Goshawk Aviation Ltd & Ors v Terra Aviation Network S.A.S. & Ors

Under CPR rule 6.15, the court asks whether, in all the circumstances, there is good reason to authorise alternative service. The inquiry is fact-sensitive and includes whether the defendant knows the claim’s existence and contents, the method and timing of attempted service, likely delay through ordinary overseas service, the effect of delay on the litigation, and any prejudice or procedural abuse.

Where a defendant is outside the jurisdiction, an alternative-service order requires permission to serve out. However, after granting permission to serve out, the court may retrospectively validate steps taken pursuant to an earlier defective alternative-service order.

The claimants brought proceedings concerning sums allegedly due under aircraft leases, guarantees, indemnities and a side letter. Lion and Thai Lion, incorporated respectively in Indonesia and Thailand, challenged service of the claim form.

Initial service through English process agents was conceded to be ineffective because claims under the side letter were not covered by the relevant process-agent provisions. Moulder J subsequently ordered alternative service by email on the defendants’ solicitors under CPR rule 6.15, but did not grant permission to serve out.

The central issues were whether there was good reason for alternative service, whether the earlier order was valid without permission to serve out, whether service could be retrospectively validated, whether an extension of time was required, and who should bear the costs of the first application.

1. Alternative service. The court adopted the approach in Abela v Baadarani [2013] 1 WLR 2043: the question under CPR rule 6.15 is whether, in all the circumstances, there is good reason to order alternative service. The court must consider the circumstances cumulatively.
2. Relevant considerations included the defendants’ full knowledge of the claims, knowledge obtained through an attempt intended as formal service, the absence of a Hague Convention or bilateral service treaty, the probable delay in diplomatic service, the effect of delay on related proceedings, and the risk of fragmentation, additional cost and repeated litigation. Agreement to process-agent service for other contracts could not itself justify alternative service where the parties had not agreed to service of the particular claims.
3. The court found good reason for alternative service. Lion and Thai Lion knew the claims and had solicitors fully engaged in the litigation. Ordinary service might take six months or longer in Indonesia and twelve months or longer in Thailand. Delay would risk procedural complexity and duplication, particularly because related issues arose against LEO.
4. Validity of the Moulder Order. Following Marashen v Kenvett [2018] 1 WLR 288, the power to give directions about service under CPR rule 6.37(5)(b)(i) arose only after permission to serve out had been granted. The Moulder Order was therefore made without jurisdiction and had to be set aside.
5. Permission to serve out granted later could not retrospectively cure the jurisdictional defect in the original order. Nevertheless, CPR rule 6.15(2), read with CPR rule 6.37(5)(b)(i), enabled the court to make a fresh order validating retrospectively the steps taken following the Moulder Order. The provisional course was to grant permission to serve out and declare those steps good service.
6. The court considered that an extension of time would have been granted if necessary. Each side was ordered to bear its own costs of the first application because there was fault both in the claimants’ defective attempted service and in the defendants’ failure promptly to identify the defect.