Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD & Anor

An order for service by an alternative method is exceptional, but it does not require proof that every method permitted by the rules is impracticable. The court must first decide whether there is a good reason for authorising the alternative method and must then decide whether to exercise its discretion. Both stages are governed by the overriding objective, including fairness, proportionality, saving expense and expedition.

Good reason is assessed at the date of the application and on the particular facts. A party’s conduct may be highly relevant, especially where it creates avoidable procedural costs or delay. The order may be justified where it removes a genuine risk of further dispute about service, causes no material prejudice, and protects access to justice.

The claimant brought proceedings against a Malaysian company and an individual arising from business dealings and sought to serve proceedings outside the jurisdiction. After disputes arose about the validity and completeness of service, the claimant applied under CPR Part 6.8 for permission to serve by delivering the proceedings to the defendants’ solicitors.

The Master made the alternative service order. The individual later ceased to be a party, but the court heard argument concerning service on him because it might bear on the application concerning the company. The company applied to set aside the order, alleging that there had been no good reason for alternative service and that there had been material non-disclosure.

1. Application concerning Naza Motors dismissed. The Alternative Service Order was upheld.
2. Under CPR Part 6.8, the court must first determine whether there was a good reason to authorise service by a method not permitted by the rules. If so, it must separately decide whether to exercise its discretion. The assessment is made at the date of the application and depends on the particular facts.
3. The requirement of good reason must be interpreted consistently with the overriding objective in CPR Part 1.1. Relevant considerations include fairness, equal footing, proportionality, expense, expedition and the parties’ duty to assist the court. Impracticability of service by an authorised method is not a precondition.
4. There was good reason to make the order against Naza Motors. The claimant had faced prolonged and costly obstruction, the time for service was approaching expiry, and the defendants’ correspondence had introduced a further dispute about the proper address for service. Alternative service would remove uncertainty, save time and expense, and render immaterial any defects in the earlier documents. It caused no material prejudice to Naza Motors, which knew the claims and proceedings.
5. The discretion was also properly exercised. The order was necessary to promote the overriding objective and protect a financially vulnerable claimant litigating against a substantially wealthier opponent.
6. The order concerning the individual should not have been made. His initial absence did not justify an allegation that he was evading service, and he had promptly agreed to accept service when available. That conclusion did not affect the order against Naza Motors.
7. The court declined to decide fully whether CPR Part 1.1(3) could require a person to co-operate in effecting service, observing that the issue required sensitive application to foreign defendants and was unnecessary to the decision.
8. There was no relevant non-disclosure on the application for alternative service. Any deficiency was honest and unintentional, and setting aside the order would be disproportionate and confer an unmerited windfall.

The judgment records earlier first-instance procedural orders concerning permission for service outside the jurisdiction and alternative service. No appellate decision is stated.