In this blog post, I consider the recent judgment by the High Court in Sloutsker v Romanova, which clarifies:
- The duty of disclosure within the context of an application for permission to serve out of the jurisdiction.
- The circumstances in which the English jurisdiction might be considered an appropriate forum for litigation.
- What it takes to correctly serve proceedings on parties domiciled in Russia, pursuant to the Hague Convention.
Context
The claimant was a Russian citizen, businessman and former Senator of the Russian Federation, who now resides in Israel, where he founded the Israeli Jewish Congress. He issued libel proceedings against Moscow-based Ms Romanova for allegations she made in a blog post and a radio interview. Ms Romanova had alleged that Mr Sloutsker had sought to have her husband, Alexei Kozlov, the subject of a contract killing.
The claimant had been granted permission to serve outside of the jurisdiction by Master Yoxall. Following several attempts at service in Moscow, Ms Romanova applied for an order that included the setting aside of the grant of permission and/or a declaration that the claim form and particulars of claim had not been validly served. Mr Sloutsker cross-applied for a declaration that valid service had been effected in accordance with Russian law or, should the court hold otherwise, retrospective validation and/or permission to re-serve.
Analysis
When seeking to serve proceedings outside the jurisdiction, a party requires permission of the court pursuant to CPR 6.36. They will only be granted permission where one of the various jurisdictional gateways is satisfied, as identified in PD 6B.3.1 (for a review of the changes to PD 6B.3.1 due to come into effect on 1 October 2015, see Martha Castaneda Wilcox’s earlier blog post). A court will not grant permission unless it is satisfied that England and Wales is the proper place in which to bring the claim.
Following purported service, a party may seek to challenge the grant of permission or, alternatively, claim that service has not been properly effected in accordance with the law of the state in which the defendant is domiciled. One of the most well-known civil procedure conventions (permitted by CPR 6.40(3)(b)) is the Hague Convention, which came into effect in 1969. It requires that each contracting state designate a Central Authority to receive and execute requests for service from other contracting states.
A number of interesting points arose from the application of the above rules in Sloutsker. I seek to unpack some of them in this blog post, from matters of wider to matters of narrower application (much like a matryoshka doll).
Disclosure
The materiality of a non-disclosure when making an application for permission to serve outside the jurisdiction should not be underestimated. Legal representatives and their clients should not be eager to seek to distinguish between the level of full and frank disclosure required in a CPR 6.36 application and any other application where the defendant is not in attendance, such as a freezing injunction. Erring on the side of caution is often a virtue. Warby J was keen to stress in Sloutsker that, as a rule, the existence and status of a claim or complaint made in another jurisdiction is likely to be material when making such an application.
In Mr Sloutsker’s case, he had submitted a criminal complaint to the office of the Prosecutor General of Russia and the Russian Ministry of Internal Affairs, making allegations of libel and false denunciation under the criminal code. Fortunately for Mr Sloutsker, the court determined that, although material, the fact of the criminal complaint would not have caused the master to reach a different conclusion on the application for permission to serve out. This approach would appear to be consistent with the position expressed by Waller J in ABCI v Banque Franco-Tunisienne that disclosure should be made of any matter which, if the other party were represented, that party would wish the court to be aware of.
Appropriate forum?
Once a gateway threshold has been breached, the court has to be satisfied that England and Wales is the appropriate jurisdiction in which to bring the claim. Of course, this assessment will be fact-sensitive and dependent upon the cause of action being deployed by the claimant. The question for the court in this case was whether there had been “a real and substantial tort within the jurisdiction”.
The important points of practice here are to:
- Focus on the significance of the harm suffered within the jurisdiction.
- Not underestimate consideration of the capacity of the foreign jurisdiction to provide the redress sought.
In Mr Sloutsker’s case, he was able to identify significant swathes of UK-resident Russians and Russian-speakers who would have read the blog and the interview extracts with knowledge of him as a prominent Russian businessman and former politician.
While English courts are not primarily focused on providing redress where none can be obtained abroad (there has to be real and substantial harm within this jurisdiction), the courts will consider the counter-factual if it sheds light on whether England and Wales is the appropriate forum. Mr Sloutsker argued during the permission hearing that if he were to pursue his claim in Russia, the outcome would not vindicate his reputation for the same reason that Ms Romanova made the initial allegation that he was favoured by the Russian Government: the public would not consider the legal process to have been independent and untarnished. Even Ms Romanova appeared to concede that the Russian judicial system was not credible in the eyes of the Russian public, though the great anomaly remains that Mr Sloutsker appeared to consider the Russian system credible enough to lodge a criminal complaint.
What constitutes valid service in Russia?
When seeking service of documents in Russia, there are two important points to note:
- The Russian Federation took objection to the permission in Article 10 of the Hague Convention for the sending of documents by post directly to persons abroad. As a consequence, service by registered post is not valid service pursuant to CPR 6.40.
- Personal service by handing documents to the defendant cannot constitute valid service according to Russian law.
Instead, there is a three-fold process to service of proceedings in the Russian Federation:
- A court is assigned to execute the request for service from a foreign court (Serving Court).
- The Serving Court, having received that request from the Ministry of Justice, schedules a date, time and place for a hearing (Service Hearing).
- The Serving Court then summons the person to whom the judicial documents are addressed (Service Recipient). The summons will be sent out to the Service Recipient by registered mail or by other methods, such as telegram.
The Service Recipient is deemed notified of the date and time of the Service Hearing whether or not they accept the summons, as long as it is delivered and received. If they do not appear at the Service Hearing, having been duly notified, the Serving Court is not required to take any further steps to notify and can proceed.
What if the Service Recipient receives the document but refuses or fails to attend, as in this case? Can they simply evade service of the proceedings? Clearly not. In that scenario, the Serving Court terminates the matter, returning the set of documents to the designated Central Authority, providing the reasons why the documents were not received by the Service Recipient.
Here, a degree of confusion arises. Warby J correctly acknowledged that in this case, Judge Podmarkova (incorrectly, it seems) certified that Ms Romanova had not been served. However, he did not fully acknowledge that the expert evidence stated that a Serving Court would respond to the Central Authority “indicating the reason why the documents were not served on the Service Recipient” (my emphasis). The language used appears to suggest that the originating process is served if notice of the hearing is received, but if no one turns up at the hearing, the documents will be sent back to the Central Authority with an indication that they have not been served. This appears not to take the matter forward and somewhat muddies the otherwise clear waters.
Despite this confusion, Warby J relied on the decision of Leggatt J in Vis Trading Co Ltd v Nazarov, in which the Russian Federal Commercial Court stated that valid service takes place by virtue simply of the summons to court. For the time being, it seems that this clear statement of principle can be relied on. Ultimately, Ms Romanova did not appear to dispute that receipt of a summons was itself good service. She disputed that she had been summoned at all, but this submission did not stand up to scrutiny on the facts.
Conclusion
The courts have now considered service on Russian defendants on a number of occasions. It does seem, however, that the old Russian saying is right: “pavtorenia – mat oochenia!” (repetition is the mother of learning).
