The COVID-19 pandemic has affected the ability to effect service outside the jurisdiction, such that parties may need to consider applying for alternative service.
Although the Civil Procedure Rules (CPR) do not contain an express provision for alternative service outside the jurisdiction, the UK Supreme Court in Abela v Baadarani held that such an order can be made where there is a “good reason” to make it. However, Lord Clarke expressly exempted from his analysis cases under the Hague Service Convention or a bilateral treaty. The reasoning behind this exemption derives from the principle of international comity, which requires English courts to take into account and give weight to separate arrangements made between sovereign states (Salomon v Commissioners of Customs and Excise, at paragraph 143). There is nothing to suggest that the principle of international comity does not apply when courts are interpreting the CPR. As a result, the courts’ approach to such cases has been different and – rather inconveniently – has seemingly led to the creation of two different lines of authority.
The need for “exceptional” or “special” circumstances
In Cecil v Bayat, the Court of Appeal held that because service out of the jurisdiction without the consent of the state in which service is to be effected is an interference with the sovereignty of that state, service on a party to the Hague Service Convention by an alternative method under CPR 6.15 should be regarded as exceptional, to be permitted in special circumstances only.
In Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat A.S. and others, the Court of Appeal held that service outside the jurisdiction by an alternative method not permitted by a state (whether under the Hague Service Convention or a bilateral treaty) is only permissible in “exceptional circumstances”. Where alternative service is sought by a method permitted by the foreign state, the party applying for alternative service need only establish that there is a “good reason”. (In cases where service is governed by the Hague Convention or a bilateral treaty, the party making the application may need to obtain expert evidence from a local attorney.) The Court of Appeal held that the provision of negligent legal advice did not amount to “exceptional circumstances”, and was thus not minded to depart from the principle of international comity. The use of the word “exceptional” rather than “special” circumstances created the impression that two different tests were now co-existing alongside one another.
In Russian Commercial Bank (Cyprus) Ltd v Khoroshilov, the question arose of whether the test in Hague Convention cases is one of exceptionality, special circumstances, or simply “good reason”. The judge traced through some of the older authorities and concluded (at paragraph 97) that according to the Court of Appeal in Goldas, the test was one of “special circumstances”.
It is the writer’s view that the judge was wrong in her conclusion, because the Court of Appeal in Goldas referred mostly to “exceptional circumstances”. In any event, on a careful reading of the relevant authorities, it would seem that the use of the word “special” as opposed to “exceptional” (or vice versa) was not intended to create a divergence in meaning, but rather it was intended to set a very high threshold for those who seek to apply for alternative service outside the jurisdiction where the alternative method would not be permissible by the receiving state.
To what extent will special or exceptional circumstances justify departing from the principle of international comity?
Departure from the principle of international comity may be justified where the receiving State’s objections or restrictive approach to service become a bar to a legitimate claim. In Punjab National Bank (International) Ltd v Srinivasan and others the High Court remarked that India’s restrictive approach to service should be respected unless it provides a bar to a legitimate claim in the jurisdiction from being pursued. However, the court did not find for the applicant in that case; Chief Master Marsh concluded that the applicant had failed to make a very good case for service.
In Avonwick Holdings Ltd v Azitio Holdings Ltd the court held that the test of exceptional circumstances had been met as delay in effecting service through the Hague Service Convention would result in litigation prejudice (see also Evison Holdings Ltd v International Company Finvision Holdings LLC). Although delay will not in itself amount to exceptional circumstances, the court distinguished the case on its facts, mainly because the matter related to service within an existing set of proceedings, as opposed to a self-standing claim. Thus, the delay was one which could adversely affect a scheduled trial date.
Even where a delay could potentially amount to exceptional circumstances in a particular case, an applicant will in most cases still need to satisfy the court that they have taken all reasonable steps to serve a party outside the jurisdiction prior to applying for alternative service (see for example Abela at paragraph 48, and Khoroshilov at paragraphs 98 to 99). It will not be sufficient to simply argue that alternative service will be speedier and less expensive.
Are COVID-related delays “exceptional”?
It would appear that COVID-related delays are no more exceptional than any regular delay. A delay that has been caused or exacerbated by the pandemic will probably not, unless exceptional, result in a party obtaining permission to effect alternative service other than via the Hague Service Convention or a bilateral treaty. In GHS Global Hospitality Ltd v Beale, the master held that while the COVID-19 pandemic was an exceptional circumstance, its impact on service was not exceptional and that the most that could be said was that there was uncertainty (both parties had obtained expert evidence from local attorneys). Thus, an order for alternative service was not justified in the circumstances.
Conclusion
Courts are reluctant to depart from the principle of international comity unless there are exceptional circumstances. The most common reason cited by applicants is delay. Although delay is not in itself exceptional, it could in certain circumstances justify the making of an order for alternative service. This would usually be the case where the applicant can establish that the delay will have an adverse impact on a scheduled trial, or where the applicant would suffer litigation prejudice. Delays caused by the COVID-19 pandemic will not be considered exceptional. However, as most cases turn on their facts, this will depend on the specific circumstances of each case.
