Olafsson v Gissurarson

The court may dispense retrospectively with service of a claim form under rule 6.9 of the Civil Procedure Rules 1998, but only in a truly exceptional case. Relief may be justified where the claimant made a timely but technically ineffective attempt using an authorised method, the defendant received and understood the complete proceedings within time, and the claimant reasonably believed that service was valid.

The same principles apply where the English court has jurisdiction under the Lugano Convention. Dispensation does not improperly subvert the Convention merely because service abroad failed to satisfy a local formality. Article IV of the First Protocol does not invalidate the English court’s dispensing power where no separate service convention or bilateral agreement applies.

The claimant brought English libel proceedings concerning material allegedly published on the defendant’s website. The defendant was domiciled in Iceland. A British consul personally delivered the claim form and accompanying documents to him within the period for service. The defendant read and retained them, but service was invalid under Icelandic law because he did not sign a declaration accepting the documents.

Default judgment and an award of damages were subsequently set aside. Mackay J nevertheless dispensed with service under rule 6.9 of the Civil Procedure Rules 1998. The defendant appealed, contending that the judge lacked power to make that order or had wrongly exercised his discretion, particularly because the order affected a foreign defendant after the service and limitation periods had expired.

The central question was whether retrospective dispensation was permissible and appropriate under domestic procedural principles and the Lugano Convention.

1. Appeal dismissed. Mackay J was entitled to dispense with service under rule 6.9 of the Civil Procedure Rules 1998. Sir Anthony Clarke MR gave the judgment, with which Dyson and Jacob LJJ agreed.
2. Retrospective dispensation requires a truly exceptional case. This case fell within the second class described in Anderton v Clwyd County Council (No 2) [2002] EWCA Civ 933. The claimant had attempted service within time by a method permitted in principle, and the defendant received, read and understood every relevant document. The defect was the absence of the declaration required by Icelandic law. Requiring another delivery of the same documents would serve no useful purpose.
3. The judge was entitled to consider why service failed, the claimant’s reasonable reliance on the High Court’s foreign process machinery and the Foreign and Commonwealth Office, the defendant’s actual knowledge, and the absence of prejudice beyond loss of a limitation defence. Refusal of relief would have deprived the claimant of a trial on the merits. The exercise of discretion fell within the parameters established by the authorities and disclosed no error of principle.
4. The international context did not require a different result. Jurisdiction arose under article 5(3) of the Lugano Convention, rather than through service. Following Phillips v Symes (No 3) [2008] UKHL 1, rule 6.9 can validate or dispense with defective service retrospectively even where international jurisdictional consequences follow. The domestic principles governing exceptional dispensation therefore apply to defective service abroad in a Lugano Convention case.
5. The order did not circumvent or subvert the Lugano Convention. The defendant had received the complete process in sufficient time and deliberately chose not to participate. The case differed from an attempt to bypass prescribed service machinery merely to establish jurisdictional priority.
6. Article IV of the First Protocol did not require a different conclusion. Its first paragraph applies where a separate service convention or agreement exists between the contracting states. None applied between the United Kingdom and Iceland. The second paragraph was permissive and, on the court’s primary view, depended on the first. In any event, neither paragraph invalidated the English court’s power under rule 6.9.

1. Court of Appeal (Civil Division): The defendant’s appeal was dismissed. The order dispensing with service under rule 6.9 of the Civil Procedure Rules 1998 was upheld: [2008] EWCA Civ 152.
2. High Court, Queen’s Bench Division: On 20 December 2006 Mackay J held that the case was exceptional and dispensed with service. In an earlier judgment of 8 December 2006, he had allowed an appeal from Master Turner and set aside the default judgment and damages award because service had not complied with Icelandic law.
3. Senior Master: On 23 May 2006 Master Turner dismissed the defendant’s application to set aside the default judgment and purported to correct the error concerning service under rules 3.10 and/or 6.9.