Abela and others v Baadarani

The court held that CPR 6.15(2) permits retrospective validation of alternative methods of service out of the jurisdiction where, in all the circumstances, there is a "good reason" to do so; the court should focus on whether the steps already taken brought the proceedings to the defendant's attention, taking into account factors such as impracticability of prescribed methods, the defendant's conduct, and whether the documents were delivered within the period of validity of the claim form.

The appellants sued for alleged fraud and issued a claim form to be served out of the jurisdiction. After difficulties effecting service in Lebanon, a copy of the claim form and documents was delivered to the respondent’s Lebanese lawyer during the initial six-month validity period. The High Court declared, under CPR 6.15(2) and/or 6.37(5)(b), that those steps amounted to good service. The Court of Appeal set that declaration aside. The Supreme Court was asked to decide whether the judge was entitled to validate retrospectively the steps taken on 22 October 2009 as good service under CPR Part 6 and, more generally, the proper approach to the exercise of the power under rule 6.15(2).

Disposition: The appeal was allowed and the declaration of the High Court judge was restored.

(1) The Court accepted that rule 6.15(2) can be used retrospectively in service-out cases to validate steps already taken to bring proceedings to a defendant's attention, and that this power is to be read alongside rule 6.37(5)(b)(i) and rule 6.40. The existence of such a power does not require the prior or contemporaneous conformity of the method to local law for the court to exercise it.

(2) The statutory question under rule 6.15(2) is whether there is a "good reason" to treat steps already taken as constituting good service. The inquiry is fact-sensitive and asks whether, in all the circumstances, there is a good reason to make the retrospective order. The standard is not equivalent to the "exceptional" threshold in rule 6.16, and the court should not import an extra-statutory requirement that the claimant demonstrate that the method was valid under local law.

(3) Relevant factors in assessing "good reason" include whether the steps taken actually brought the claim form to the defendant's attention, whether prescribed methods (for example service through diplomatic channels or personal service at an identified address) have proved impracticable or likely to cause undue delay, the defendant's conduct (including refusal to disclose an address or to co-operate with service), the fact that the documents were delivered within the claim form's period of validity, and the overall fairness of validating the steps in the circumstances.

(4) The judge had taken account of the principal and appropriate factors: delivery of the documents to the defendant's Lebanese lawyer within the six-month period; the impracticability and delay entailed by diplomatic channels; evidence that the respondent, through advisers, was fully apprised of the claim; and the respondent's unwillingness to provide an address. Those findings were open on the evidence and the judge did not err in principle in concluding there was a good reason to validate the steps as good service.

(5) The Supreme Court rejected the Court of Appeal's approach that a claimant seeking retrospective validation must as a rule show the method was valid under local law and that retrospective validation should be treated as exceptional. The court emphasised a pragmatic, fact-sensitive approach in cases where no treaty applies.

Order: The Court allowed the appeal, restored the declaration of the High Court judge that the steps of 22 October 2009 amounted to good service, and accordingly the Court of Appeal’s order setting aside that declaration was reversed.

• Supreme Court: [2013] UKSC 44 – appeal allowed, declaration restored.
• Court of Appeal: [2011] EWCA Civ 1571 – set aside the High Court judge's declaration that steps taken on 22 October 2009 amounted to good service.
• High Court (Chancery Division): [2011] EWHC 116 (Ch) – judge declared that the steps taken on 22 October 2009 amounted to good service pursuant to CPR 6.15(2) and/or 6.37(5)(b).