Abela and others v Baadarani

Where no service convention or bilateral treaty applies, the court asks whether, in all the circumstances, there is a good reason retrospectively to validate alternative service under rule 6.15(2) of the Civil Procedure Rules 1998. The test requires neither exceptional circumstances nor a very good reason.

The method need not constitute valid service under foreign law. It must not be contrary to that law. Actual receipt of the claim form is insufficient by itself, but remains a critical factor because the principal purpose of service is communication. Other relevant matters include the difficulty, delay and expense of formal service, the defendant's conduct, and delivery within the claim form's period of validity. Pre-issue delay is generally irrelevant. The judge's evaluative conclusion attracts appropriate appellate respect.

The appellants brought claims for fraudulent misrepresentation, conspiracy, dishonest assistance, unconscionable bargain and undue influence arising from a share purchase. They obtained permission to serve the respondent in Lebanon. Before the claim form expired, it and the supporting documents were delivered to the respondent's Lebanese lawyer. That delivery was not valid service under Lebanese law, but the documents came to the respondent's attention.

The High Court declared under rules 6.15(2) and 6.37(5)(b) of the Civil Procedure Rules 1998 that the steps already taken constituted good service: [2011] EWHC 116 (Ch). The Court of Appeal set aside that declaration and held that the claim must be dismissed: [2011] EWCA Civ 1571. The central issue was whether the judge had been entitled to find a good reason for retrospectively validating service.

1. Appeal allowed unanimously. Lord Clarke, with whom Lord Neuberger, Lord Reed and Lord Carnwath agreed, held that the High Court judge was entitled to declare that delivery of the claim form and supporting documents to the respondent's Lebanese lawyer constituted good service. Lord Sumption also allowed the appeal for Lord Clarke's reasons. The High Court declaration was restored.

2. Rule 6.37(5)(b)(i) of the Civil Procedure Rules 1998, read with rule 6.15(2), empowers the court retrospectively to validate alternative service abroad. Alternatively, that power is implied into the rules governing service abroad. Events in the foreign country must have been capable of bringing the proceedings properly to the defendant's attention.

3. Where neither the Hague Service Convention nor a bilateral service treaty applies, the court should ask whether, in all the circumstances, there is a good reason for validation. The threshold is not exceptional circumstances or a very good reason. Lord Clarke disapproved that aspect of Cecil v Bayat [2011] EWCA Civ 135 which suggested an exceptional threshold, while approving its observation that alternative service orders may not be unusual where no treaty applies.

4. The method used need not be valid service under the law of the foreign country. Rule 6.15 applies precisely where an otherwise permitted method has not succeeded. Rule 6.40(4) prevents an order which authorises conduct contrary to foreign law. Delivery to the Lebanese lawyer was neither valid service under Lebanese law nor contrary to it, so it remained capable of validation under English law.

5. Knowledge of the claim form cannot alone establish good reason, but it is critical because the principal purpose of service is to communicate the document and the nature of the claim. Lord Clarke approved the approach in Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152. The documents had reached the respondent within the claim form's validity period. Diplomatic service had proved impracticable and would cause unacceptable delay and expense. The respondent's refusal to disclose his address, although not a breach of duty, was highly relevant.

6. Events before issue of the claim form are generally irrelevant, subject perhaps to exceptional circumstances. The proper focus is why service could not be achieved during the claim form's validity. Whether good reason exists is a value judgment, not an exercise of discretion. An appellate court should interfere only where the judge erred in principle or reached a wrong conclusion.

7. Lord Sumption added, with the agreement of Lord Neuberger, Lord Reed and Lord Carnwath, that service abroad should no longer be characterised through muscular presumptions associated with an exorbitant exercise of sovereignty. It ordinarily gives notice of proceedings and involves a pragmatic decision directed to the efficient conduct of litigation in an appropriate forum.

1. United Kingdom Supreme Court: The appeal was allowed unanimously and the High Court declaration that the steps already taken constituted good service was restored: [2013] UKSC 44.

2. Court of Appeal: The court set aside the High Court declaration and the orders extending the claim form's validity, held that the respondent had not been properly served, and concluded that the claim must be dismissed: [2011] EWCA Civ 1571.

3. High Court: Sir Edward Evans-Lombe declared under rules 6.15(2) and 6.37(5)(b) of the Civil Procedure Rules 1998 that delivery of the documents to the respondent's Lebanese lawyer amounted to good service: [2011] EWHC 116 (Ch).