Slade v Abbhi

An order requiring a judgment debtor to attend court under CPR 71.3 must ordinarily be served personally, although the court did not finally decide whether that requirement can be waived by agreement. A waiver depends on the evidence, including the relevant party’s knowledge and subsequent conduct. For a defendant in a Hague Service Convention territory, alternative service is exceptional and requires special circumstances. A desire to save cost or avoid delay is insufficient. Moreover, alternative service within the jurisdiction cannot be ordered for a person outside the jurisdiction unless the court has first authorised service out. An ex parte application is unsuitable where material facts and the applicable service test have not been fairly presented.

The claimant obtained judgment for unpaid legal fees and an order under CPR 71 requiring the defendant, resident in the United States, to attend an examination as to his means. The original order was sent by email to the defendant’s solicitors. After the examination was postponed and later relisted, the defendant challenged service and applied to set aside an order declaring that personal service had been waived and permitting alternative service through his solicitors.

The central issues were whether the earlier order could properly have been made without notice, whether the defendant had waived personal service, and whether alternative service was legally available and justified.

1. The application succeeded. The order made without notice on 13 February 2020 was set aside, except for the paragraph permitting the claimant to ask further questions.
2. A declaration concerning service may in principle be made without notice. However, the application in this case omitted the defendant’s residence in a Hague Service Convention territory and relied on the wrong legal test. It also involved factual disputes about waiver which were unsuitable for ex parte determination.
3. The personal-service requirement in CPR 71.3 is on its face mandatory. The court did not decide finally whether it could be waived, but rejected the submission that waiver was legally impossible. On the evidence, no waiver had occurred. The defendant’s solicitor had been unaware of the CPR 71.3 requirement when accepting email service, and later expressly stated that personal service had not been waived. The case was therefore materially different from New York Mellon v Essar Steel India Limited [2018] EWHC 3117 (Ch).
4. Alternative service was unavailable. The absence of an order permitting service out of the jurisdiction was fatal under CPR 6.37(5)(b)(i), as explained in Marashen Limited v Kenvett Limited [2017] EWHC 1796 (Ch). In any event, because the defendant was in a Hague Convention territory, the applicable test was exceptional circumstances, not merely good reason. That test was not met: there had been no attempt at personal service, no evidence that the defendant sought to avoid it, and only arguments based on expediency.