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.
