Olafsson v Gissurarson

Where proceedings are served abroad, the court must consider the law of the country of service and the applicable procedural rules. CPR 3.10 cannot retrospectively validate service which was ineffective because a required formality was omitted, even where the defendant actually received the documents. The rule cannot create a fictional service or retrospectively supply a default in acknowledging service. Where default judgment was wrongly entered because the requirements for default judgment were not satisfied, CPR 13.2 requires the judgment to be set aside. The distinction between an incomplete attempt to use a permitted method of service and service by a method prohibited by foreign law does not permit retrospective validation under CPR 3.10.

The defendant, an Icelandic resident, appealed against an order of Master Turner dated 23 May 2006. The Master had refused to set aside a default judgment entered in a defamation claim and had alternatively corrected the service error under CPR 3.10 and CPR 6.9.

The claim form and other documents had been handed to the defendant in Iceland by a British consular official. Under article 83 of the Icelandic Civil Procedure Act 91/1991, the relevant method required the defendant to sign a declaration acknowledging receipt. He received and read the documents but did not sign the declaration. The central issue was whether CPR 3.10 could retrospectively cure that defect and preserve the default judgment.

1. Appeal allowed. The Master had been entitled to reconsider the authorities available to him, but the Court of Appeal’s subsequent decision in Phillips and another v Nussberger and another [2006] EWCA Civ 654 materially affected the issue.
2. The question whether service abroad was effective depended on CPR 6.24, the law of the country of service and any applicable international agreement. The relevant Icelandic provisions constituted a complete and exclusive code. The attempted service did not satisfy the required formality because the defendant had not signed the prescribed declaration.
3. CPR 3.10 could not be used retrospectively to validate the defective service. The court distinguished between a case where documents had never been served and the present case, where they had been physically delivered, but held that supplying the missing signature would nevertheless require an impermissible fiction. The reasoning in Shiblaq v Sadikoglu [2004] EWHC 1889 (Comm), together with the persuasive reasoning in Phillips and another v Nussberger and another, supported that conclusion.
4. The consequence was that the default judgment had been wrongly entered. The mandatory language of CPR 13.2 required it to be set aside. It was unnecessary to decide whether the Master’s discretionary exercise would independently have been appealably wrong, or to determine the respondent’s proposed application under CPR 6.9.
5. The proposed fresh expert evidence was unnecessary. Had it been necessary to decide the application, the evidence would probably have been rejected because it could have been obtained earlier with reasonable diligence and largely consisted of comment.

• High Court (Queen’s Bench Division): appeal from an order of Master Turner dated 23 May 2006. The appeal was allowed and the Master’s refusal to set aside the default judgment was overturned.