DVB Bank SE v Vega Marine Ltd & Ors

Alternative service of proceedings on a contractually appointed process agent may be authorised retrospectively or prospectively where there is good reason. An agreement appointing an agent to receive process may, where appropriate, constitute exceptional circumstances for using that method even if service abroad might otherwise be governed by an exclusive treaty regime.

Permission to seek summary judgment should generally be granted where the claim was validly served, the court has jurisdiction and the claimant has a reasonable belief that a reasoned judgment may be more readily enforceable than a default judgment. Summary judgment is appropriate where the defendant has no realistic prospect of defending the claim, the material facts are undisputed and there is no compelling reason for trial.

The claimant banks sought judgment against two Liberian borrower companies and their guarantor for sums due under a loan agreement, a supplemental agreement and a personal guarantee. The defendants had appointed a London firm as process agent, but did not acknowledge service, file a defence or participate in the applications.

The court was asked to determine whether documents other than the claim form had been validly served, whether permission should be granted to apply for summary judgment, and whether the contractual debt and guarantee liability could be determined summarily. The court also considered the date from which default interest ran and the second claimant’s succession to a lender’s rights.

1. Proceeding in the defendants’ absence. The defendants had sufficient notice of the proceedings, applications and hearing, had ample opportunity to participate, and had voluntarily waived that opportunity. The hearing therefore proceeded under CPR 23.11, with the claimant’s counsel asked to draw attention to points the defendants might reasonably have raised.
2. Service through process agents. CPR 6.11 permitted service of the claim form in accordance with the contractual process-agent clauses. CPR 6.15 and CPR 6.27 enabled the court to authorise retrospectively and prospectively service of other documents by that method. The contractual appointment’s purpose was to avoid the delay and expense of service abroad. It therefore supplied good reason and, if necessary, exceptional circumstances for alternative service. The relevant documents were validly served.
3. Permission to apply for summary judgment. Under CPR 24.4(1)(i), permission was appropriate because the claim had been validly served, the English court had jurisdiction under the exclusive jurisdiction clauses and Article 25 of the Regulation (EU) 1215/2012, and a reasoned judgment could be more readily enforced abroad than a default judgment. A reasonable belief in that comparative enforceability was sufficient.
4. Summary judgment. The principles in The LCD Appeals [2018] EWCA Civ 220, including the distinction between a realistic and fanciful prospect and the prohibition on a mini-trial, were applied. The defendants had no real prospect of defending authenticated written contractual claims. There were no material factual disputes or other compelling reason for trial.
5. Construction and orders. The more natural construction of clause 7.1 of the Fourth Supplemental Agreement was that default interest on the accelerated indebtedness ran from the end of the 30-day rectification period, 2 March 2019. The claimants obtained judgment for US$11,741,758.12 against the borrowers and the guarantor, with interest at 3.5 per cent per annum from that date.