Cavadore Ltd & Anor v Jawa & Anor

Service out of the jurisdiction must comply with the applicable domestic law where the order permitting service requires that result, and with CPR 40(3)(c). Contractual provisions for notices do not create an agreed method for serving proceedings unless they clearly say so.

Retrospective validation under CPR 6.15(2) is an evaluative exercise. Exceptional circumstances are unnecessary, but notice of the claim is only a necessary condition. The court must consider the quality and intended character of the purported service, the claimant’s steps, prejudice, and the defendant’s knowledge at the relevant time. Defective, incomplete or deliberately irregular delivery may provide no good reason for validation.

The claim arose from alleged breaches of franchise agreements and misuse of intellectual property rights. Default judgments had been entered against the defendants after purported service in Saudi Arabia by delivery to a company office, a law firm, and a PO Box.

The defendants applied under CPR 13.2 and CPR 13.3 to set aside the judgments. The claimants cross-applied under CPR 6.15(2) and CPR 6.27 for retrospective validation of the steps taken. The central issues were whether service was valid under Saudi Arabian law and, if not, whether there was good reason to validate it retrospectively.

1. Validity of service. The purported service was ineffective under Saudi Arabian law. Delivery to the Saudi law firm was ineffective because it was not authorised to accept service. Delivery to the defendants’ office lacked the confirmatory notice required by Article 14 of the Saudi Arabian Law of Civil Procedures. PO Box service was ineffective, particularly because the relevant address was no longer in use. Foreign process also required legalisation and Arabic translation under Article 23.
2. Effect of the English order. The order permitting service by a method permitted under Saudi Arabian law applied to both the PO Box and other methods of service. It could not override CPR 40(3)(c). The franchise agreements did not create an agreed method of serving proceedings under CPR 6.11. Their provisions concerning contractual notices were separate from the appointment of Mr Jawa as agent for service.
3. Retrospective validation. The court applied the principles drawn from Abela v Baadarini, Societe Generale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS, Kaki v National Private Air Transport Co and Barton v Wright Hassall LLP. The inquiry under CPR 6.15(2) is evaluative and concerns all relevant circumstances. Exceptional circumstances are unnecessary. Knowledge of the claim is necessary but insufficient; the quality and apparent purpose of the service remain important. The court must consider the claimant’s steps, prejudice, and the defendant’s knowledge at expiry of the claim form.
4. The defendants had no relevant knowledge on 15 or 16 July 2018. The PO Box documents were not received. The documents delivered to the law firm were incomplete, apparently included an unissued claim form and draft particulars, and did not clearly indicate that formal service was intended. The claimants gave no adequate explanation for their failures and had alternative protection through proceedings in Saudi Arabia and Bahrain. There was no good reason to validate service.
5. The applications under CPR 6.15(2) and CPR 6.27 were refused. The two default judgments were set aside. The defendants’ prospects of defending the claim and the proposed stay were therefore not determined. The court indicated obiter that it would not have favoured a stay because the English contractual claims extended beyond the foreign trade mark proceedings.