Fiona Havlish Et Al. v Islamic Republic of Iran Et Al.

The power under CPR 6.16 to dispense with service of a claim form is exceptional, but may be exercised prospectively where service is realistically impossible and further attempts would be counterproductive. The court should consider whether the defendant is likely to become aware of the proceedings by other means. It must balance that consideration against the claimant’s access to a remedy and the risk that refusal would allow the defendant to avoid proceedings without substantive justification. An order dispensing with service is not inconsistent with section 12 of the State Immunity Act 1978 where the claim form is no longer a document required to be served for instituting proceedings.

The claimants, representatives or relatives of victims of the 11 September 2001 terrorist attacks, sought to register and enforce in England a judgment of the United States District Court for the Southern District of New York against Iran and related defendants.

They applied without notice for an order under CPR 6.16(1) dispensing prospectively with service of the claim form. Evidence showed repeated unsuccessful attempts by British diplomatic officials to serve documents in Iran, and a stated risk that further attempts would damage bilateral relations. The central issues were whether the circumstances were exceptional, whether dispensing with service was compatible with section 12 of the State Immunity Act 1978, and whether alternative steps would bring the proceedings to the defendants’ attention.

1. Application granted. The circumstances were exceptional. The Foreign and Commonwealth Office evidence established that repeated attempts to serve the Iranian authorities had failed, that further attempts were expected to fail, and that they could harm United Kingdom–Iran relations.
2. The power under CPR 6.16(1) may be exercised prospectively, although only in exceptional circumstances. The court accepted that the notes to the CPR recognised that use of the power.
3. Following the approach in Certain Underwriters at Lloyd's v The Syrian Arab Republic [2018] EWHC 385 (Comm), the court considered that an order dispensing with service was not inconsistent with section 12 of the State Immunity Act 1978. Once service of the claim form has exceptionally been dispensed with, it is not a document required to be served for instituting proceedings within section 12.
4. A relevant factor in exercising the discretion was whether the defendants were likely to know of the proceedings. The evidence showed that they were likely to know of the United States judgment and enforcement efforts in other countries, but did not establish knowledge of these English proceedings.
5. The claimants therefore undertook to bring the proceedings to the defendants’ attention by emailing and couriering the documents to the Iranian Ministry of Foreign Affairs and by serving the Luxembourg lawyers representing certain defendants in related Luxembourg proceedings. Those steps, together with the exceptional circumstances and the risk of loss of any effective remedy through limitation, justified the order.

The court made the order sought, subject to corrections agreed with counsel.