Koza Ltd & Anor v Akcil & Ors

CPR 6.15 may be used for an application notice as well as a claim form. It is available where service out of the jurisdiction is permitted without prior permission, provided that the proceedings are independently capable of lawful service. In cases governed by the Hague Convention, the rule requires good reason. The court should not automatically add an exceptional-circumstances gloss, although the Convention and the restrictions imposed by the receiving state may require a particularly clear and cogent justification. Mere delay or expense will ordinarily be insufficient. A real risk that treaty service will fail or be substantially obstructed, causing serious procedural unfairness, may constitute good reason.

The claimants sought permission to add new defendants and to serve the application notice by alternative means. The relevant application concerned the SDIF, an organ of the Turkish State, and former or current directors of Koza Altin. Turkey was a party to the Hague Convention and had designated a state authority for service.

The court considered whether CPR 6.15 applied to an application notice, whether it was available where service out did not require permission, and what test governed alternative service where the Hague Convention applied. The central issue was whether the evidence of likely obstruction, delay and alleged Turkish State involvement established good reason for alternative service.

1. Application of CPR 6.15. CPR 6.15 applied to the application notice. CPR 6.2(c) treated a relevant pre-action application as a claim or claim form for the purposes of service, and CPR 6.27 extended CPR 6.15 to any document in the proceedings.
2. Independent foundation for service. CPR 6.15 was not a freestanding foundation for jurisdiction. The proceedings first had to be capable of lawful service independently of CPR 6.15. Where service out was permitted without permission, that antecedent requirement was satisfied when the proceedings were issued, after which the court could consider alternative service.
3. Applicable test. The rule required good reason. In a Hague Convention case, the Convention was an important circumstance and the more restrictive the receiving state’s position, the more cogent the reason required. Mere delay or expense was ordinarily insufficient. The court declined to treat exceptional or special circumstances as an additional universal requirement, although the distinction might make little practical difference in an especially restrictive case.
4. Application. The alleged seizure proceedings, the involvement of Turkish authorities, and the evidence concerning the designated central authority created a real risk that Hague Convention service would fail or be substantially delayed. That risk, coupled with the potential unfairness to the claimants, amounted to good reason even on the stricter exceptional-circumstances approach.
5. The court proposed to make an order permitting alternative service. On the reasoning supplied, the court’s present inclination was to avoid making Mishcon de Reya the medium of service on the SDIF, while recognising the close practical relationship between the SDIF and its appointed directors.

First-instance decision. The judgment refers to an earlier interim injunction decision by Snowden J in the same proceedings, but no citation for that decision is stated.