Protec International Ltd v Stout

Where service out of the jurisdiction engages the Hague Service Convention, an order validating alternative service under CPR 6.15 requires special circumstances. The general “good reason” approach in Abela v Baadarani is not sufficient by itself because that decision expressly left treaty cases open. Active evasion of personal service, combined with the defendant’s knowledge of the claim and substantial efforts to bring the proceedings to his attention, may constitute the necessary special circumstances. The court may validate steps already taken even though local service requirements were not complied with. An extension under CPR 7.6(3) additionally requires satisfaction of all three conditions in that rule, including that the claimant took all reasonable steps to serve in time.

The claimant brought proceedings concerning the alleged diversion of trademarks from it to the third defendant. The second defendant was resident in Michigan, United States, and an order had been made for service out of the jurisdiction. A process server attended the defendant’s home, believed he was present, announced the purpose of the visit and left the proceedings at the door. The defendant was not in fact present, and the steps did not constitute personal service under the Michigan Court Rules.

The defendant applied for a declaration that service was invalid. The claimant sought retrospective validation under CPR 6.15(2), alternatively an extension of time under CPR 7.6(3). The central issues were whether the Hague Convention required special circumstances for alternative service and whether the evidence established those circumstances.

1. Alternative service. The application under CPR 6.15(2) was granted. In a case involving a relevant service convention, the court should proceed on the basis that alternative service is permitted only in special circumstances. The “good reason” approach stated in Abela v Baadarani did not govern because the Supreme Court had expressly said nothing about cases involving a convention or treaty.
2. Relevant circumstances. The proceedings had come to the defendant’s attention within the six-month validity period. The claimant had made significant efforts over a reasonable period to effect service. There was no limitation defence, England was the appropriate jurisdiction, and requiring fresh service out of the jurisdiction could cause further delay.
3. Evasion of service. The decisive special circumstance was the finding that the defendant had actively sought to avoid personal service, which was the only method permitted under the local law. The court relied particularly on his failure to respond to 26 messages and the uncontroverted evidence that his office staff gave evasive answers about his availability.
4. Extension of time. The alternative application under CPR 7.6(3) did not need to be determined. Had it been necessary, it would have been dismissed because, although the claimant had acted promptly, it had not taken all reasonable steps to comply with the service requirements.
5. The court would hear counsel on the form of order and consequential matters, including costs.

First-instance decision. The judgment does not state any prior appellate decision in this litigation.