Olympic Council of Asia v Novans Jets LLP & Ors

In contempt proceedings involving service in Ukraine, where the state has reserved its position under Article 10 of the Hague Service Convention, alternative service requires exceptional circumstances, not merely a good reason. Exceptional circumstances may arise from the urgency of contempt proceedings, effective notice by the proposed alternative method, substantial service delays caused by armed conflict, and a real risk of evasion.

Personal service of an order may be dispensed with retrospectively where the material terms were effectively communicated to the alleged contemnor to the criminal standard. Permission to bring contempt proceedings alleging a knowingly false statement is distinct from permission for proceedings alleging interference with the administration of justice. Permission may be refused where there is no strong prima facie case and the proceedings are not in the public interest.

The claimant sought to commit the second and third defendants for contempt arising from alleged breaches of freezing and disclosure orders made in related proceedings. The third defendant, resident in Ukraine, challenged service out of the jurisdiction, alternative service of the contempt application, service of the underlying orders, and the need for permission to pursue two counts of contempt.

The underlying orders required disclosure of aircraft chartering, flight and financial information. The first defendant had failed to comply, and the claimant alleged that the third defendant was responsible as a de facto director or accessory. A separate count alleged that he knowingly made a false statement in an affidavit.

The court therefore had to determine the applicable test for alternative service under the Hague Service Convention, whether service of the orders could be retrospectively validated, and whether permission was required or should be granted for the two counts.

1. Service out. The challenge to the order permitting service out fell away. There was a serious issue to be tried, and the relevant gateway in PD 6B para 3.1(24) applied to a contempt application. Permission would in any event have been granted.
2. Alternative service. Ukraine was party to the Hague Service Convention and had reserved its position under Article 10. In such a case, CPR 6.15 required exceptional circumstances before service by a method outside the Convention could be authorised. This reflected comity and the significance of the foreign state’s objection. Mere delay or expense was insufficient.
3. Exceptional circumstances existed. The application concerned contempt and required expedition; email service had effectively brought the application to the defendant’s attention without prejudice; the Russian invasion created serious service delays and uncertainty; and there was a real risk that ordinary service would be frustrated. The order for alternative service was therefore maintained.
4. Service of the orders. The January, April and May orders had not been personally served on the third defendant. However, personal service was retrospectively dispensed with. The material terms had been effectively communicated to him, satisfying the key requirement identified in MBR Acres Ltd v Maher [2022] EWHC 1123 (QB). The court would also have ordered retrospective alternative service under CPR 6.15 and 6.27.
5. Permission for contempt proceedings. CPR 81.3(5)(b) required permission for the count alleging a knowingly false statement. It did not require permission for the distinct count alleging breaches of court orders and interference with the administration of justice in existing proceedings. The factual premises of the two counts were different, unlike in Cole v Carpenter [2020] EWHC 3155 (Ch).
6. Permission for the false-statement count was refused. The inconsistency between the letter and affidavit did not establish a strong prima facie case of knowing falsity, and the additional contempt proceedings were not shown to be in the public interest or proportionate. The first count was neither stayed nor struck out.

The order for service out was not set aside; alternative service was ordered; personal service of the three orders was retrospectively dispensed with; permission was unnecessary for Count 1 and refused for Count 2.

The judgment describes earlier orders and related proceedings before Moulder J, including the judgment reported at [2022] EWHC 88 (Comm). It is a first-instance decision on preliminary issues in the contempt application.