The Supreme Court upheld a High Court decision granting the appeallant permission to serve a claim form outside of the jurisdiction, despite the alternative method of service not originally being permitted by the order.
The scope of this decision is relevant to cases where neither a Hague Service Convention nor a bilateral service convention applies.
How did the Supreme Court reach its decision?
One of the points that the Supreme Court was asked to consider was whether the steps taken by the appellant to bring the claim form to the attention of the respondent could be considered good service of the claim form.
It held that the service of an untranslated copy of the claim form, in English, that was sent to the defendant's Lebanese lawyer in Beirut was considered good service.
The reasons for this were that service through judicial authorities which required a translation into Arabic were:
- holding up proceedings
A key factor in the decision was that the respondent had not only refused to give an address for service, but was also fully apprised of the nature of the claim through his legal advisers.
A break from tradition?
The Civil Procedure Rules (CPR) give the court the ability to allow the service of a claim form using an alternative method of service in the event there is a 'good reason' when serving documents within the UK.
However, a similar provision does not exist in the CPR for the service of documents outside of the jurisdiction. Such an absence has created uncertainty as to whether a claimant would be permitted to use an alternative method of service for service outside the jurisdiction.
This case is of particular importance because it suggests a move away from the court's traditional approach to service outside the jurisdiction.
Historically service outside of the jurisdiction was characterised by the assumption that it was a declaration of sovereign power over a defendant and the country in which proceedings were served. In this instance the courts have taken a pragmatic and practical approach. The Supreme Court reached its decision in part due to the increasing mutual cooperation between countries and the global nature of litigation.
The Supreme Court decision suggests a more pragmatic approach by the courts to international disputes, and it is a noteworthy development in relation to service outside of the jurisdiction.
In cases where neither the Hague Service Convention nor a bilateral service convention is applicable, the court should consider all the circumstances and ask whether there was a 'good reason' to order that the steps taken to bring the claim form to the attention of the respondent constitute good service.
Importantly, the Supreme Court held that such an order should not be considered 'exceptional' or one that required 'a very good reason'.
In light of the decision, subsequent similar cases will concentrate on the circumstances where the court will use its discretion to decide whether a claimant has a 'good reason' to allow an alternative method of service.
If you are seeking to serve a claim form outside of the jurisdiction in a country in which neither the Hague Service Convention nor a bilateral service convention applies, then this case may be of importance. If you have any questions about service outside the jurisdiction, please do not hesitate to get in touch.