Alexander Gorbachev v Andrey Grigoryevich Guriev

An application under Senior Courts Act 1981 section 34 and CPR 31.17 is a claim and may originate proceedings against a non-party for the purposes of Practice Direction 6B gateway (20). The gateway must receive a neutral construction. Section 34 permits proceedings against persons outside England and Wales, subject to the ordinary jurisdictional requirements and the court’s discretion.

Applications for disclosure from overseas third parties will generally proceed by letter of request. Direct service out may nevertheless be appropriate where the documents are in England, held by English solicitors, connected with existing proceedings, and the letter of request procedure would be ineffective or too slow. Alternative service may also be ordered where delay under the Hague Service Convention would disrupt the existing proceedings.

The claimant sought disclosure of documents held by Forsters LLP, an English firm of solicitors, in existing proceedings concerning interests in a Russian fertiliser business. The documents related to two Cyprus trusts and were potentially relevant to the forthcoming trial.

The claimant applied under section 34 of the Senior Courts Act 1981 and CPR 31.17. At an earlier hearing, the trustees were joined and permission was granted to serve the applications outside the jurisdiction by delivery to Forsters’ offices and by email. The trustees applied to set aside that order.

The issues were whether gateway (20) permitted service out of a CPR 31.17 application, whether the court should exercise its discretion to permit service out, and whether alternative service was appropriate.

1. Jurisdiction. The trustees’ application to set aside the order was dismissed. A CPR 31.17 application under section 34 of the Senior Courts Act 1981 is a claim within CPR Part 6. The definition of claim in CPR 6.2 is broad and includes procedural applications made by application notice.
2. Such an application originates proceedings against the non-party. The fact that substantive proceedings already exist between other parties does not prevent the application notice from commencing limited proceedings between the applicant and the non-party. The reasoning in Obex was followed, and the criticisms of that decision in Hollander were rejected.
3. Gateway (20) requires a neutral construction. The enactment must allow proceedings to be brought, allow them to be brought against persons outside England and Wales, and not fall within another gateway. Section 34 contains no territorial limitation. Its operation with the rules of court, and the wide rule-making powers under the Civil Procedure Act 1997, support the conclusion that it can apply to persons outside the jurisdiction.
4. The decision in Nix was not followed on jurisdiction. It had been argued on a different basis and without the Court of Appeal’s later guidance in Orexim. The court nevertheless accepted the general importance of the letter of request regime identified in Nix. Direct service was appropriate here because the documents were in England, held by English solicitors, connected with the English proceedings, and the Cyprus procedure would probably yield no useful disclosure before trial.
5. Alternative service was properly ordered. The principle identified in M v N applied because delay in service under the Hague Service Convention could substantially interfere with the existing trial directions. The trustees’ application therefore failed.