BVC v EWF

A defendant who files an acknowledgment of service but applies out of time to challenge jurisdiction may obtain relief from sanctions where the breach is immaterial and the circumstances justify an extension. In an online privacy or harassment claim, jurisdiction may arise under the Lugano Convention where the claimant has a good arguable case that England is the centre of interests, or that a real and substantial tort occurred there. Service out of the jurisdiction by email requires exceptional or special circumstances because it engages the sovereignty of the foreign state. Urgent injunctive proceedings and the need for effective protection may satisfy that threshold. The court may retrospectively validate alternative service under CPR r.6.15(2).

The claimant brought a claim for misuse of private information and harassment and obtained an interim injunction restraining threatened publication of private information. The claim form and order were sent by email while the defendant was in Switzerland. The defendant filed an acknowledgment of service and later applied to challenge jurisdiction and set aside service.

The claimant accepted that the jurisdiction challenge was out of time but did not oppose an extension. The central issues were whether the court had jurisdiction under the Lugano Convention and whether email service in Switzerland was valid or could retrospectively be regularised.

1. Relief from sanctions. Applying the three-stage approach in Denton v TH White Ltd – Practice Note [2014] 1 WLR 3926, the court considered the seriousness and significance of the breach, the reason for it and all the circumstances. The delay caused no material prejudice, resulted from a misunderstanding of the rules, and concerned an important jurisdictional application. Relief and a retrospective extension were therefore granted.
2. Jurisdiction. The defendant was domiciled in Switzerland, so the general rule in Article 2(1) of the Lugano Convention applied subject to the special jurisdiction provisions. Under Article 5(3), the claimant showed a good arguable case that England was his centre of interests. His nationality, substantial professional history and reputation in England, together with the English-language publication, supported that conclusion. The approach in eDate Advertising GmbH v X [2012] QB 654, Shevill v Presse Alliance SA [1995] 2 AC 18 and Bolagsupplysningen OÜ v Svensk Handel AB [2018] 3 WLR 59 was applied.
3. Alternatively, the claimant established a real and substantial tort within England in respect of misuse of private information. The good arguable case threshold described in Canada Trust Co v Stoltzenberg [1998] 1 WLR 547 was satisfied. It was unnecessary to decide the further argument based on Article 31 of the Lugano Convention.
4. Service. The original email service was not authorised as service out of the jurisdiction. Service in Switzerland ordinarily had to comply with CPR r.6.40 and the Hague Service Convention. However, the high threshold for retrospective alternative service under CPR r.6.15(2) was met. Following Cecil v Bayat [2011] 1 WLR 3086, the urgency of the injunction application and the need to protect the claimant’s rights made email the only effective method. The steps taken constituted good service.
5. The defendant’s application to challenge jurisdiction and set aside service was dismissed. Directions and the form of order were left for written submissions.