Genius Sports Technologies Limited & Ors. v Soft Construct (Malta) Limited & Ors.

Delay inherent in service through the Hague Service Convention does not, by itself, establish special or exceptional circumstances justifying alternative service. Parties must anticipate that delay when commencing proceedings against entities domiciled in Convention states.

The court must balance the procedural disruption caused by delayed joinder against international comity and the defendants’ interests. Delay caused by the claimants’ failure to join necessary parties promptly weighs against exceptional relief. A later application is not necessarily barred if changed circumstances show that Convention service would materially disrupt the trial.

The claimants sought alternative service on two proposed representative defendants domiciled in Brazil and Romania, both states subject to the Hague Service Convention. The defendants had been identified as parties whose joinder was necessary so that issues concerning basketball, volleyball and related attributes could be determined in a manner binding the relevant class.

The application concerned the method and timing of service, rather than permission to serve out of the jurisdiction. The court also determined the defendants’ costs arising from an earlier unsuccessful application to join representative parties.

1. Alternative service. The application for alternative service was refused. The claimants could serve out of the jurisdiction as of right, but the ordinary Convention route remained applicable.
2. The Hague Service Convention’s anticipated delay, even a delay of about 10 months, was insufficient by itself to constitute special or exceptional circumstances. A party commencing proceedings against a defendant domiciled in a Convention state must budget for the Convention’s normal delay. This approach was consistent with the principle stated in Nokia Technologies OY v OnePlus Technology (Shenzhen Co., Ltd) and Ors, [2022] EWHC 293 (Pat).
3. The court was not prepared to presume that either proposed defendant consented to accelerated service or would decline to participate. Joinder should also have been pursued earlier. The claimants’ delay was relevant because third parties whose rights may be determined at trial should ordinarily be before the court.
4. The court weighed the substantial procedural disruption caused by delayed service against comity and the adverse effect of telescoping the Convention timetable. In the circumstances, comity outweighed the advantage of faster joinder.
5. The refusal was not irrevocable. If the participation of the proposed defendants later proved sufficiently important to cause an effective 10-month disruption to the trial, a further application could be considered. In the meantime, the parties were directed to progress amendments, the list of issues and disclosure-related steps with the existing defendants.
6. Costs. The defendants were the successful parties on the earlier joinder application, although the objections concerned the route proposed rather than representative joinder in principle. The court summarily assessed their costs at £70,000, allowing for duplication concerning amendments, unnecessary attendance by competition counsel and proportionality. The costs were payable within 14 days. The court declined to stay payment pending determination of other costs because costs should ordinarily be assessed and paid on a pay-as-you-go basis.

Not an appeal. The judgment determined an application for alternative service and a costs application in ongoing first-instance proceedings.