Mashate v Kaguta

For a claim against a head of state, service depends on the capacity in which the claim is brought. A claim in public capacity must be served through the Foreign and Commonwealth Office under the State Immunity Act. A claim in private capacity must comply with Civil Procedure Rules 1998 Part 6. Leaving the claim form at a High Commission is neither personal service nor service at the defendant’s usual or last-known residence. A default judgment entered without valid service must be set aside. Permission for a second appeal requires an important point of principle or another compelling reason. Fresh evidence must satisfy the applicable criteria and be proportionate or appropriate to admit.

Mr Mashate claimed a contractual sum from Mr Kaguta, alleging an agreement concerning compensation for assets seized after his newspaper was closed in Uganda. He issued proceedings and delivered the claim form at the Ugandan High Commission in London without seeking permission for service out of the jurisdiction. Default judgment followed, but Master Leslie set it aside because the claim form had not been served on Mr Kaguta.

Blair J extended time so that the appeal from Master Leslie’s order could be considered, set aside Master Eyre’s strike-out order, and dismissed that appeal. Mr Mashate then sought permission for a second appeal. The central issues were whether service at the High Commission was valid, whether new evidence about an alleged agreement concerning service should be admitted, and whether any compelling reason justified a second appeal.

1. Application refused. The proposed second appeal raised no important point of legal principle and disclosed no other compelling reason for the Court of Appeal to hear it.
2. Under CPR 13.2, a default judgment must be set aside if wrongly entered, including where the claim form was not served in accordance with the rules. Where a head of state is sued in a public capacity, section 12 of the State Immunity Act requires service through the Foreign and Commonwealth Office. If the claim is brought in a private capacity, service must comply with Part 6 of the Civil Procedure Rules 1998.
3. For a private-capacity claim, the relevant routes included personal service under CPR 6.43 or service at the correct address under CPR 6.5. The defendant’s usual or last-known residence was in Kampala. His presence at the High Commission did not make it his residence or a valid service address.
4. Permission for a second appeal under CPR Part 52.13 requires an important point of principle or another compelling reason. The latter ground required, at least, a reasonably good prospect of success. The service issue had no such prospect.
5. The additional witness evidence was not before the lower courts and was contested. Under CPR 52.11, the Ladd v Marshall criteria had at least to be satisfied, and admission had also to be proportionate or appropriate. The applicant gave insufficient reasons for not producing the material earlier. A failure by those advising him to organise it did not outweigh the prejudice of introducing it untested.
6. The suggested practical course was to re-serve the proceedings on solicitors instructed to accept service, if applicable, or to seek permission for service out of the jurisdiction. Order: application refused.

1. Court of Appeal (Civil Division): Refused the application for permission for a second appeal.
2. Queen’s Bench Division (Blair J): Extended time, set aside Master Eyre’s strike-out order, and dismissed the appeal from Master Leslie’s order setting aside the default judgment.
3. Master Leslie: Set aside the default judgment because service had not been effected on Mr Kaguta.
4. Master Eyre: Stayed the proceedings and later struck out the claim for non-compliance with an order.