Shiblaq v Sadikoglu

For service of English proceedings abroad, the method used must be permitted by the law of the state addressed and, where applicable, by the governing service convention. Article 15 of the Hague Convention sets minimum protection for default judgment; it does not replace the Convention’s permitted methods of service with the domestic method used for local proceedings. Procedural powers to remedy error or dispense with service cannot ordinarily be used retrospectively to circumvent an international service convention, impose a duty to acknowledge service, or validate a default judgment founded on ineffective service.

The claimant obtained judgment in default after attempting to serve the defendant in Turkey through a notary public. The defendant applied to set aside the judgment. The court considered whether the method was valid under Turkish law, whether it was available under Articles 10 and 15 of the Hague Convention, and whether any defect could be cured under CPR 3.10 or CPR 6.9.

The central issue was whether service valid for Turkish domestic proceedings could support a default judgment in English proceedings.

1. The method of service used in Turkey was not permissible for foreign proceedings. Although the preponderance of expert opinion established that a notary public could directly serve domestic Turkish proceedings, Turkey had objected to the relevant Article 10 methods of the Hague Convention. That objection strongly indicated that direct service of foreign proceedings by those methods was impermissible.
2. Article 15 of the Hague Convention does not prescribe an alternative method of service. It establishes minimum conditions which a method of service under the Convention must satisfy before a default judgment may be given. It cannot nullify Turkey’s objection to Article 10 or treat service valid for domestic proceedings as valid service of foreign proceedings.
3. The service did not comply with CPR 6.24(a), and was not a method designated by CPR 6.25(1). The default judgment therefore had to be set aside under CPR 13.2.
4. CPR 3.10 could not be used retrospectively to create a duty to acknowledge service which had never arisen, or to justify judgment in default. The Goldean Mariner concerned materially wider predecessor wording and did not govern CPR 3.10. The reasoning in Elmes v Hygrade Food Products plc supported that conclusion.
5. CPR 6.9 could operate retrospectively only in exceptional circumstances. It should not ordinarily be used to substitute a method of service, or cure defective service, where that would be inconsistent with a binding service convention. International comity and the Convention’s formal requirements could not be circumvented by a fictional dispensing order. Even if CPR 6.9 applied, it could not retrospectively impose a duty to acknowledge service.
6. The defendant’s application succeeded. The claimant’s applications under CPR 3.10 and CPR 6.9 were refused. The default judgment was set aside as of right under CPR 13.2, leaving the claimant to serve by a Hague Convention method to which Turkey had not objected.