BNP Paribas SA v OJSC "Russian Machines" & Ors

Under CPR 6.15(2), retrospective validation of service requires both steps which brought the claim form to the defendant’s attention and a good reason for making the order. The jurisdiction is exceptional and must be exercised cautiously. Mere awareness of proceedings, or a desire for speed, is insufficient. However, facts relating to the proceedings may constitute good reason, particularly where delay in service under the Hague Convention risks prejudicing an important or time-sensitive trial. The court must remain attentive to comity, but validating steps taken in England does not necessarily offend it.

The claimant sought an order under CPR 6.15(2) declaring that proceedings had been validly served on the second defendant. The claim form had been provided to solicitors who later acted for the second defendant in challenging the jurisdiction, but service on Russian lawyers had been held invalid. Service under the Hague Convention had remained outstanding for almost nine months, with an indication that it might take a year or more. The claimant argued that delay threatened the timely trial of anti-suit injunction and arbitration proceedings. The application raised whether the claim form had been brought to the defendant’s attention and whether the circumstances supplied the required good reason for retrospective validation.

1. The application under CPR 6.15(2) was granted. The claim form had been brought to the second defendant’s attention once its solicitors had been instructed to challenge the jurisdiction. The earlier provision of the claim form to those solicitors, before their instruction, did not itself establish that fact.

2. The court adopted the guidance in Cecil v Bayat [2011] 1 WLR 3086 and Abela v Baadarani [2011] EWCA Civ 1571. Retrospective validation is an exceptional power. The mere fact that the defendant has become aware of the claim, or that alternative service would be faster, does not amount to good reason.

3. Nevertheless, facts specific to the proceedings can constitute good reason. The claim concerned an anti-suit injunction protecting London arbitration proceedings. The prolonged and uncertain delay in Hague Convention service created a real risk that the proposed trial involving all defendants would be prejudiced. Those circumstances justified flexibility and supplied good reason for the order.

4. The court declined to rely on Article 15 of the Hague Convention because no provision of English law had been identified which authorised judgment merely because six months had elapsed after transmission of documents. Comity required caution, but validating steps taken in England did not validate conduct in Russia and was not shown to offend comity.

5. The court also extended time for the second defendant to challenge earlier ex parte alternative-service orders. Permission to appeal was granted because the application of CPR 6.15 to these facts raised a legitimate question for the Court of Appeal.

The judgment records that Blair J had previously rejected jurisdictional challenges and declared service on the second defendant’s Russian lawyers valid. That decision was under appeal to the Court of Appeal. The present application was determined at first instance before that appeal was heard.