REUTERS | Michaela Rehle

A step into the unknown? Rescuing service out of the jurisdiction

Service out of the jurisdiction is a step many parties have to take. Has getting it right (or getting out of getting service wrong) become easier? A decision earlier this year, Absolute Living Developments Ltd v DS7 Ltd and others, suggests some hope exists, but only for those who have done their best to get things right.

Service out of the jurisdiction is governed, in English law, by the CPR. However, as the CPR themselves contemplate compliance with the rules of the jurisdiction in which service is to be effected, the scope for problems is clear. In a recent case, a potential clash was identified and a solution to avoid them found.

Absolute Living Developments Ltd v DS7 Ltd and others

The claimant (a company in liquidation) had brought proceedings against multiple defendants and had sought to add Ms Camilleri, a British citizen (who was to become the 13th defendant). Ms Camilleri being resident in Switzerland, an order was sought and obtained to serve proceedings (claim form, particulars of claim and other documents) on her outside the jurisdiction. The relevant procedure is set out in CPR 6.43, under which, pursuant to CPR 6.43(2), the claimant had to file various documents, including any translation required under CPR 6.45.

The problem

The claimant sought to serve Ms Camilleri in accordance with the route for service specified in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Convention). However, the facts identified a divergence between the CPR and the Hague Convention. Article 5 of the Hague Convention provides that:

“The [Authority effecting service] may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”

CPR 6.45(4)(b) provides a carve-out from such a requirement:

“(4) A party is not required to file a translation of a claim form or other document filed under rule 6.43 (service through foreign governments, judicial authorities etc.) where the claim form or other document is to be served… (b) on a British citizen… unless a Civil Procedure Convention or Treaty requires a translation.”

As the Hague Convention does not in terms require a translation (as opposed to permitting a requirement to be imposed), the Convention and CPR apparently differ. The claimant’s legal team had included translations in French of some, but not all, of the documentation. In due course, the relevant authority for effecting service in Switzerland, the Swiss Cantonal Tribunal, informed Her Majesty’s Courts and Tribunals Service that service in Switzerland had been unsuccessful: not all of the documents had been translated and Ms Camilleri had refused service on that basis.

The claimant sought an order in the English courts to dispense with service of the claim form under CPR 6.16 and of other documentation in the proceedings under CPR 6.28.

The court’s solution

One might have expected the court to seek to decide whether or not service had been validly made. However, the application before the court was to dispense with service and although Marcus Smith J appeared to be inclined to think that there had been regular service (for at least the “essential documents” in the claim had been translated and served), he instead chose to decide the issue by way of an order dispensing with service altogether under CPR 6.16 and CPR 6.28.

In doing so, the court considered and applied the Court of Appeal’s decision in Olafsson v Gissurarson. In that case, the claimant (and respondent in the Court of Appeal) had issued defamation proceedings, alleging that the defendant had published defamatory material about him on a website in England. Both parties were Icelandic and the court had been asked to serve the proceedings on the defendant in Iceland through the appropriate channels. The documentation was given to the defendant in Iceland but was not properly served in accordance with Icelandic law because he had not been asked to (and did not) sign a declaration confirming receipt. In due course, the defendant did not acknowledge service of the claim form and the claimant obtained judgment in default on the basis that the claim form had been properly served. The defendant then applied to set aside the judgment: in the meantime, the time for service had passed and, in the absence of an order dispensing with service, the claimant’s claim would be time-barred. The Court of Appeal, upholding a decision below dispensing with service, held that the case was truly exceptional. The claimant had been entitled to serve the proceedings out of the jurisdiction in Iceland under CPR 6.19(1) because Iceland was a party to the Lugano Convention 1988 and the claimant had taken appropriate steps to have the claim form served in Iceland. A certificate had been provided by the British embassy in Reykjavik, stating that the relevant documents had been served. In the circumstances, it was understandable that the claimant believed that the claim form had been served in accordance with Icelandic law, even though it had not. The claimant had made an ineffective attempt in time to serve a claim form by a method allowed by the rules and the defendant had in fact received the claim form in the permitted period.

The court’s key grounds for decision

In Absolute Living, Marcus Smith J placed great stress on the following factors as supporting making an order dispensing retrospectively with service in an exceptional case. First, the defendant did not dispute that she (or her legal advisors) had in fact received and had her attention drawn to the claim form, within the period for service and by a permitted method of service under the order obtained by the claimant. If service had not in fact been properly carried out, this was through no fault of the claimant and there was no prejudice to the defendant. Second, in so far as the Swiss courts did not certify service (by contrast at least with the existence of a certificate from the British embassy in Olafsson v Gissurarson), the importance of affording respect to the process of foreign courts in the jurisdiction where service took place (the principle of “comity”) was not determinative: the courts of England and Wales have primary responsibility to ensure that service has effectively been achieved, and have discretion to dispense with service where the purposes of informing the defendant of the claim form and nature of the case made have been achieved. In conclusion:

“It is the English court’s primary responsibility to ensure that service has been achieved… [A]lthough there may be a formal argument… that, technically speaking, service has not been achieved, as a matter of fact Ms Camilleri has had notice of the proceedings against her brought to her attention. The technical objections that she had deployed, even if well-founded, should not be allowed to prevail.”

My thoughts

In cases outside the scope of the Hague Convention, the English courts have already indicated that the rules for service should be interpreted with the focus being on ensuring that proceedings are brought to a proposed defendant’s attention. Some years ago, the Supreme Court in Abela v Baadarani held (reversing the Court of Appeal) that a first instance judge had been entitled to decide that CPR 6.15(2) entitles the court to order that steps taken to bring the claim form to a defendant’s attention by an alternative method of service constitute good service where there is “good reason” to do so, the most important purpose of service being to ensure that the contents of the document served are communicated to the defendant. In the same decision, all members of the Supreme Court emphasised that the courts should not rely upon any presumptions against permitting service out of the jurisdiction: litigation between residents of different states is “a routine incident of modern commercial life”.

Where Absolute Living marks a potential change is the willingness to dispense with service in a case in which a claimant has done all it can to effect service, but where it is made clear by the authority in the jurisdiction charged with effecting service that, in its view, service was not carried out. The scope for confrontation in that scenario is clearly higher. Post-Brexit, one wonders where that might lead.

In any event, Absolute Living provides only a limited escape route. First, the claimant must have done everything it can to get service right. Second, the defendant (in this case) had become aware of the claim and the documentation on which it relied. Failing to comply with the rules as best it could would have left the claimant in a different position. The courts will only help those who do everything to help themselves.

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