Aditya Khanna & Anor v Navin Khanna & Ors

Applications to set aside an order for alternative service and an appeal against that order may be pursued in the alternative. The set-aside application requires a rehearing, whereas an appeal involves review of the first-instance decision.

Where the intended country of service has objected under Article 10 of the Hague Service Convention, alternative service under Civil Procedure Rules 1998, rules 6.15 and 6.37 requires exceptional or special circumstances. This is not a test of rarity. The court must assess whether the reasons for alternative service sufficiently outweigh comity. Delay, multiple defendants and conduct amounting to technical avoidance of service may be considered cumulatively.

Rule 6.40(4) does not impose a universal procedural requirement for expert evidence, although the claimant must be satisfied that the proposed method is not contrary to foreign law.

The claimants brought trust-related claims against two individual defendants and three companies. The first defendant was outside the jurisdiction in India. The claimants obtained an order permitting service on him by email, despite India’s objection under Article 10 of the Hague Service Convention.

The first defendant obtained permission to appeal and applied to set aside the order. He argued that the claimants had not shown that email service was permitted by Indian law and that the circumstances were not sufficiently exceptional. The second defendant sought an extension of time to serve his Defence if the order were set aside.

The court had to determine whether both procedural routes could be pursued, the applicable test on the set-aside application and appeal, whether rule 6.40(4) required evidence before the original decision-maker, and whether the circumstances justified alternative service.

1. Both routes permitted. The first defendant could pursue the appeal and the set-aside application in the alternative. The court treated them separately and avoided creating a hybrid test. Under CPR rule 23.10, a person not served with an application notice before an order made without notice is entitled to apply to set it aside. The court must rehear the matter rather than merely review the earlier decision.

2. Evidence on a set-aside application. New evidence generally had to relate to facts existing at the date of the original hearing. Later events could nevertheless illuminate considerations relevant at that date. The claimants were not required to provide expert evidence on foreign law as part of their duty of full and frank disclosure, which concerns adverse facts or law rather than points in their favour.

3. Exceptional circumstances. Under CPR rules 6.15(1) and 6.37(5)(b), the same requirement of good reason applies to alternative service out of the jurisdiction. Where the destination state has objected under Article 10 of the Hague Convention, good reason must sufficiently outweigh the importance of comity. “Exceptional” does not mean rare. The assessment is fact-sensitive and must be made in the round.

4. A delay of about 12 months was close to the point at which it might be incompatible with the due administration of justice. The fact that the other defendants had been or were shortly to be served was relevant, although it carried less weight than in a case involving a late-added defendant. The first defendant’s awareness of the proceedings and technical steps to avoid service were also relevant, but neither factor alone was sufficient.

   The cumulative effect of the delay, the presence of four other defendants and the first defendant’s conduct amounted to exceptional circumstances. Service by email in India was therefore justified.

5. Rule 6.40(4). The rule prohibits an order authorising conduct contrary to the law of the country of service. It does not impose an additional requirement that expert evidence must be filed in every application for alternative service. The claimant must satisfy itself that the rule will not be infringed. Expert evidence adduced for the set-aside application established, on the balance of probabilities, that Indian law did not prohibit email service.

6. Appeal and consequential application. The appellate court should interfere with the first-instance evaluation of multiple factors only for an error of principle or if the conclusion was wrong. The Master’s decision was based on materially the same considerations and was upheld. The second defendant’s application for an extension of time fell away and was dismissed.

The judgment itself records that Leech J granted permission to appeal on 6 August 2025 from Master Pester’s order of 13 May 2025. The High Court dismissed the appeal and separately dismissed the application to set aside the order.