The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service abroad, and then on finding the address to be incorrect, had served at an office of their lawyers, claiming good service, which was now denied. The claimants sought retrospective permission to do so.
Held: The claimants’ appeal succeeded, and the declaration that the service had been valid was restored. The steps they had taken to bring the claim form to the attention of the defendant namely the delivery of an untranslated copy to the offices of his Lebanese attorney, in circumstances where they had been unable to locate the defendant in Lebanon, should be treated as good service upon him under CPR.
(1) The test is whether, ‘in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant is good service’.
(2) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served (para 37). This is therefore a ‘critical factor’. However, ‘the mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)’.
(3) The question is whether there is good reason for the Court to validate the mode of service used, not whether the claimant had good reason to choose that mode.
(4) Endorsing the view of the editors of Civil Procedure (2013), vol i, para 6.15.5, Lord Clarke pointed out that the introduction of a power retrospectively to validate the non-compliant service of a claim form was a response to the decision of the Court of Appeal in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121; (2001) CP Rep 71 that no such power existed under the rules as they then stood. The object was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served.
Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 44, [2013] 4 All ER 119, [2013] ILPr 40, [2013] WLR(D) 251, [2013] 1 WLR 2043, UKSC 2012/0023
Bailii, WLRD, Bailii Summary, SC Summary, SC
Civil Procedure Rules 6.15(2)
England and Wales
Citing:
Cited – The Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
Cited – VTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Appeal from – Abela and Others v Baadarani CA 15-Dec-2011
The claimant alleged fraud against the defendant. The defendant now appealed against an order allowing service of the proceedings on him in Lebanon. . .
Cited – Bacon v Automattic Inc and Others QBD 6-May-2011
The court was asked whether a defendant domiciled in the United States of America be served by means of email with a claim form issued in England. . .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
At first instance – Abela and Others v Baadarani and Another ChD 28-Jan-2011
The claimant sought damages alleging inter alia fraud by the defendant in a company sale between the parties. The defendant now sought to have set aside the service on him in Lebanon, saying that The English court was not the forum coveniens. He . .
Cited – Karafarin Bank v Mansoury-Dara ComC 4-Jun-2009
The Defendant applied to stay the proceedings on the grounds that there were concurrent proceedings in Iran or, in the alternative, that the proceedings be stayed pending the conclusion of the concurrent proceedings in Iran.
Held: Teare J . .
Cited – Antec International Ltd v Biosafety USA Inc QBD 27-Jan-2006
The defendant applied to set aside an order giving leave to serve abroad in a contractual claim where the contract contained a non-exclusive jurisdiction clause.
Held: summarised the effect of such a clause, as the law emerged from extensive . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Knauf UK GmbH v British Gypsum Ltd and Another CA 24-Oct-2001
Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he . .
Cited – Olafsson v Gissurarson (No 2) CA 3-Mar-2008
The defendant appealed against an order that service of the claim form could be dispensed with.
Sir Anthony Clarke MR said: ‘the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the . .
Cited – Bayat Telephone Systems International Inc and Others v Lord Michael Cecil and Others CA 18-Feb-2011
Rix LJ suggested that it may be that orders permitting alternative service are not unusual in the case of countries with which there are no bilateral treaties for service and where service can take very long periods of up to a year. . .
Cited by:
Cited – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.511083