [8] & [21]; Vinos v Marks &Spencer at [20] & [27].
The court has a wide, general power under CPR 3.10 to correct an errorof procedure so that such error does not invalidate any step taken in theproceedings: Phillips v Nussberger at [30]-[32]; Steele v Mooney [19]-[20].
In the cases cited where the power under CPR 3.10 was exercised, therewas a relevant, defective step that could be corrected: Steele vMooney (defective wording of application for an extension of time); Phillipsv Nussberger, Bank of Baroda, Dory (ineffective steps taken to serve theclaim form on the defendants); Integral (defective service of particulars ofclaim). Doubts have been expressed as to whether CPR 3.10 could or wouldbe used where no relevant procedural step was taken: Integral at [29]; Bankof Baroda at [17]; Dory at [76].
The court also has a wide, general power under CPR 3.9 to grant relieffrom any sanction imposed for a failure to comply with any rule, practicedirection or court order: Denton v White [2014] 1 WLR 3926 at [23] – [36].
A claimant is not entitled to rely on the wide, general powers under CPR3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3)for extending the period for service of a claim form: Vinos v Marks &Spencer plc at [20] & [27]; Kaur v CTP at [19]; Elmes v Hygrade at
[13]; Godwin v Swindon BC at [50]; Steele v Mooney at [19] &
[28]; Piepenbrockat [81] & [82]; Ideal v Visa at [92].”
The summary of principles in the last paragraph cited above was referred to withapproval by Foxton J in the case of Serbian Orthodox Church, to which I have madereference above, and I gratefully adopt it.
Here, C contended, here are no words in PD 16 which specifically say
that a failure to include an address invalidates service;
There are no alternative bases which seek validation of such a claim form
on grounds which are exhaustive;
The wording of CPR 3.10 is entirely general, and the authoritiesconstruing that provision militate in favour of a generous interpretation;
Any discretion should be exercised in favour of the Claimant, given the
absence of prejudice to D3.
Discussion and conclusions.
First, I can say that I do not regard the fact that I have granted the application to dispense
with the address of C in the claim form as really relevant to this question as to thevalidity of service. If the claim form has not been validly served, then this Court wouldhave had no jurisdiction; the claim form would have expired before now; and therewould thus be no valid form which a dispensation could be given by reference to. Putanother way, the two issues (i.e. dispensation from inclusion of the address goingforward and invalidity of service) raise different considerations. The first has to do withconsiderations of confidentiality, open justice and, in this case, continuing personalsafety. The second has to do with the question of whether service of the claim form wasvalidly effected when served (which was within the period of its validity), or whetherit is right that a claim form without an address is incapable of being served.
I have concluded that, in this latter regard, C’s contentions are to be preferred. I reach
this conclusion for the following reasons.
First, and perhaps most importantly, I do not accept that PD 16 provides for anexpress sanction for non-compliance with the requirement to provide an addresswhere, as here, the Court stamps the claim form and then leaves it to C to effectservice, which is the normal regime in the Commercial Court.
Nor do I accept that a sealed claim form without an address can be equated withan unsealed claim form. In the latter case, the document is not an official Courtdocument at all. It is, as Mr Peto KC put it, simply a piece of paper. In theformer, it is an official Court document, but contains a defect.
In my judgment, such a defect is capable of cure by reference to CPR 3.10. I donot accept the submission that PD 16 is a more specific regime than CPR 3.10in the same way as CPR 7.6(3) has been held to be. The Practice Direction hasno specific wording akin to that in CPR 7.6(3); it contains no superaddedrequirements such as those laid down in provisions such as 7.6(3). Nor are any
of the cases cited and summarised in the Boxwood Leisure case, which I have
set out above, similar to the current case.
In my view, as Mr Pilbrow KC fairly accepted, there is no authority directly onpoint. As the Court of Appeal put it in the Pitalia case, cited above, civillitigation is beset with technicalities as it is. Absent clear wording in the Rules,which I have concluded does not exist in this case, further technicalities shouldnot be encouraged.
I have borne in mind throughout the importance of the principles of open justice.However, in a case such as the present, it is quite clear to me that, had anapplication been made at the outset, a dispensation from the requirement toinclude the address would have been granted, I do not think that therequirements of open justice lead to the conclusion that service of a claim formwithout an address is invalid. As I have indicated, that is not to say that mydecision to allow dispensation answers the question of service – it does not.However, equally, the principle of open justice does not lead to the automaticconclusion that a claim form which does not comply with the requirements ofCPR in relation to the inclusion of an address cannot be validly served. Instead,I have concluded that the failure to include an address does not invalidate serviceand can be remedied under CPR 3.10.
Finally, I make clear that I reject the submission that I should not exercise my
discretion under CPR 3.10 to remedy the defect.
It follows that I conclude that service was validly effected on D3 notwithstanding the
lack of an address on the claim form.
Waiver.
Waiver pursuant to the provisions of CPR 11.
I turn then to the question of waiver. Two questions were argued under this head. In this regard,
I was referred to Dicey, Morris and Collins on the Conflict of Laws, at 11-067 to 11-068, inwhich it is stated that:
11-067. In order to establish that the defendant has, by its conduct in theproceedings, submitted or waived its objection to the jurisdiction, it must beshown that it has taken some step which is only necessary or only useful ifthe objection has been waived or never been entertained at all. In DeutscheBank AG v Petromena ASA the Court of Appeal held that there are two typesof waiver which might give rise to a submission to the jurisdiction. First,there is “common law waiver”, which is the performance of an act which isinconsistent with maintaining a challenge to the jurisdiction. Such an actmust clearly convey to the claimant and the court that the defendant isunequivocally renouncing its right to challenge the jurisdiction. In judgingthis, it is useful to consider whether a disinterested bystander with knowledgeof the case would regard the acts of the defendant (or the defendant’ssolicitor) as inconsistent with making and maintaining a challenge to thejurisdiction. Secondly, there can be a statutory form of submission to thejurisdiction, as in CPR, r.11(5) and (8), for example by filing an
acknowledgment of service of proceedings, but then failing to make anyapplication to dispute the court’s jurisdiction or failing in that application.In that situation the “disinterested bystander test” has no application; thesole issue is whether the conditions of those paragraphs have been met.In Jameel v Dow Jones & Co Inc it was held that, even if the defendant hadsubmitted to the jurisdiction, it could apply for proceedings to be struck outas an abuse of the process on the ground that there had been no real andsubstantial tort within the jurisdiction.
11-068 Submission, in the form of common law waiver has been inferredwhen the defendant applied to strike out part of the claim. It has also beeninferred when the defendant filed affidavits and appeared through counsel toargue the merits on the claimant’s application for an injunction; when thedefendant consented inter partes to the continuance of a freezing injunctionwithout reserving its right to contest the jurisdiction; when the defendantsought to set aside a committal order and gave an undertaking and submittedevidence; when the defendant moved to set aside a default judgment and atthe same time applied for an order that the claimant deliver a statement ofclaim; and when a defendant applied for an order for security for costs. Whena defendant had unsuccessfully challenged the jurisdiction and had filed asecond acknowledgment of service and then sought permission to appeal itwas to be treated as submitting to the jurisdiction of the court. This is waiverof the second type. The clear trend of the modern authorities is that thedefendant will not be regarded as having submitted by making an applicationin the proceedings, provided that the defendant has specifically reserved itsobjection to the jurisdiction.
As regards the first type of situation, CPR Part 11 provides as follows:
Procedure for disputing the court’s jurisdiction
11
A defendant who wishes to –
dispute the court’s jurisdiction to try the claim; or
argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdictionor should not exercise any jurisdiction which it may have.
A defendant who wishes to make such an application must first file anacknowledgment of service in accordance with Part 10.
A defendant who files an acknowledgment of service does not, by doingso, lose any right that he may have to dispute the court’s jurisdiction.
An application under this rule must –
be made within 14 days after filing an acknowledgment of service; and
be supported by evidence.
If the defendant –
files an acknowledgment of service; and
does not make such an application within the period specified inparagraph (4),
he is to be treated as having accepted that the court has jurisdiction to try
the claim.
An order containing a declaration that the court has no jurisdiction orwill not exercise its jurisdiction may also make further provision including –
setting aside the claim form;
setting aside service of the claim form;
discharging any order made before the claim was commenced or before
the claim form was served; and
staying the proceedings.
If on an application under this rule the court does not make a declaration
–
the acknowledgment of service shall cease to have effect;
the defendant may file a further acknowledgment of service within 14 days
or such other period as the court may direct; and
the court shall give directions as to the filing and service of the defencein a claim under Part 7 or the filing of evidence in a claim under Part 8 inthe event that a further acknowledgment of service is filed.
If the defendant files a further acknowledgment of service in accordancewith paragraph (7)(b) he shall be treated as having accepted that the courthas jurisdiction to try the claim.
If a defendant makes an application under this rule, he must file and servehis written evidence in support with the application notice, but he need notbefore the hearing of the application file –
in a Part 7 claim, a defence; or
in a Part 8 claim, any other written evidence.
In relation to this argument, D3 argued that there had been an acknowledgment ofservice; that this indicated an intention to dispute jurisdiction; that an application hadthen been made within the time period provided by the Rule; and thus the provisions ofCPR 11(5) were not engaged. I was also referred to CPR 58.7(2). That Rule states that,
in the Commercial Court, the period for serving an application under CPR Part 11 was28 days. The effect of CPR 58.7(2) is to extend the time for making an application from14 days to 28 days. This time limit was complied with.
C argued that, because the original application was not made on the basis of inadequateservice, there had been no application within the 28 day time limit provided for in CPR58.7(2). In such circumstances, C contended, a retrospective extension of time for theapplication would be needed, and no application for such had been made.
I reject C’s contention. In my judgment, clearly here there was an application underCPR 11, in which D3 contested the Court’s jurisdiction. It is quite true that thatapplication was made on the ground of forum non conveniens. However, in myjudgment, this was sufficient to comply with the requirements of CPR 11. I have notoverlooked, in this connection, the decision in IMS SA v Capital Oil and Gas IndustriesLimited [2016] EWHC 1956 (Comm), in which it was said that normally challenges tothe jurisdiction of the Court (based, for example, on invalid service) and challenges tothe exercise of that jurisdiction (based, for example, on forum non conveniens grounds)should be made in one application. However, although this is the normal practice, I donot think it follows that, prior to the hearing of the jurisdiction challenge, a party maynot raise a further jurisdictional challenge.
I turn to consideration of common law waiver.
Common law waiver: The Claimant’s contentions.
First, as I have explained above, the Claim form was served on D3 at Heathrow on 15
July 2022.
On 28 July 2022, D3 filed an acknowledgement of service. In that acknowledgement
D3 indicated her intention to contest jurisdiction.
On 11 October 2022, D3 made an application to challenge jurisdiction. That applicationwas made on the basis that the Court should not exercise jurisdiction on forum nonconveniens grounds.
In the witness statement supporting that challenge, D3’s solicitors stated that she “doesnot dispute that she has been served within the jurisdiction for the purposes of CPR 6.5.Her jurisdiction challenge is on the grounds of forum non conveniens.”
C drew attention to the important distinction between an allegation that the Court hasno jurisdiction to exercise and an allegation that the Court should not exercise thejurisdiction that it does have: see the IMS case, referred to above, in which the judgesaid this:
Procedural points
Mr Kenny put his argument on abuse of process on the grounds that thepresent application was a second application for the same or substantiallythe same relief, relying on The Laemthong Glory [2015] 1 Lloyd's Rep 100and Rawlinson v ITG [2015] EWHC 1664 (Ch) for the proposition that thecourt will treat such a second bite at the cherry as an abuse where the
material relied on in the second application was available at the time of the
first application and there has been no material change of circumstance.
However this is not an application for the same or substantially the samerelief as the first jurisdiction challenge. It is well known that in the context ofchallenges to jurisdiction, reference to the Court's jurisdiction can be ashorthand for two different concepts: one is the court's jurisdiction to try theclaim on its merits; the other is the court's exercise of its jurisdiction to trythe claim (see, for example Hoddinott v Persimmon Homes (Wessex) Ltd[2007] EWCA Civ 1203, [2008] 1 WLR 806at [28]). Leaving aside casescovered by the Lugano Convention and recast Brussels 1 Regulation, serviceof process is the foundation of the court's jurisdiction to entertain a claim inpersonam, and accordingly the court has such jurisdiction only where thedefendant is served, in England or abroad, in the circumstances authorisedby, and in the manner prescribed by, statute or statutory order (typicallythe CPR ): see Dicey Morris and Collins The Conflict of Laws 15th edn. Rule29 . Where there has been no such service, the court does not havejurisdiction. Where such jurisdiction has been established by service ofprocess, the Court may nevertheless decline to exercise its jurisdiction, forexample on grounds of forum non conveniens or lis alibi pendens.
The two types of challenge are logically and juridically separate anddistinct. Moreover they typically involve different forms of relief. Wherethere has been no valid service necessary to found in personam jurisdiction,the court will set aside service and set aside the claim form. On the otherhand where the challenge is to the exercise of jurisdiction on grounds offorum non conveniens, the appropriate relief is usually a stay of proceedings,which is capable of being lifted, if appropriate, in the light of subsequentevents.
As Mr Cutress correctly emphasised, Capital's first jurisdiction challengewas concerned only with service and was a challenge to the existence of thecourt's jurisdiction; whereas this application, as now pursued solely onforum non conveniens grounds, is a challenge to whether the court shouldexercise its jurisdiction.”
In those circumstances, C submitted that D3 has clearly and unequivocally waived herright to contest service. In this context, C relied on Dicey and Morris at 11-067 to 11-068, and on Williams & Glyns Bank v Astro Dynamico [1984] 1 WLR 438, at 444. D3knew the relevant facts, having received the claim form without an address. D3 hadclearly represented in her witness statement that she accepted she had been validlyserved. There was detrimental reliance in that the parties had been preparing for a yearfor a forum non conveniens application, with no indication that there was any intentionto contend that there had been no valid service. In those circumstances, D3 had electednot to rely on a right to challenge service, or was estopped from doing so.
In relation to this separate question of whether, by her conduct, D3 had waived the rightto challenge jurisdiction, Mr Pilbrow KC, for D3, argued firstly, that because the needfor an address on the claim form attracted a public interest, the parties could not waivethe requirement. I can deal with this argument briefly, since I do not accept it. Thequestion of whether the claim form should have contained an address (which is the
question which relates to open justice) and the question of whether D3 has waived theright to rely on this to challenge jurisdiction are two entirely separate questions in myview. In essence, D3 is seeking to rely on the failure to include the address in relationto her entirely private rights to assert a want of jurisdiction in the English Courts. Thepublic interest in having an address on the Claim form is an entirely separate one.
Secondly, he argued that the requirements for a waiver were not satisfied on the facts,because D3 and her legal representatives had not made the necessary unequivocalrepresentation and because they did not have the requisite knowledge of the facts tojustify a waiver. In relation to this latter point, he relied on the decision of the House ofLords in Kammins Ballrooms v Zenith Investments [1971] AC 850. That was a case inwhich an application had been made for a new tenancy under the Landlord and TenantAct 1954.
The headnote of the case reads as follows:
“On August 2, 1968, the tenants of business premises made a request for a
new tenancy under section 26 of the Landlord and Tenant Act 1954 . Thelandlords served a counter-notice indicating that they would oppose anapplication to the court under section 24 . On September 4, 1968, the tenantsfiled an application for a grant of a new tenancy to which the landlords filedan answer, taking no objection to the application being premature. OnDecember 5, 1968, the landlords' solicitors wrote to the tenants informingthem that they would make a preliminary objection at the hearing of theapplication, that the tenants' application was invalid since it had been madeless than two months after the request for a new tenancy, contrary to section29 (3) of the Act, and accordingly the application could not be entertainedby the court. The county court judge refused the application, holding thatsection 29 (3) went to the jurisdiction of the court and could not be the subjectof estoppel or waiver. The Court of Appeal, by a majority, affirmed thatdecision.
The tenants appealed:-
Held:
(Viscount Dilhorne dissenting), that, the requirements of section 29 (3) ofthe Landlord and Tenant Act, 1954 , were only procedural, and consequentlythe landlords had a right to ignore or object to the tenants' prematureapplication but could not waive that right.
(Lord Reid and Lord Pearson dissenting), that, in the circumstances, thelandlords had not waived their right to object that the application was bad,and that, accordingly the appeal must be dismissed.”
In particular, reliance was placed on the following passage from the speech of Lord
Morris:
“It is not suggested that by that date (October 17) the point as to the date ofthe initiation of the proceedings had occurred to anyone. So the letter waswritten in good faith and there was no misunderstanding between the
solicitors. I see no basis for a contention that by writing the letter of October17, the landlords waived the taking of any point that might later occur toanyone. Whether any point could be taken would depend upon whether therewas any procedural bar.
I do not think that because of knowledge of fibs and dates (a knowledgeshared by both parties) some deemed understanding or appreciation of thetime point is to be imputed to them but even if it were so the letters do notsuggest or promise any limitation of the arguments which either party woulddecide to advance at the hearing either in support of or in opposition to theclaim of entitlement to a new lease.”
In this case, what is said by D3 is that:
Whilst she and her legal representatives knew that the claim form had no address
when it was served, it was only appreciated that this involved a failure to makean application for a dispensation when the bundle for this hearing was produced;
The statement relied on by the Claimant was therefore made in ignorance of the
full facts and/or legal rights;
In these circumstances there was no waiver by election or estoppel.
Discussion and conclusions.
In my judgment, it is clear from the well known decision of the House of Lords in The
Kanchenjunga [1990] 1 Lloyd’s Rep. 391, that the term waiver is used to connote twodistinct concepts, namely election, in the sense of a choice between inconsistent legalrights, or estoppel, in the sense of a representation that binds the representor. As LordGoff put it in that case:
“Election is to be contrasted with equitable estoppel, a principle associatedwith the leading case of Hughes v. Metropolitan Railway Co., (1877) 2App.Cas. 439. Equitable estoppel occurs where a person, having legal rightsagainst another, unequivocally represents (by words or conduct) that he doesnot intend to enforce those legal rights; if in such circumstances the otherparty acts, or desists from acting, in reliance upon that representation, withthe effect that it would be inequitable for the representor thereafter to enforcehis legal rights inconsistently with his representation, he will to that extentbe precluded from doing so.
There is an important similarity between the two principles, election andequitable estoppel, in that each requires an unequivocal representation,perhaps because each may involve a loss, permanent or temporary, of therelevant party’s rights. But there are important differences as well. In thecontext of a contract, the principle of election applies when a state of affairscomes into existence in which one party becomes entitled to exercise a right,and has to choose whether to exercise the right or not. His election hasgenerally to be an informed choice, made with knowledge of the facts givingrise to the right. His election once made is final; it is not dependent uponreliance on it by the other party. On the other hand, equitable estoppel
requires an unequivocal representation by one party that he will not insistupon his legal rights against the other party, and such reliance by therepresentee as will render it inequitable for the representor to go back uponhis representation. No question arises of any particular knowledge on thepart of the representor, and the estoppel may be suspensory only.Furthermore, the representation itself is different in character in the twocases. The party making his election is communicating his choice whether ornot to exercise a right which has become available to him. The party to anequitable estoppel is representing that he will not in future enforce his legalrights. His representation is therefore in the nature of a promise which,though unsupported by consideration, can have legal consequences; hence itis sometimes referred to as promissory estoppel.”
Looking at each of these doctrines in turn, I am satisfied that D3 has elected not tochallenge service, and that D3 is estopped from doing so. I reach this conclusion for thefollowing reasons.
In relation to election, it is necessary to show that D3 had knowledge of therelevant facts; knowledge of the legal right in question; and elected not to relyon that legal right. Here, the legal right was to contend that the English Courtdid not have jurisdiction; the facts relied on were that the Claim form did notinclude an address and that no application had been made for dispensation forincluding such; and that this meant that service was not validly effected. D3clearly knew that the Claim form did not include an address when served. Onthe evidence put before me, which was skeletal, to say the least, I am notsatisfied that D3 and her legal representatives thought that a dispensation forincluding an address had been asked for and given. In these circumstances, Ifind that there has been an election not to rely on a failure to effect properservice.
In relation to estoppel, in my judgment the position is clearer still. As I havenoted, at the time that the jurisdictional challenge was mounted, two types ofchallenge could be mounted. One would be on the ground that the English Courthad no jurisdiction; the other would be that the Court should not exercise thejurisdiction that it has. The application in fact made was on the latter basis, andthe witness statement served in support expressly accepted that no challengebased on a failure to serve validly could be made. This was the clearest possiblerepresentation that service was accepted, and that the jurisdiction of the EnglishCourt was therefore accepted. Given that the parties have been proceeding onthis basis for well over a year and incurring expense on this basis, in myjudgment it would clearly be inequitable to permit D3 to resile from thisposition.
Accordingly, I accept that D3 has waived the right to rely on any contention that servicewas not validly effected with the result that the English Court does not have jurisdiction.The sole remaining question is whether that jurisdiction should be exercised, which isthe forum non conveniens issue which remains to be determined.
The application to set aside the order for alternative service.
The next matter with which I am concerned is the application, by D1 and D2, to set
aside the order for alternative service.
The relevant test.
It was common ground between the parties that neither Jordan nor Saudi Arabia is party
to the Hague Convention or any other bilateral convention governing service.
In those circumstances, C submitted that the relevant test is that laid down by thedecision of the Supreme Court in Abela v Baadarani [2013] UKSC 44. In view of theimportance of this issue, I set out the relevant paragraphs of that case in full. LordClarke said as follows:
Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can bemade only if there is a “good reason” to do so. The question, therefore, iswhether there was a good reason to order that the steps taken on 22 October2009 in Beirut to bring the claim form to the attention of the respondentconstituted good service of the claim form upon him. The judge held thatthere was. In doing so, he was not exercising a discretion but was reachinga value judgment based on the evaluation of a number of different factors. Insuch a case, the readiness of an appellate court to interfere with theevaluation of the judge will depend upon all the circumstances of the case.The greater the number of factors to be taken into account, the more reluctantan appellate court should be to interfere with the decision of the judge. As Isee it, in such circumstances an appellate court should only interfere withthat decision if satisfied that the judge erred in principle or was wrong inreaching the conclusion which he did.
It is important to note that rule 6.15 applies to authorise service “by amethod or at a place not otherwise permitted” by CPR Pt 6 . The startingpoint is thus that the defendant has not been served by a method or at such aplace otherwise so permitted. It therefore applies in cases (and only in cases)where none of the methods provided in rule 6.40(3) , including “any othermethod permitted by the law of the country in which it is to be served”(see rule 6.40(3)(c) ), has been successfully adopted. The only bar to theexercise of the discretion under rule 6.15(1) or (2) , if otherwise appropriate,is that, by rule 6.40(4) , nothing in a court order must authorise any personto do anything which is contrary to the law of the country where the claimform is to be served. So an order could not be made under rule 6.15(2) in thiscase if its effect would be contrary to the law of Lebanon. Although it washeld that delivery of the claim form was not permitted service under Lebaneselaw, it was not suggested or held that delivery of the documents was contraryto Lebanese law or that an order of an English court that such delivery wasgood service under English law was itself contrary to Lebanese law….
… 33. The question is whether the judge was entitled to hold that there was
a good reason to order that the delivery of the documents to Mr Azoury on22 October 2009 was to be treated as good service. Whether there was goodreason is essentially a matter of fact. I do not think that it is appropriate toadd a gloss to the test by saying that there will only be a good reason inexceptional circumstances. Under CPR 6.16 , the court can only dispense
with service of the claim form “in exceptional circumstances”. CPR6.15(1) and, by implication, also 6.15(2) require only a “good reason”. Itseems to me that in the future, under rule 6.15(2) , in a case not involving theHague Service Convention or a bilateral service treaty, the court shouldsimply ask whether, in all the circumstances, there is good reason to orderthat steps taken to bring the claim form to the attention of the defendant isgood service.
This is not a case in which the Hague Service Convention applies or inwhich there is any bilateral service convention or treaty between the UnitedKingdom and Lebanon. In the courts below, the case was argued throughouton that basis and, although there was a hint in the argument before this courtthat that might not be the case, it was accepted that the appeal should bedetermined on that basis. It follows that an alternative service order does notrun the risk of subverting the provisions of any such convention or treaty: cfthe reasoning of the Court of Appeal in Knauf UK GmbH v British GypsumLtd [2002] 1 WLR 907 , paras 46–59 and Cecil v Bayat [2011] 1 WLR 3086 ,paras 65–68, 113. In particular, Rix LJ suggested at para 113 of the lattercase that it may be that orders permitting alternative service are not unusualin the case of countries with which there are no bilateral treaties for serviceand where service can take very long periods of up to a year. I agree. I saynothing about the position where there is a relevant convention or treaty….
As stated above, in a case of this kind, the Court should simply ask itselfwhether, in all the circumstances of the particular case, there is a goodreason to make the order sought. It should not be necessary for the Court
to spend undue time analysing decisions of judges in previous cases whichhave depended upon their own facts.
… 36. The mere fact that the defendant learned of the existence and contentof the claim form cannot, without more, constitute a good reason to make anorder under rule 6.15(2) . On the other hand, the wording of the ruleshows that it is a critical factor. As the editors of Civil Procedure , 2013 ednote (vol 1, para 6.15.5), rule 6.15(2) was designed to remedy what werethought to be defects as matters stood before 1 October 2008. The Court ofAppeal had held in Elmes v Hygrade Food Products plc [2001] CP Rep71 that the court had no jurisdiction to order retrospectively that anerroneous method of service already adopted should be allowed to stand asservice by an alternative method permitted by the court. The editors of CivilProcedure , 2013 ed add that the particular significance of rule 6.15(2) isthat it may enable a claimant to escape the serious consequences that wouldnormally ensue where there has been mis-service and, not only has the periodfor service of the claim form fixed by CPR r 7.5 run, but also the relevantlimitation period has expired.
Service has a number of purposes but the most important is to my mindto ensure that the contents of the document served, here the claim form, iscommunicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] 1WLR 2016 , para 55 I said, in a not dissimilar context, that
“the whole purpose of service is to inform the defendant of the contents ofthe claim form and the nature of the claimant's case: see eg Barclays Bankof Swaziland Ltd v Hahn [1989] 1 WLR 506 , 509, per Lord Brightman, andthe definition of ‘service’ in the glossary to the CPR , which describes it as‘steps required to bring documents used in court proceedings to a person'sattention’ …”
I adhere to that view.
It is plain from his judgment [2011] EWHC 116 at [73] quoted abovethat the judge took account of a series of factors. He said that, mostimportantly, it was clear that the respondent, through his advisers was fullyapprised of the nature of the claim being brought. That was because, as thejudge had made clear at para 60, the respondent must have been fully awareof the contents of the claim form as a result of it and the other documentshaving been delivered to his lawyers on 22 October in Beirut andcommunicated to his London solicitors and to him. As Lewison J said at para4 of his judgment (quoted above, para 25):
“The purpose of service of proceedings, quite obviously, is to bringproceedings to the notice of a defendant. It is not about playing technicalgames. There is no doubt on the evidence that the defendant is fully aware ofthe proceedings which are sought to be brought against him, of the nature ofthe claims made against him and of the seriousness of the allegations.”
I agree
… 43. There are five respects in which I respectfully disagree with theconclusions reached by the Court of Appeal. The first is that referred to inparas 31 and 32 above, namely that the judge did not decide that there hadbeen valid service of the claim form under Lebanese law.
The second is related to the first. In paras 22 and 23 Longmore LJ saidthis:
[ CPR 6.37(5)(b)(i) ] authorises the court therefore to make an order
for alternative service pursuant to CPR 6.15(1) and also to make such anorder with retrospective effect pursuant to CPR 6.15(2) . Nevertheless theexercise of this power is liable to make what is already an exorbitant powerstill more exorbitant and I am persuaded by Mr Greatorex that it mustindeed be exercised cautiously and, as Stanley Burnton LJ said in Cecil vBayat [2011] 1 WLR 3086 , para 65, should be regarded as exceptional. Itwould, therefore, usually be inappropriate to validate retrospectively a
form of service which was not authorised by an order of an English judgewhen it was effected and was not good service by local law. CPR
permits three methods of service including service through the BritishConsular authorities and any additional method of service should usually
not be necessary. The fact that CPR 6.40(4)expressly states that nothing inany court order can authorise or require any person to do anything
contrary to the law of the country in which the document is to be served
does not mean that it can be appropriate to validate a form of service
which, while not itself contrary to the local law in the sense of being illegal,is nevertheless not valid by that law.
It follows that a claimant who wishes retrospective validation of a
method of service in a foreign country must (save perhaps where there areadequate safeguards which were not present in this case) show that themethod of service which is to be retrospectively validated was good serviceby the local law. Service on Mr Azoury would not be regarded as goodservice on Mr Baadarani as a matter of English law merely because MrAzoury was clothed with a general power of attorney. Can Mr Freedmanshow that the position is any different in Lebanese law?”
I do not agree that for the court to make an order under rule 6.15(2) is“to make what is already an exorbitant power still more exorbitant”. Irecognise of course that service out of the jurisdiction has traditionally beenregarded as the exercise of an exorbitant jurisdiction. That is a considerationwhich has been of importance in determining whether permission to serveout of the jurisdiction should be granted, although in this regard I agree withthe approach set out by Lord Sumption JSC in his judgment. In any event, inthis case, it is now accepted that it was proper to serve the claim form out ofthe jurisdiction. The rules as to the method of service set out above seem tome to have the legitimate sensibilities of other states in mind. It is for thatreason that CPR r 6.40(4) provides that nothing in CPR r 6.40(3) or in anycourt order authorises or requires any person to do anything which iscontrary to the law of the country of service. I have already expressed myview that the order recognising the delivery of the claim form as alternativeservice under English law is not contrary to Lebanese law. Moreover it wasnot in breach of any convention or treaty but merely recognised that the claimform (and other documents) had been brought to the attention of therespondent. I do not think, therefore, that in a case not involving the HagueService Convention or a bilateral service treaty, an order under rule6.15(2) must be regarded as “exceptional” or, indeed as suggested in para29 of Longmore LJ's judgment, that there must be a “very good reason” forit. As already stated, the CPR do not so provide. They merely require goodreason.
My third reason for disagreeing with the Court of Appeal concerns para23 of Longmore LJ's judgment, where he says that a claimant who wishes thecourt retrospectively to validate alternative service abroad must “(saveperhaps where there are adequate safeguards which were not present in thiscase)” show that the method used was good service under the local law. Asnoted above, that would render rule 6.15(1)(2) otiose. Without the words inbrackets, the proposition in para 23 would not be correct. It is not howeverclear to me what safeguards the court had in mind. In any event, for thereasons already stated, Longmore LJ was wrong in my view to suggest thata court needs a “very good reason” to make an order under rule6.15(2)where the steps taken did not constitute valid service under local law.
The fourth reason arises out of the Court of Appeal's reliance on the factthat the appellants did not issue the claim form until nearly the end of thelimitation period. Longmore LJ stated [2012] 1 CLC 66 , para 29:
“Since, therefore, Mr Azoury had no authority in fact to accept service andsince he did not, in any event, purport to do so, the delivery of the claim form
and associated documentation to him did not, in my view, constitute goodservice in Lebanese law. I do not, therefore, think that the judge should haveretrospectively validated that service as alternative service to that directedby Morgan J unless there was very good reason to do so. The only reason todo so was to avoid the claim becoming time-barred, which is not in itself agood reason (let alone an exceptional reason) for preserving a stale claim.Mr Freedman submits that both personal service and service throughdiplomatic channels had become impossible, but that impossibility (as towhich there was very little evidence) has only arisen as a result of the dilatoryway in which the claimants have pursued the English claim. They were askingfor trouble by only issuing their claim form shortly before the limitationexpired. If the claim form had been issued say four years earlier, and adiligent process server had been instructed, Mr Baadarani might well havebeen served at one of the three address identified by Mr Houssami in hiswitness statement and the order of Morgan J would have been complied with.Four years might even have been long enough for diplomatic channels to beeffective but it is not suggested that Mr Baadarani could only be served inthat manner. If it really was proving impossible to effect service over thatlong period, an application for alternative service could still have been madewell before the six year period had expired and no retroactive gymnasticswould have been necessary.”
As I read para 29, the delay prior to the issue of the claim form was asignificant part of the reasoning of the Court of Appeal, although, as Iunderstand it, it was not a point taken on behalf of the respondent. I wouldaccept the submission that (save perhaps in exceptional circumstances)events before the issue of the claim form are not relevant. The focus of theinquiry on an issue of this kind is not and (so far as I am aware) has neverbeen on events before the issue of the writ or claim form. The relevant focusis on the reason why the claim form cannot or could not be served within theperiod of its validity. The judge held that there was an issue to be tried on thequestion whether the appellants' claim was time-barred. In resolving theissues of service, the court had therefore to treat the claim form as issued intime.”
I think it is also relevant to remind myself of the decision in Barton v Wright Hassall,
to which I have already made reference. There the Supreme Court said:
What constitutes “good reason” for validating the non-compliant serviceof a claim form is essentially a matter of factual evaluation, which does notlend itself to over-analysis or copious citation of authority. This courtrecently considered the question in Abela v Baadarani [2013] 1 WLR 2043 .That case was very different from the present one. The defendant, who wasoutside the jurisdiction, had deliberately obstructed service by declining todisclose an address at which service could be effected in accordance with therules. But the judgment of Lord Clarke of Stone-cum-Ebony JSC, with whichthe rest of the court agreed, is authority for the following principles of moregeneral application:
The test is whether, “in all the circumstances, there is good reason toorder that steps taken to bring the claim form to the attention of the defendantis good service” (para 33).
Service has a number of purposes, but the most important is to ensurethat the contents of the document are brought to the attention of the personto be served (para 37). This is therefore a “critical factor”. However, “themere fact that the defendant learned of the existence and content of the claimform cannot, without more, constitute a good reason to make an orderunder rule 6.15(2) ” (para 36).
The question is whether there is good reason for the Court to validate themode of service used, not whether the claimant had good reason to choosethat mode.
Endorsing the view of the editors of Civil Procedure (2013), vol i, para6.15.5, Lord Clarke pointed out that the introduction of a powerretrospectively to validate the non-compliant service of a claim form was aresponse to the decision of the Court of Appeal in Elmes v Hygrade FoodProducts plc [2001] EWCA Civ 121; (2001) CP Rep 71 that no such powerexisted under the rules as they then stood. The object was to open up thepossibility that in appropriate cases a claimant may be enabled to escape theconsequences for limitation when a claim form expires without having beenvalidly served.
This is not a complete statement of the principles on which the powerunder CPR rule 6.15(2) will be exercised. The facts are too varied to permitsuch a thing, and attempts to codify this jurisdiction are liable to ossify it ina way that is probably undesirable. But so far as they go, I see no reason tomodify the view that this court took on any of these points in Abela vBaadarani . Nor have we been invited by the parties to do so. In thegenerality of cases, the main relevant factors are likely to be (i) whether theclaimant has taken reasonable steps to effect service in accordance with therules and (ii) whether the defendant or his solicitor was aware of the contentsof the claim form at the time when it expired, and, I would add, (iii) what ifany prejudice the defendant would suffer by the retrospective validation of anon-compliant service of the claim form, bearing in mind what he knew aboutits contents. None of these factors can be regarded as decisive in themselves.The weight to be attached to them will vary with all the circumstances.”
Mr Houseman KC sought to persuade me that this was not in fact the test that I should
apply in this case.
First, he referred me to a number of authorities predating the Abela case, in which
matters above and beyond pure delay were in issue.
The first was Cecil v Bayat [2011] 1 WLR 3086, a decision involving an application toextend time for service in circumstances in which a limitation defence might beprejudiced, and involving service in New York (the US being a party to the HagueConvention). He relied on that decision for the proposition that the mere fact that theproceedings would come to the attention of the Defendant more rapidly if served via an
alternative method was not enough to justify such an order. The passages which wereexpressly relied on were as follows:
The judge's reasons for his decision on this issue are to be found in para199 of his judgment, which I have set out above. In it, he referred to serviceas a means of bringing proceedings to the attention of the defendants.However, service is more than that. It is an exercise of the power of the court.In a case involving service out of the jurisdiction, it is an exercise ofsovereignty within a foreign state. It requires the defendant, if he is to disputethe claim, to file an acknowledgement of service and to participate inlitigation in what for him is a foreign state….
…65. In modern times, outside the context of the European Union, the mostimportant source of the consent of states to service of foreign process withintheir territory is to be found in the Hague Convention (in relation to the stateparties to it) and in bilateral conventions on this matter. Because service outof the jurisdiction without the consent of the state in which service is to beeffected is an interference with the sovereignty of that state, service on a partyto the Hague Convention by an alternative method under CPR r 6.15 shouldbe regarded as exceptional, to be permitted in special circumstances only.
It follows, in my judgment, that while the fact that proceedings served byan alternative method will come to the attention of a defendant more speedilythan proceedings served under the Hague Convention is a relevantconsideration when deciding whether to make an order under CPR r 6.15 , itis in general not a sufficient reason for an order for service by an alternativemethod.
Quite apart from authority, I would consider that in general the desire ofa claimant to avoid the delay inherent in service by the methods permittedby CPR r 6.40 , or that delay, cannot of itself justify an order for service byalternative means. Nor can reliance on the overriding objective. If they could,particularly in commercial cases, service in accordance with CPR r6.40 would be optional; indeed, service by alternative means would becomenormal. In fact this view is supported by authority: see the judgment of thecourt in Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR 907 , para47:
“It was argued by [the second defendant] before the judge that the HagueConvention and the Bilateral Convention were a ‘mandatory and exhaustivecode of the proper means of service on German domiciled defendants’, whichtherefore excluded alternative service in England. The judge did not acceptthat submission, pointing out that those Conventions were simply notconcerned with service within the English jurisdiction. [The seconddefendant] did not repeat that submission on its appeal. Nevertheless, itfollows in our judgment that to use CPR r 6.8 as a means for turning the flankof those Conventions, when it is common ground that they do not permitservice by a direct and speedy method such as post, is to subvert theConventions which govern the service rule as between claimants in Englandand defendants in Germany. It may be necessary to make exceptional ordersfor service by an alternative method where there is ‘good reason’: but a
consideration of what is common ground as to the primary method for serviceof English process in Germany suggests that a mere desire for speed isunlikely to amount to good reason, for else, since claimants nearly alwaysdesire speed, the alternative method would become the primary way.”
Service by alternative means may be justified by facts specific to thedefendant, as where there are grounds for believing that he has or will seekto avoid personal service where that is the only method permitted by theforeign law, or by facts relating to the proceedings, as where an injunctionhas been obtained without notice, or where an urgent application on noticefor injunctive relief is required to be made after the issue of proceedings. Inthe present case, the only reason for urgency in serving the defendants arosefrom the claimants' delay in seeking and obtaining their permission to serveout of the jurisdiction: a delay resulting in part from their decision not toproceed with their claim until they had obtained funding for the entireproceedings. Furthermore, their application for permission to serve out wasnot particularly complicated.
This does not mean that a claimant cannot bring proceedings to theattention of a defendant by e-mail, fax or other more speedy means thanservice pursuant to CPR r 6.40 . The claimants could have done so in thepresent case. But, as I have indicated, service is more than this. In my view,the judge confused this possibility with service itself.
It follows that in my judgment there was no good reason for an ordergranting permission to serve the defendants by alternative methods….
…112. I turn to the separate question of David Steel J's order for alternativeservice. I agree with what Stanley Burnton LJ says about that, although it isnot decisive in the light of the previous point about the invalidity of theextensions of time for service.
It may be that orders permitting alternative service are not unusual inthe case of countries with which there are no bilateral treaties for serviceand where service can take very long periods, of up to a year (cf MarconiCommunications International Ltd v PT Pan Indonesia Bank Ltd [2004] 1Lloyd's Rep 594 , paras 44–45, per David Steel J). In the present case, thatdid not apply to any of the defendants, and I would prefer to leave such casesout of account. The rule, CPR r 6.15(1) , expressly requires “good reason”,and it may be that some flexibility should be shown in dealing with suchcases, especially where litigation could be prejudiced by such lengthyperiods. However, in Knauf UK GmbH v British Gypsum Ltd [2002] 1 WLR907 this court observed that mere desire for speed was unlikely to amount togood reason. As it is, the second defendant was a US company, the first andfourth defendants could be served in the USA, all in accordance with theHague Convention, and the third defendant, a company incorporated inAfghanistan could, it seems, be served under Aghanistan law and thereforepursuant to CPR r 6.40 by registered post and courier to its registeredbusiness address. Therefore the claimants did not require more than abouttwo months for service. In such a case, I agree that some specialcircumstance is needed to amount to good reason: after all, any case of
service out earns the claimant an additional two months for service (thedifference between the standard initial period of four months in a case ofservice within the jurisdiction and six months in the case of a claim form forservice outside the jurisdiction).
It is plain, however, that the problem of permission to serve out hadbeen left until late in the day, even after two previous extensions, and theclaimants were unwilling to take the risk of being refused the length ofextension required to ensure service by the normal means. The excuse used,that of ensuring that the defendants were served wherever they happened tobe, did not need the sidestepping of the Hague Convention , for the reasonsexplained by Stanley Burnton LJ ”.
The next case relied on by D1 and D2 was Marconi v PT Pan Indonesia Bank [2004] 1Lloyd’s Rep 594. D1 and D2 relied upon paragraphs 44 and 45, in which the judge saidthis:
Here there is no question of the claimant seeking to steal a march onPanin Bank. Whilst it is pointed out in the evidence filed by Panin Bank thatpart of the elaborate procedure laid down for service of proceedings inIndonesia has a 14-day time limit, there is no challenge to the assertionemanating from Marconi that, overall, the process of service would take “atleast one year”. Given the contemplated length of proceedings in thatjurisdiction referred to earlier in this judgement, this assertion strikes me asentirely plausible. As I understood the thrust of the defendant’s submission,it was to the effect that good reason for alternative mode of service could notbe established absent it being shown that service out of the jurisdiction wasimpractical. This strikes me as an attempt to reintroduce the equivalentprovisions of the rules in force prior to the implementation of CPR. In myjudgment the discretion afforded by the new rules is much broader than that.
Whilst it cannot be said that service was impractical in Indonesia, itwould involve very extensive delay in a claim which was already stale.Furthermore the inference I draw, given the apparent lack of merit in thedefence, is that delay was the sole aim of the defendant rather than anygenuine desire to ensure the proprieties of service where met. It is notablethat Panin Bank had appointed Messrs. Thomas Cooper and Stibbard inSeptember, 2002 in response to service of Marconi’s petition out of thejurisdiction by courier post to their principal office some time in August.Albeit the petition was dismissed, it does not appear to be in issue thatThomas Cooper and Stibbard were still actively involved in the proceedingson the question of costs. In all these circumstances I regard the claimants ashaving established a sufficiently good reason to justify the alternative modeof service.”
Next, the Defendants relied on paragraphs 33 and 34 of the decision in JSC BTA Bank
v Ablyazov [2011] EWHC 2988 (Comm), in which Teare J said:
It is common ground that the court's jurisdiction to permit alternativeservice out of the jurisdiction stems from CPR r.6.15 . This was assumed byStanley Burnton LJ and Rix LJ in Cecil v Bayat whose view has been followed
by Tugenhadt J. in Bacon v Automatic Inc. & Others [2011] EWHC 1072(QB) . Thus the court may order alternative service where there is “goodreason” to do so.
Although the observations of both Stanley Burnton LJ and Rix LJ in Cecilv Bayat as to how this jurisdiction should be exercised are strictly obiterdicta they were made after hearing full argument and therefore are of verypersuasive authority. It is necessary to note the following observations inparticular. Stanley Burnton LJ said, at paragraph 66, that whilst the fact thatproceedings served by an alternative method will come to the attention of adefendant more speedily than proceedings served under the HagueConvention is a relevant consideration, it is in general not a sufficient reasonfor an order for service by an alternative method. He further said, atparagraph 67, that in general the desire of a claimant to avoid the delayinherent in service under the Hague Convention cannot of itself justify anorder for service by alternative means. Service by alternative means may bejustified by facts specific to the defendant, “as where there are grounds forbelieving that he has or will seek to avoid personal service where that is theonly method permitted by the foreign law” or by facts relating to theproceedings, “as where an injunction has been obtained without notice”; seeparagraph 68. Rix LJ agreed that the mere desire for speed was unlikely toamount to good reason. However, he left out of account those cases whereservice can take very long periods and observed that “it may be that someflexibility should be shown in dealing with such cases, especially wherelitigation could be prejudiced by such lengthy periods”; see paragraph 113.”
The next authority on which reliance was placed was BNP Paribas v Open JointStock Company [2012] 1 Lloyd’s Rep. 61, at paragraphs 136-138, where theCourt said this:
It is said by the second defendant that there was no specialcircumstance justifying an order for alternative service in the present case.One of the factors identified as such in Cecil v Bayat is the case of urgency.The second defendant points out that in making its application to the court,the claimant relied upon section 44(4) Arbitration Act 1996. That providesthat if the case is not one of urgency, the court can only act with thepermission of the arbitral tribunal. That is to be distinguished from the powerin section 44(3) which gives the court a general power to make orders for thepurpose of preserving evidence or assets if the case is one of urgency.
My conclusion in this respect is as follows. The claimant’s evidence insupport of its application made it clear that although, at that time, theclaimant did not envisage an urgent application for interlocutory relief, therewas nevertheless “some element of urgency” in the matter. In particular, itwas stated that “the relief sought is sufficiently urgent that to wait for serviceto be effected under the Hague Convention on the second defendant (whichcould take between three to six months) would likely defeat the purpose ofthis application, which in order to be effective, must be heard before theRussian proceedings are concluded. I understand [said the deponent] thatthere is English authority that allows for service of foreign process by analternative method, and I believe that service on the second defendant’s
lawyers would not prejudice the second defendant as its lawyers alreadyrepresent it in the Russian proceedings”.
At the time of the application to the court, the arbitration was underway.Two procedural orders had already been made before the application to thearbitrator which resulted in the order giving permission to bring the anti-suitproceedings. I do not consider that it is surprising that the claimant thoughtit right in those circumstances to seek permission from the arbitrator. Nor doI consider that the fact that his permission was sought requires a conclusionthat the matter was not sufficiently “urgent” to fall within the kind of specialcircumstance envisaged by the court in Cecil v Bayat. Hamblen J was thejudge at first instance in that case, and was well acquainted with the issues.I consider that he was right to make the order he did, and reject thedefendants’ contentions to the contrary.”
In a later decision in the Paribas case, Teare J said this:
Mr. Houseman submitted that there was good reason to make a
retrospective declaration of good service. His principal reasons were these:
The proceedings involve an arbitration claim form and injunctive, anti-suit, relief. Such proceedings were the “paradigm” case in which the courtshould deal with matters “robustly” and make an order under CPR 6.15(2) .In such a case the court would be expect to determine the arbitration claimswiftly and so it was appropriate to make such an order so as to avoid delayin bringing the Second Defendant before the court.
The Foreign Process Section had transmitted the documents for serviceunder the Hague Convention to Russia on 26 July 2011 but there has as yetbeen no response. Almost 9 months has elapsed. On 13 February 2012 theFPS advised that service might take one year or more. Such a long period ofdelay was inappropriate when disclosure was to take place in August 2012with an exchange of witness statements thereafter leading up to an expectedtrial involving the other defendants in December 2012. Delay in serving theSecond Defendant would prejudice that trial.
Article 15 of the Hague Convention envisages that a court may givejudgment if six months from transmission of the papers for service elapseswithout service. That period has already elapsed….
…17. In the present case the nature of the relief sought against the defendantsis an anti-suit injunction designed to protect an arbitration taking place inLondon between the Claimant and the First Defendant. In such a case thereis a particular need for the trial to be heard promptly. If service can only takeplace via the Hague Convention there is a risk, on the evidence now beforethe court, that it may not take place in sufficient time to enable the trialagainst all defendants to take place in December 2012. Disclosure has beenagreed, subject to questions of jurisdiction and service, to take place inAugust 2012. That is just over one year from the date when the papers weretransmitted by the FPS to Russia. Service may not take place until some timethereafter and so the projected early trial may be put at risk.
In principle I consider that such considerations are capable of amountingto “good reason” to make a retrospective declaration of good service. I donot consider that such an approach is inconsistent with the guidance of theCourt of Appeal in Cecil v Bayat . The considerations to which I havereferred are “facts relating to the proceedings” of a type recognised byStanley Burnton LJ in paragraph 68 of his judgment as justifying an orderunder CPR 6.15 . They are also considerations resulting from a long periodof delay in service which Rix LJ recognised might require flexibility wherelitigation could be prejudiced.”
Finally, reference was made to Avonwick v Castle Investment Fund [2015] EWHC 3832(Ch), although Mr Houseman made reference to this case simply because it had beenrelied on by C.
Overall, D1 and D2s’ submission was that in each of these prior cases, mere delay inservice had not been enough to justify an order for alternative service. There had alwaysbeen some other reason – whether it be the danger that the Defendant would take stepsto evade service, or the fact that relief was sought (eg injunctive relief) which made iturgent to get to trial. Mere delay without more was not enough.
However:
All of these cases, as Mr Houseman candidly accepted, predated the decision in
Abela.
All of these cases, as again Mr Houseman accepted, involved service in
countries with which there were service conventions.
In my judgment, it is clear from the decision of the Supreme Court in the Abela casethat the relevant test, both for CPR6.15(1) and (2) is that there should be a good reasonto depart from the method of service that would otherwise be required under the Rules,to allow alternative service. Although Mr Houseman argued valiantly that this caseshould be distinguished because it related to CPR 6.15(2) rather than 6.15(1), I do notaccept this submission. I do accept that considerations as to whether or not documentshave in fact come to the attention of the Defendants are more obviously relevant toretrospective applications under CPR 6.15(2), but I do not accept that a different test isto be applied under the two limbs of the rule. I consider that this conclusion is clearlysupported by paragraphs 23, 24 and 33 of the case, and is also the view taken by theeditors of the White Book at 6.15.3.
Accordingly, in my judgment, the question for me is whether there was a good reason
to authorise alternative service in August 2022.
The relevant material.
The second preliminary issue that I should deal with is whether the question of good
reason should be dealt with by reference to the material available in August 2022 or thematerial available now. In truth, as I indicated at the hearing, I think that this is a non-issue, since there is no change in the relevant material. Had it been relevant, I think thatthe correct approach would have been to look at the material put forward in August2022; but I express no concluded view on this.
Was or is the test here satisfied?
I turn to the most important issue under this head, namely the application of the test to
the facts.
D1 and D2 contended as follows:
The starting point is that a Defendant is entitled to expect that he or she will be
served in accordance with the provision laid down for service in that country.That is the default position under CPR 6.40. That rule may be displaced underCPR 6.15, but only where C can show a good reason for cutting through formalservice in the interests of justice.
The classic cases justifying such are inordinate delay, causing prejudice to C’slegal rights; where a coercive order has been granted, with the result that thereis a disparity between the contempt regime and final relief; and where there is alater joinder of a party which might lead to a fixed trial date being imperilled.
Here, C grounded her claim on the application for a freezing order, which failed.
At the hearing before Butcher J, three points were made, namely:
The need to avoid delay;
The progress of the claim against D3;
(c)
None of these grounds justified the making of the orders, and those orders
should now be set aside.
C had made no efforts to set in train normal processes and had delayed
in commencing proceedings;
The need to progress claims together could not justify alternative service
where the claims had only just been brought;
was not evidenced in any way.
The Claimant’s contentions.
C obtained permission to serve out via email, when there was no provision of Saudi or
Jordanian law which prohibited service by email. There was no dispute that the claim
forms came to the notice of D1 and D2. | ||
Whilst C accepted that the | ||
application for service by alternative means was based primarily on the grounds for thefreezing order, this order was not granted, and it logically followed that the basis forthe grant of the order for service out by alternative means must have been somethingelse.
In these circumstances, C submitted that:
the ‘most important’ purpose of service is to ‘ensure that the contents of thedocument served’ is ‘communicated to the defendant’: Abela per Lord Clarke at§37 citing Olafsson v Gissurarson(No 2) [2008] 1 WLR 2016 at §55. TheSupreme Court went on at §38 to approve the comments of Lewison J at firstinstance in that case, where he emphasised that:
‘The purpose of service of proceedings, quite obviously, is to bringproceedings to the notice of a defendant. It is not about playing technicalgames.’ (emphasis added)
the fact that a defendant has in fact ‘learned of the existence and content of theclaim form’ cannot, without more, constitute good reason for retrospectivevalidation under rule 6.15(2) but is a ‘critical factor’: Abela at §§36 & 38;
the question is whether there is a “good reason”, there does not need to be a
“very good reason” or “exceptional circumstances”: Abela at §§45-46.
save in ‘exceptional circumstances’, events ‘before the issue of the claim form
are not relevant’: Abela at §48;
rather, the focus is rather on why the claim form cannot or could not be servedwithin the period of its validity’: Abela (ibid). To that end, orders permittingalternative service may be ‘not unusual’ in the case of countries ‘where thereare no bilateral treaties for service and where service can take very long period,of up to a year’ per Rix LJ in Cecil v Bayat [2011] EWCA Civ 135 at §113(emphasis added); and
in cases of retrospective authorisation, the reasonableness of the steps taken byC, and the prejudice (if any) to D are also relevant: see R (ex parte Good LawProject) v Secretaryof State for Health and Social Care [2022] 1 WLR 2339per Carr LJ at §55.
Although each case falls to be determined by reference to whether good reason
exists or existed on its own facts, by way of brief illustration:
in the non-Hague Convention case of Marconi CommunicationsInternational Ltd v PT PanIndonesia Bank [2004] 1 Lloyd’s Rep 594(cited by Rix LJ in Cecil v Bayat at §113), the Court granted permissionunder CPR 6.15 where service by diplomatic processes would take atleast a year, where service would therefore involve a ‘very extensivedelay and where on the facts ‘delay was the sole aim of the defendantrather than any genuine desire to ensure the proprieties of service weremet’ (per David Steel J at §§44-45), which I have set out above; and
even in cases to which treaty provisions do apply, there comes a pointwhere delay in service through the relevant diplomatic process maysupply the “good reason”, in particular where it may prejudice thelitigation: see (i) Cecil v Bayat (above per Rix LJ at §113; (ii) JSC BTABank v Ablyazov [2011] EWHC 2988 per Teare J at §§39-41 (where theCourt considered, amongst other factors, delay of between nine monthsand two years, being a ‘long period of time’ (§39) which might ‘impede
the proper disposal’ of the proceedings); and (iii) Bill Kenwright Limitedv Flash Entertainment FZ LLC [2016] EWHC 1951 (QB) per Haddon-Cave J at §§47-55 (an eight month delay in service through bilateraltreaty arrangements with the UAE was an ‘inordinate’ delay in thecontext of that case; defendant was aware of the dispute; service by postwas not contrary to UAE law).
My conclusions.
Despite the ingenuity and complexity of the arguments put before me by the parties, I
consider the issues here to be of limited compass.
As I have noted already, I consider that the question is whether there was a goodreason for alternative service to be ordered. As I have also indicated, I think thatthis must be judged by the evidence available as at August 2022.
In my judgment, there was indeed good reason for an order for alternativeservice to be made, and I would make such an order were an application to bemade to me on the current facts. I reach this view for the following reasons.
As at August 2022, it was clear that service of the claim form by thenormal methods could not be achieved within the period of validity ofthe claim form. The evidence was that service through diplomatic meansin Saudi Arabia would take a year, and service in Jordan would also takea year.
Conversely, it was also clear that notice of the claims would be broughtto the attention of the Defendants more rapidly via email service, andthat the Defendants had no real interest in service by any other means. Ido not think that it is right that a Defendant has an entitlement to servicein accordance with that Defendant’s local law, as long as the servicewhich is effected is not contrary to that local law, as was the case here.
Notice of the proceedings was given to the Defendants most effectively
by service by alternative means.
Service had been validly effected on D3, with the result that it wasdesirable that the proceedings against all three Defendants continue inparallel and without delay.
The Defendants had no good or pragmatic reason for wishing service to
be via some other route.
I do not accept the submission that delay, on its own, cannot be a goodreason, in the absence of some other indication that the Defendant is, forexample, seeking to evade service. I consider that the rapid resolution ofproceedings may be a good reason to justify service by alternativemeans, since, in my view, that is in accord with the overriding objective.
I accordingly conclude that the order for alternative service was rightly made, and I
decline to set it aside.
I have specifically not based this decision on the allegation that there might have been
a refusal, | ||
to serve without delay. This assertion was a very serious one, and | ||
whilst I do not say it should not have been made, I have concluded that the materialrelied on is not sufficient to enable me to draw such serious inferences.
It follows from this part of my judgment that:
(1) Service of the proceedings on D3 was valid.
Service on D1 and D2 was also valid.
The application set down for February 2024 will therefore go ahead, in accordance with
the directions agreed between the parties following the hearing before me.
