Bitumex (HK) Company Ltd v IRPC Public Company Ltd

Retrospective validation of service outside the jurisdiction under CPR 6.15 is exceptional and requires special circumstances. Mere speed or convenience is ordinarily insufficient. However, facts relating to the proceedings may constitute good reason where the proceedings support an international arbitration chosen by the parties, the English court is assisting the arbitral process, and the prescribed foreign process would cause inordinate delay and expense. The arbitration context therefore satisfied the exceptional circumstances requirement.

The claimant sought appointment of an arbitrator under London arbitration clauses. It served the Arbitration Claim Form in Thailand by registered post and hand delivery after obtaining permission for service at the defendant’s registered office. The defendant challenged jurisdiction, contending that the methods used were invalid under Thai law.

The court assumed, without deciding, that service was invalid. Service through the Thai judicial authorities under CPR 6.42 was expected to take about 12 months. The central issue was whether the arbitration context and resulting delay provided good reason under CPR 6.15 to validate retrospectively the steps already taken.

1. Retrospective service. CPR 6.15 permits an order validating steps already taken where there is good reason to authorise service by an alternative method or at an alternative place. Such relief is exceptional. The fact that an alternative method is quicker than the method prescribed by CPR 6.40 is ordinarily insufficient.
2. Arbitration as an exceptional circumstance. This application concerned assistance to an international arbitration in London, which the parties had selected contractually. The Arbitration Act 1996 committed the parties to fair resolution by an impartial tribunal without unnecessary delay or expense. The defendant’s refusal to co-operate in appointing an arbitrator, together with the probable year-long delay under CPR 6.42, made the arbitration context a crucial fact relating to the proceedings.
3. Authorities. Bayat Telephone Systems v Cecil and Abela v Baadarani required caution and exceptional circumstances, but did not exclude circumstances arising from the nature of the proceedings. The court rejected the submission that arbitration claims occupy no special category for this purpose.
4. Order. The claimant’s application succeeded in substance. Retrospective service was ordered under CPR 6.15, subject to conditions. Fuller particulars of the claim and consequential costs directions were to be considered at the resumed hearing.