Introduction
1. This is an appeal brought with the permission of Moore-Bick LJ from an
order made by Mackay J ('the judge') on 20 December 2006 in which he
made an order under CPR 6.9 that service of the claim form be dispensed
with. In order to understand the issues in this appeal it is necessary for
me to refer briefly to the nature of the case, the procedural history of the
action and the earlier decision made by the judge on 8 December 2006.
The nature of the case
2. I can take the relevant facts from [3] and [4] of the judgment of
8 December. The respondent, whom I will call 'the claimant', is an
Icelandic businessman. The appellant, whom I will call 'the defendant', is
a professor of political science at the University of Iceland and domiciled
in Iceland. The basis of the claimant's claim is the alleged publication on
the defendant's website in England of defamatory material relating to the
claimant. Solicitors for the claimant wrote to the defendant on 8 June
2004 setting out the claimant's complaints in some detail and on 3 July
2004 the defendant disconnected the home page on his website. On 5
July the claimant's solicitors sent an email to the defendant warning him
that proceedings would be issued.
The procedural history
3. The claim form in this action was issued on 4 August 2004. The
claimant's solicitors took immediate steps to have the claim form served
on the defendant in Iceland. As explained in more detail below, on the
same date they made an appropriate request to the court by signing and
submitting Form PF 7. Less than a month later, on 2 September 2004,
on the instructions of the International Matters Unit of the Foreign and
Commonwealth Office ('the 'FCO'), Mr Simon Minshull, who was Deputy
Head of Mission at the British Embassy in Iceland and HM Consul, went to
an address in Reykjavik in order to serve the process on the defendant,
who is a well known figure in Iceland and was known to him.
4. He identified the defendant and gave him the claim form and all the
other relevant documents including the response pack. The defendant,
who reads and understands English, opened the envelope and read the
contents. He retained the documents but did not sign any written receipt
for them. He was not asked to do so. None of this is in dispute. To put
it at its lowest, the defendant knew what the documents were. It is,
however, common ground that on these facts the documents were not
served on the defendant in accordance with Icelandic law.
5. There are various methods of service under Icelandic law as follows.
Process is duly served on a person if it is served (a) by a public process
server or a notary public or (b) by a registered letter delivered by a
postman or (c) subject to certain conditions, by publication in the Official
Gazette or (d) by delivery to the person and that person signing a
declaration on the summons confirming acceptance of the documents.
Icelandic law also provides that, if the person concerned attends court on
the initial hearing of the case, it is irrelevant whether the summons was
otherwise served in accordance with one of the above methods.
6. The problem here for the claimant is that he did not avail himself of
methods (a), (b) or (c) and he could not rely upon any signature on the
summons or claim form because the defendant was not asked to and
did not sign a declaration on the documents confirming receipt of them.
He could not rely upon events at the initial hearing because there has
not been such a hearing in Iceland. It is in these circumstances that it is
common ground that the defendant was not duly served with the English
proceedings in Iceland under Icelandic law, even though he received and
retained the documents on 2 September 2004 and he both knew and
understood what they contained.
7. The defendant took advice in Iceland and was told that it was likely
that the case would be dismissed by the English courts because he was
domiciled in Iceland and, in any case, that there would be no difficulty
in seeking a retrial if judgment should be entered against him. In these
circumstances he did not acknowledge service of the claim form.
8. For their part, the claimant and his solicitors thought that the
documents had been duly served in Iceland and on 23 December 2004,
on being satisfied that they had indeed been served, Master Whittaker
gave judgment in default in favour of the claimant and against the
defendant for damages for libel together with aggravated damages and
costs, with damages to be assessed. Thereafter, the claimant's solicitors
kept the defendant informed of the progress of the proceedings but he
chose to play no part in them. On 13 July 2005 His Honour Judge Previté
QC assessed damages at £55,000 with £10,000 by way of aggravated
damages. He also awarded costs and granted a permanent injunction.
9. On 12 January 2006 the defendant applied to set aside the judgment.
The matter came before the Senior Master, Master Turner, who, after a
one and a half day hearing, on 23 May 2006 dismissed the application to
set aside the judgment under CPR 13.2 and exercised his discretion under
CPR 3.10 and/or 6.9 "to correct any error in respect of service".
10. The defendant appealed to the judge with the permission of Master
Turner and on 8 December 2006 the judge allowed the appeal. He held
that CPR 3.10 could not be used in a case where there had been no
service under the relevant rules for service, which here were the rules
in Iceland. As to CPR 6.9, the judge noted that the claimant had not
sought to rely upon it before him. After the judge had handed down his
judgment on 8 December, the question arose what orders he should
make. It was not in dispute that, in the light of his judgment, the orders
and judgments of 23 December 2004 and 13 July 2005 must be aside
and the claimant has not sought to appeal against the order made to
that effect. The defendant submitted, however, that, in addition to those
orders being set aside, the claim should be dismissed. In response, the
claimant sought an order under CPR 6.9 dispensing with service of the
claim form, alternatively an order under CPR 7.6(3) extending the time
for service of the claim form to a date which would permit 're-service' to
take place.
The judgment and order of 20 December 2006
11. In a reasoned judgment handed down on 20 December 2006 the
judge held that the court had jurisdiction to make an order dispensing
with service of the claim form under CPR 6.9, that it should only do so in
an exceptional case but that this was an exceptional case. In the exercise
of that discretion he concluded that he should make the order sought
under CPR 6.9. He added that in these circumstances it was not necessary
for him to reach a conclusion on the application under CPR 7.6(3). He
therefore made no order "either way“under that rule.
The appeal
13. The central issue in the appeal is whether the judge was wrong to
make an order under CPR 6.9 dispensing with service.
The national perspective
14. CPR 6.9 provides that the court may dispense with service of a
document and that an application for such an order may be made without
notice. It is common ground that "the document“includes a claim form.
CPR 7.6 gives the court power to extend the period within which the
claim form must be served. Rule 7.6(3) provides for the case where the
application is made after the time for serving the claim form has expired,
whether the time was specified under CPR 7.5 or under an order made
under rule 7.6. By rule 7.6(3), the court only has jurisdiction to extend
time in such a case if: (a) the court has been unable to serve the claim
form; or (b) the claimant has taken all reasonable steps to serve the
claim form but has been unable to do so; and (c) in either case, the
claimant has acted promptly in making the application.
15. The correct approach to an application to dispense with service of
a claim form under CPR 6.9 has been considered in a number of cases
decided under the CPR. At the time of the hearing of the appeal they
included: Godwin v Swindon Borough Council [2001] EWCA Civ 1478,
[2002] I WLR 997, Anderton v Clwyd County Council (No 2) [2002] EWCA
Civ 933, [2002] 1 WLR 3174, Wilkey v BBC [2002] EWCA Civ 1561,
[2003] 1 WLR 1, Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656,
[2003] 1 WLR 2441, Hashtroodi v Hancock [2004] EWCA Civ 652, [2004]
1 WLR 3206, Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945,
Kuenyehia v Inrernational Hospitals Group Limited [2006] EWCA Civ 21
and Phillips v Nussberger [2006] EWCA Civ 654, [2006] 1 WLR 2598.
24. With these considerations in mind I turn to the facts. This is to
my mind a truly exceptional case. The claimant was entitled to serve
the proceedings out of the jurisdiction in Iceland under CPR 6.19(1)
because Iceland is a party to the Lugano Convention . His solicitors took
appropriate steps to have the claim form served in Iceland. On 4 August
2004 they made a request of the High Court on the prescribed form,
namely Form PF 7, which is entitled "Request for Service of Document
Abroad (rules 6.26(2)(a) and 6.27(2)(a))", as follows:
"We hereby request that the claim form be sent through the proper
channel to Iceland for service on [the defendant] at [the defendant's
address] and that it may be served as follows:
(i) through the judicial authority of Iceland; and/or
(ii) through the government of Iceland (where the government is willing
to effect service)."
The document concluded with an undertaking to pay "all the expenses
incurred by the foreign judicial authority".
25. This was a request under CPR 6.26 not under CPR 6.27. The request
was made under rule 6.26(2)(a), that is for service of the claim "by
the method in paragraph (1) that has been chosen". As can be seen
from the request, the method chosen was that the claim form be served
through the judicial authority in Iceland and/or through the government
of Iceland. The request was thus made under rule 6.26(1)(a) and/or
(d). It was not made under paragraph (b), which is for service through
a British Consular authority, or under paragraph (c), which is for service
through an authority designated under the Hague Convention . Iceland is
not a party to the Hague Convention .
26. CPR 6.26(4)(b) provides that in such a case the Senior Master will
send the relevant documents to the FCO "with a request that it arranges
for the claim form to be served by the method indicated in the request
[filed by the claimant] or, where that request indicated alternative
methods, by the most convenient method". Neither party procured a
copy of that request from the Senior Master and we do not have a copy
of it. However, although we do not know what form the request to the
International Legal Matters Unit at the FCO took, we do have a letter
dated 14 August from the FCO to Mr Simon Minshull, the Consul in
Reykjavik, sending him the relevant documents for service, including both
the claim form and appropriate translations. The letter, which the claimant
and his solicitors did not see until much later, stated that according
to FCO records there was no local objection to process being served
personally by a member of the Consular staff and asked the Consul to
arrange for service to be effected by that method as soon as possible.
That was correct so far as it went but, unfortunately (as stated earlier),
such service would only be good under Icelandic law if the defendant
signed a declaration confirming receipt of the relevant documents. In the
event the purported service on 2 September 2004 by the Consul was not
good service under Icelandic law because no such declaration was made.
27. On the next day, 3 September 2004, the Consul signed a certificate
stamped by the British Embassy in Reykjavik stating that the relevant
documents were served upon the defendant "by delivery thereof to [him]
in person“at his address on 2 September. By rule 6.26(5) that certificate
is evidence of the facts stated in it. It was that certificate which no doubt
persuaded Master Whittaker that the claim form had been properly
served in accordance with Icelandic law and that it was appropriate to
give judgment on 23 December 2004. Unfortunately no one noticed that
the method for service adopted by the FCO was not one of the methods
requested by the claimant's solicitors in Form PF 7 quoted above and it
did not occur to anyone that the method adopted was not good service
under Icelandic law.
28. In these circumstances, it was in my opinion understandable for the
claimant and his solicitors to think that the claim form had indeed been
served in accordance with Icelandic law, even though it had not. That
is so even though I would accept Mr Dhillon's submission based on the
decision of Treacy J in Chare v Fairclough [2003] EWHC 180 (QB) that
service through the Senior Master and the FCO is service by the claimant
and not service by the court. Nevertherless, in practice I feel sure that
claimants' solicitors both rely upon the Foreign Process Department of
the High Court and upon the FCO to procure the effecting of service in
a case of this kind and rely upon any certificate issued by the FCO. By
CPR 6.24(1)(a), where a claim form is to be served out of the jurisdiction,
it may be served by any method permitted by the law of the country in
which it is to be served. In my opinion, in the particular circumstances of
this case, the claimant and his solicitors could reasonably have thought
that the claim form was served in accordance with the law of Iceland.
I would reject Mr Dhillon's submission that the judge was insufficiently
critical of the claimant and his solicitors in failing to ensure that the
service in Iceland complied with Icelandic law. The judge was, if anything,
more critical than I would be. I should, however, add that the position
may not be the same in the future. The experience of this case should
lead claimant's solicitors in the future to ensure that the service is in fact
valid by the relevant law.
29. The judge summarised the submissions on both sides at [13-18] and
directed himself by reference to the cases to which I referred earlier. I
would reject Mr Dhillon's submission that the judge did not have regard
to all the cases because he did not refer to Wilkey or Kuenyehia in his
judgment. He expressly referred to the passage in Nussberger in which
Neuberger LJ summarised the effect of the cases, including both those
cases. The judge had well in mind the narrow class of case in which it
would be appropriate to grant relief under CPR 6.9 when it would not be
appropriate to grant an extension of time for service under CPR 7.6(3).
He correctly held that this is a case of the kind identified by Mummery
LJ in Anderton as the second class of case, albeit in a different factual
context. Thus it is a case in which the claimant made an ineffective
attempt in time to serve a claim form by a method allowed by the rules.
Personal service is permitted by Icelandic law, so that the method was
allowed by the rules in Iceland but it was ineffective under Icelandic law
for want of a declaration signed by the defendant. Although the judge
does not spell it out quite like that, he must I think have approached it in
that way. In my opinion, he was correct to do so.
32. In my judgment, at any rate viewed from a national perspective,
the defendant has not shown that the judge erred in principle or that
the exercise of his discretion was outside the parameters laid down by
the authorities. He was entitled to hold that this was an exceptional or,
I would say, truly exceptional case. Although the context is somewhat
different, to my mind the considerations in [58] of the judgment in
Anderton (quoted above) resonate here. Thus, to adopt Mummery LJ's
language, the claimant does not need to serve the claim form in order
to bring it to the defendant's attention, there is no point in requiring
him to go through the motions of a second attempt to complete in law
what he has already achieved in fact and the defendant accepts that
he received the claim form before the end of the permitted period of
service. As Mummery LJ put it, apart from losing the opportunity of taking
advantage of the point that service was not in accordance with the rules,
the defendant will not usually suffer prejudice as a result of the court
dispensing with the formality of service of a document which has already
come into his hands before the end of the period for service. On the other
hand, as Mummery LJ put it at [58] and [84], in the absence of an order
dispensing with service, the claimant's claim will be time-barred and he
will be deprived of a trial on the merits of the claim. In my judgment, on
the particular facts of this case, where the claim form was issued in time
and delivered to the defendant within the period for service by a method
of service which the claimant and his solicitors could reasonably have
thought was a reasonable method of service, and where the defendant
knew precisely what the claim was from the claim form, it would be unjust
and contrary to the principle of the overriding objective that cases should
be determined justly to refuse the relief. That is in my opinion so even
though there was some delay before the claimant relied upon CPR 6.9.
33. For these reasons, if the matter were considered from a national
perspective I would hold that there is no basis upon which this court could
properly interfere with the judge's conclusion and, in any event, that he
was correct to reach the conclusion he did. It follows that on the basis
of national law considerations I would dismiss the appeal. I turn to the
international perspective.
The international perspective
34. It seems likely to me that this part of the argument was much more
fully developed before us than it was before the judge. Mr Dhillon submits
that, whatever the solution would be if this were an entirely domestic
case, rule 6.9 should not be used to assist the claimant here, where the
claimant has failed to serve the defendant in Iceland in accordance with
Icelandic law.
35. Iceland is a party to the Lugano Convention , which is in the same
terms as what was the Brussels Convention . Unlike the Brussels
Convention , the Lugano Convention has not been superseded by the
Jurisdiction and Judgment Regulation No 44/2001 of 22 December
2000 ('the Judgment Regulation') or, yet, the new Lugano Convention
which was signed on 30 October 2007 and is expected shortly to be
ratified. It is I think of some importance to note that the English court
has jurisdiction over the claim in this case by reason of article 5(3) of the
Lugano Convention and the decision of the Court of Justice ('the ECJ')
in Shevill v Presse Alliance [1995] ECR I-415 at I-462, paragraph 30,
which give the court of each state in which a libel is published jurisdiction
to determine the claim in respect of that publication. The claimant had
the right to proceed against the defendant in England in respect of the
publication of the alleged libel on the defendant's website in England.
36. I would accept Mr Mercer's submission that the jurisdiction is
conferred on the English court by the Lugano Convention and not by
service of the process. As to service, as stated above, the claimant did
not need the permission of the court to serve the defendant in Iceland
but was entitled to do so under CPR 6.19(1). The problem was that,
although the claimant was entitled, under CPR 6.24(1)(a), to serve the
claim form by any method permitted by Icelandic law, he did not succeed
in doing so for the reasons given above. Mr Dhillon submits that in these
circumstances it would be wrong in principle or inappropriate on the facts
to use CPR 6.9 to dispense with service.
37. In the course of his oral argument in the appeal Mr Dhillon relied
upon the decision and approach of this court in Nussberger, where it was
held that in a case where the question was which of two courts was the
court first seised for the purpose of article 21 of the Lugano Convention ,
rule 6.9 either could not or should not be used in order retrospectively
to validate earlier invalid service and thus to affect the identity of the
court first seised. It was held that an English court did not become the
court first seised until the defendant had been served with the claim form,
that the order of the English court dispensing with service of a document
under CPR 6.9 would not be effective to make the English court the court
first seised within article 21 if the court of a Lugano Convention State
(there Switzerland) was already seised of relevant proceedings and, in
any event, should not be made for that purpose.
38. The reasoning of this court gave some support for Mr Dhillon's
submissions. However, as stated above, an appeal from it has recently
been decided by the House of Lords, which allowed the claimants' appeal.
The principal speech was given by Lord Brown of Eaton-under-Heywood,
with whom the other members of the appellate committee agreed,
although Baroness Hale and Lord Mance expressed views as to when the
English court is first seised for the purposes of the Lugano Convention ,
which is an issue which does not arise here.
39. The facts were briefly these. On 16 December 2004 the claimants
issued proceedings in England for certain relief against a number of
defendants. On 3 February 2005 two of the defendants ('the Swiss
defendants') issued proceedings against the claimants in Switzerland for
negative declaratory relief in respect of exactly the same facts as those
the subject of the English proceedings. The question for decision in the
House of Lords was whether, in the light of the Swiss proceedings, the
English court must decline jurisdiction and impose a stay under article 21
of the Lugano Convention . Under Swiss law proceedings are regarded
as 'definitively pending', which it was agreed was the relevant test, when
they are issued. Under English law, however, as "hitherto understood“(per
Lord Brown at [11]), proceedings are only definitively pending on service
of the proceedings.
40. At [12] Lord Brown posed the first question as being whether there
had been, before 3 February 2005 (when the Swiss proceedings were
issued) "service of the English proceedings upon [the Swiss defendants]
such as to make the High Court "the court first seised". It does not appear
to me that this court had addressed the case in quite that way, although
implicit, if not explicit, in its approach was that the answer was no. Lord
Brown formulated what was I think the same question in this way at
[28(v)]. Was "the service effected“on the Swiss defendants on 19 January
2005 sufficient to satisfy the Dresser rule so as to confer first seisin
upon the English court? The reference to Dresser was a reference to the
decision of this court in Dresser UK Ltd v Falcongate Freight Management
Ltd [1992] QB 502.
41. The events of 19 January 2005 were shortly these. At the end of a
hearing in Zurich to review an attachment order made on 20 December
2004 the judge deputed to effect service under the Hague Convention
on the first Swiss defendant, Mrs Nussberger, in the presence of the
claimants' solicitor handed her a package of documents for which she
signed a receipt. By then, unknown to anyone else, the judge or his clerk
had inspected the documents and had removed from the package the
English language claim form because it had been erroneously stamped by
staff in the High Court "Not for service out of the jurisdiction". The judge
or his clerk had then resealed the package without it. On 24 January Mrs
Nussberger and her lawyers learned that the claim form (although not
its German translation) had been removed from the package and on 3
February issued the Swiss defendants' own proceedings in Switzerland.
The Swiss defendants' lawyers only informed the claimants of the absence
of the claim form in English on 9 February 2005. In a Hague Convention
certificate dated 11 March 2005 a Swiss official recorded that all the
documents had been served upon Mrs Nussberger except the claim form
because of the stamp. In March 2005 the claimants also learned that no
documents had been served on the second Swiss defendant, Galerie Nefer
AG, a company of which Mrs Nussberger was the sole proprietor and the
sole officer.
42. Under CPR 7.5 the claim form should have been included with the
documents served on the defendants.
43. Lord Brown summarised the facts in somewhat more detail than I
have done at [13-29] and then posed two questions at [30]. They were
first, whether there was power in the court by virtue of CPR 3.10 and
6.9 to determine that the "service of documents actually effected on 19
February constituted sufficient service for the court then to be seised
of the proceedings as definitively pending before it under the Dresser
rule“and, secondly, if so whether the court ought in its discretion to
exercise the power.
44. At [31] Lord Brown said that it was at least arguable that, even
without resort to rule 6.9, the court could simply order under rule 3.10(b)
that the Swiss defendants were to be regarded as properly served,
certainly for the purposes of seisin. The "error of procedure“was the
omission of the English language claim form from the package served and
thus a failure to comply with a rule, namely rule 7.5. Lord Brown said that
under rule 3.10(a) that error "does not invalidate any step taken in the
proceedings unless the court so orders", the relevant step being service of
the proceedings out of the jurisdiction.
45. At [32-33] Lord Brown further analysed rule 3.10 by reference to the
decision of this court under RSC Order 2 rule 1, which was the forerunner
of rule 3.10, in Golden Ocean Assurance Ltd v Martin (The Goldean
Mariner) [1990] 2 Lloyd's Rep 215. In that case several defendants were
served with copies of the writ addressed to a different defendant and one
defendant was served only with a form of acknowledgment of service.
The majority concluded that in all the cases service had plainly been
attempted and, that under Order 2 rule 1, service was to be regarded as
valid. At [33] Lord Brown said this:
"… The question in the The Goldean Mariner, just as the question here,
is whether the "attempt to serve the writ“was or was not "ineffective". It
was held there to have been, not ineffective, but effective. That was not
a "retrospective validation". Why should service not similarly be declared
to have been effective here? The question is purely one for our domestic
law, just as the question of when an English court is seised of proceedings
is purely one for domestic law (and, indeed, the question of precisely
what documents have to be served to achieve effective service out of the
jurisdiction under the Hague Convention is purely one for domestic law).“
46. I think that Lord Brown must there have been saying that the service
or purported service could be declared to be valid under CPR 3.10, just as
the service had been declared to be valid under RSC Order 2 rule 1 in The
Goldean Mariner. However, notwithstanding Lord Brown's enthusiasm for
CPR 3.10, Mr Mercer has not formally sought to revive his case based on
rule 3.10 in the instant case. So I say nothing further about it on the facts
here.
47. As I read his speech, Lord Brown ultimately concluded that it was
appropriate to make an order dispensing with service under CPR 6.9. He
said at [35]:
"As I have said, therefore, it may not be necessary to invoke r.6.9 at
all in order to declare the service of documents effected on 19 January
2005 to have been valid and effective. But assume, as both courts below
clearly thought, that it is necessary for the court actually to dispense with
service of the claim form under r.6.9 before the service in fact effected
can be declared valid. Is that within the court's power? The court below
concluded not, on the basis that an order under r.6.9 would by its very
nature involve the retrospective validation of what ex hypothesi would
otherwise fall to be regarded as ineffective service. And this essentially is
the argument by which the respondents now seek to uphold the Court of
Appeal's judgment.
48. Lord Brown rejected that view at [35] in these terms:
"There are, however, as it seems to me, two complete answers to this
argument. The first is this. In making the order pursuant to rule 6.9, Peter
Smith J was not thereby declaring valid and effective service which had
previously been ineffective; rather he was holding the previous service
to have been valid and declaring that it was unnecessary to have served
the English language claim form to make it so. It was in this sense that he
was dispensing with service. There was no more question here, therefore,
than in the The Goldean Mariner of "retrospective validation".
In so far as Lord Brown was relying upon CPR 6.9, I do not think that he
can have been saying that the service on 19 January 2005 was effective
service in the full sense, because, if that were so, it is difficult to see
why it was necessary for the court to make an order dispensing with
service under rule 6.9. In these circumstances, it seems to me that he
must have meant that the service, while defective because of the absence
of the English claim form, was effective for the purposes of the Lugano
Convention , at any rate for the purposes of seisin, and perhaps more
widely.
49. I return to Lord Brown's [35]:
The second answer is that even if a dispensing order under r.6.9 was
properly to be regarded as retrospectively validating what would
otherwise have been ineffective service, in my judgment it would have
been within the court's power to make such an order. True, its effect
would then be to alter the jurisdictional precedence under an international
Convention . But if, as is uncontested, your Lordships could now overrule
Dresser (just as the Court of Appeal in Dresser itself departed from the
ruling at first instance that English courts are seised of proceedings at
the date of issue), the question of seisin being purely one for the national
court, so too can an English court, applying its own procedural rules to
dispense with service of a particular document, make an order which is
effective retrospectively to validate what would otherwise have been an
invalid form of service. I do not believe that this conclusion involves any
exception to the Dresser rule: the rule surely is that the English court is
seised of proceedings at the date of effective service, whatever that date
may eventually be declared to have been. If, however, it does constitute
an exception, so be it: to this limited extent I would if necessary qualify
the decision in The Sargasso [[1994] 3 All ER 180].“
50. Lord Brown then considered whether the court should exercise its
power under rule 6.9. He first said in [36] that, if the question were asked
in a purely domestic context, it was "surely beyond argument“that it
would do so, notwithstanding the fact the exercise of the power would
defeat a prospective Limitation Act defence. As I see it (and as indicated
above), it is my view that the same is true here.
51. At [37] Lord Brown considered whether it was appropriate to make
an order which had the effect of altering the priority of the seisin of
proceedings under an international Convention . He said this:
"On any view the power is one to be exercised sparingly and only in the
most exceptional circumstances. It is difficult to suppose, for example,
that it could ever properly be exercised if there had been no process
of service whatever. Consider in this regard article 27(2) of the Lugano
Convention :
"A judgment shall not be recognised...(2) where it was given in default
of appearance, if the defendant was not duly served with the document
which instituted the proceedings or with an equivalent document in
sufficient time to enable him to arrange for his defence."
53. In my judgment the decision and reasoning of the House of Lords in
Nussberger provide strong support for the claimant's case here. The effect
of rule 6.9, which it is appropriate to use here, was either (as Lord Brown
put it in the first part of [35] and as Lord Mance may have had in mind
at [41]), to hold that the previous service was valid, or, as Lord Brown
put it in the second part of [35], retrospectively to validate what would
otherwise have been an invalid form of service.
55. In these circumstances I see no reason in principle why English
procedural law (or indeed the law of another contracting state if the
facts were reversed) should not have a discretionary power to dispense
with service in an appropriate case, especially since the whole purpose
of service is to inform the defendant of the contents of the claim form
and the nature of the claimant's case: see eg Barclays Bank Ltd v Hahn
[1989] 2 All ER 398 per Lord Brightman at 402H and the definition
of "service“in the Glossary to the CPR, which describes it as "steps
required to bring documents used in court proceedings to a person's
attention.“Thus, as in Anderton and as here, there may be cases in which
formal service is not necessary to achieve that aim.
56. In the light of the reasoning in the House of Lords in Nussberger I
would accept Mr Mercer's submission that in an English action it is only
the English court that is concerned with the sufficiency of the service
of English process abroad. Before the decision of the House of Lords in
Nussberger the only doubt had been as to whether rule 6.9 could be used
in order to affect the date of seisin. See for example Molins Plc v GD SpA
[2000] 1 WLR 1741, where it had been suggested that earlier service
by fax, which did not itself amount to service, could amount to service
on the basis that any irregularity would be cured if the claimant entered
an appearance or, if no appearance was entered, it could be validated
retrospectively by directions of the judge. As to that, Aldous LJ said at
[38]:
"I have no doubt that service is a requirement of Italian law before
proceedings become definitively pending before an Italian court. I
accept that irregular service can under Italian law be validated either by
appearance or an order of the judge and that such validation would be
retrospective; but until such validation has been achieved the Italian court
cannot be seised, as during the interim period the proceedings could not
be definitively pending before the Italian court.“
The last part of that passage is no longer correct in the light of
Nussberger, whereas the first part remains sound. Thus there is no reason
why a court of a member state should not have a provision which is
capable of validating irregular service retrospectively.
57. At the hearing of the appeal Mr Mercer relied upon a section of
Neuberger LJ's judgment in Nussberger at [107-112] in which he
considered obiter the question whether invoking CPR 6.9 would be
contrary to the Hague Convention and concluded that it would not. It
is not now necessary to consider that part of Neuberger LJ's judgment
because the House of Lords has now applied rule 6.9 in Nussberger, to
which the Hague Convention applied. Moreover it did so as part of the
ratio decidendi.
58. This is not a Hague Convention case because Iceland and the
United Kingdom are not both parties either to the Hague Convention
or to any other bilateral convention or treaty on service. Moreover, it is
common ground that the Service Regulation (Council Regulation (EC) No
1348/2000) does not apply to Iceland. However, Mr Dhillon relies upon
article IV of the First Protocol to the Lugano Convention , to which I will
return below.
59. In the course of the hearing of the appeal Mr Dhillon placed some
reliance on other non-domestic cases. In Knauf UK GmbH v British
Gypsum Ltd [2001] EWCA Civ 1570, [2002] 1 WLR 907, the first instance
decision permitted service under CPR 6.8 on a foreign defendant's English
solicitors to enable the claimant to say that the defendant had thereby
been served, and the English court was the court first seised under the
Brussels Convention , before the German court was seised of proceedings
which the defendant was proposing to bring in Germany. In this court,
Henry LJ, giving the judgment of the court, said at [47] that the use of
CPR 6.8
"as a means of turning the flank of [the Hague and Brussels ] Conventions
when … they do not permit service by a direct and speedy method such
as post, is to subvert the Conventions which govern the service rule as
between claimants in England and defendants in Germany."
Lord Brown said at [39] that the facts of Nussberger could hardly be
further from those in Knauf, which involved a naked attempt to use CPR
6.8 to subvert the Brussels Convention .
60. The position was somewhat different in Shiblaq v Sadikoglu [2004]
EWHC 1890 (Comm), [2004] 2 All ER (Comm) 596, where, as Neuberger
LJ noted at [86] of Nussberger in this court, Colman J referred at [56]
to "the strong disapproval of the deployment of [CPR 6.8] to subvert the
rules of the Hague Convention so as to engage the rules of the [Judgment
Regulation] as to jurisdictional precedence“and suggested that the
principle applied equally to CPR 6.9. Colman J said at [57] that CPR 6.9
should not be used prospectively or retrospectively "for the purpose of …
avoiding a defect in service which is inconsistent with a service convention
binding as between this country and the country of service.“Neuberger LJ
added that in the same paragraph Colman J said:
"Where it is sought to apply rule 6.9 retrospectively, if the effect of
dispensing with service is to place the defendant in the same position as
he would have been if service had not been by an impermissible method
but by a method provided for by such service convention , no order
should be made."
I do not think that that statement can stand in the light of the House of
Lords' speeches in Nussberger, at any rate in the context of the Lugano
Convention . However, it was made in the context of a case which was
not a Jurisdiction Regulation or Lugano Convention case but a case where
permission was required to serve the proceedings out of the jurisdiction.
The same is true of the decision of Langley J in Cherney v Deripaska
[2007] EWHC 965 (Comm).
61. As I see it, especially in the light of Nussberger in the House of
Lords, where the circumstances are such that justice requires an order
dispensing with service in a Lugano Convention case like this, for the
purpose of ensuring that an otherwise potential domestic time bar would
not defeat the claim, there is no reason in principle why the court should
not make the order sought in a truly exceptional case. There will be no
prejudice to the defendant because, as here, it is almost certain that
he will have received the court documents in time, have understood
them and decided to take no part in the proceedings for tactical reasons.
Here, as explained in detail above, the documents were served upon the
defendant personally in the sense of being delivered to him and he read
and understood them. The only defect in the service was that he did not
sign a declaration to that effect or, put another way, that he did not sign a
receipt. In Nussberger Neuberger LJ concluded that, subject to the article
21 point (on which this court was of course held to be wrong), on the very
unusual facts of that case, to grant relief under CPR 6.9 would not have
involved "turning the flank of“or "subverting“the provisions of the Hague
Convention ". In my opinion the same is true here.
62. Mr Dhillon submits that Nussberger in the House of Lords supports
the distinction between the position here, where, as in Knauf, there was
a naked attempt to subvert the relevant Convention and the position in
Nussberger, where the problem lay not with the method of service of
the claim form, which was in accordance with Swiss law and the Hague
Convention , but with a failure to include a particular document. Mr
Dhillon further relies upon the statement by Lord Brown at [37] that it is
difficult to suppose that the discretion could ever be exercised "if there
had been no process of service whatsoever".
63. I would not accept those submissions but prefer the submissions
of Mr Mercer. In Knauf, as Henry LJ said at [58], the method of service
was being by-passed in order to establish jurisdiction, whereas here the
method of service was not being by-passed for that purpose, if indeed
it can fairly be said to have been or to be being by-passed at all. In
Nussberger the defect in service was a missing document, whereas here
the defect was the failure to ask for and obtain the defendant's signature,
which the defendant could scarcely have refused if it had been sought,
since he knew the contents of the documents, which were complete.
If he had refused and insisted on a fully compliant method of service
under Icelandic law, there can be no doubt that such service would have
been effected. To insist on a different method of service of the very same
documents would have been of no advantage to the defendant, since he
had all the necessary documents, which is after all the purpose of service:
see eg Barclays Bank v Hahn.
64. I should add that these views are expressed solely in the context of
a Judgment Regulation or Lugano Convention case where the English
court has jurisdiction based on the articles in one or other of them. Here
it is article 5(3) of the Lugano Convention . The position may well be
different in a non- Convention or non-Judgment Regulation case, where
permission is required to serve the proceedings out of the jurisdiction.
The court has traditionally regarded the exercise of its jurisdiction in
such a case as the exercise of an exorbitant jurisdiction: see eg The
Hagen [1908] P 189. The same is not as I see it true of a claim under
the Jurisdiction Regulation or the Lugano Convention because their
essential scheme is that, if the relevant criteria are satisfied, the claimant
is entitled to proceed in the relevant jurisdiction. Thus, while I appreciate
that service (or an order dispensing with service) is essential in every
case, the approach in the two classes of case is different. When Lawrence
Collins J said at [216] in Bas Capital Funding Corporation v Medfinco Ltd
[2004] 1 Lloyd's Rep 652 (a case which involved service in a country
which was not party to a service Convention ) that proper service is
particularly important in international cases and that he would hesitate
before ordering service by an alternative method, or dispensing with
service, he was referring to a truly international case – one outside the
scope of the Jurisdiction Regulation or the Lugano Convention .
65. In my opinion, the correct approach to adopt in a case of this kind is
that adopted by the House of Lords in Nussberger. The approach would
apply if, like Nussberger, this were a Hague Convention case: per Lord
Brown at [33] in the House of Lords and per Neuberger LJ in this court at
[108]-[111] in a passage which was not criticised in the House of Lords.
66. The approach would also apply, in my opinion, in this case even if
the Lugano Convention provided for a specific and exclusive method
of service. Whether the Convention so provides depends upon the true
construction of article IV of the First Protocol to the Lugano Convention .
I turn to consider that question, which was much debated in argument,
although, as appears below, it is not in my opinion necessary to resolve it
in order to determine this appeal.
Article IV of the First Protocol to the Lugano Convention
67. The only provision of the Lugano Convention upon which Mr Dhillon
relies or could rely is article IV of the First Protocol to the Lugano
Convention , which is in the same terms as the Protocol to the Brussels
Convention . The Protocol is described as a protocol on "certain questions
of protection, procedure and enforcement“and article IV provides as
follows:
"Judicial and extrajudicial documents drawn up in one Contracting State
which have to be served on persons in another Contracting State shall
be transmitted in accordance with the procedures laid down in the
conventions and agreements concluded between the Contracting States.
Unless the State in which service is to take place objects by declaration
to the Swiss Federal Council, such documents may also be sent by the
appropriate public officers of the State in which the document has been
drawn up directly to the appropriate public officers of the State in which
the addressee is to be found. In this case the officer of the State of origin
shall send a copy of the document to the officer of the State applied to
who is competent to forward it to the addressee. The document shall be
forwarded in the manner specified by the law of the State applied to. The
forwarding shall be recorded by a certificate sent directly to the officer of
the State of origin."
68. Mr Mercer submits that the first paragraph of article IV has no
application here because there are no " conventions and agreements
concluded between the Contracting States", since the United Kingdom
and Iceland are not both parties either to the Hague Convention or to any
other relevant bilateral treaty or convention . As to the second paragraph,
he submits that it only has application where there is a relevant
convention or agreement within the meaning of the first paragraph and
that, in any event, whether dependent upon the first paragraph or not,
the provision is permissive and not obligatory. As appears below, that is
how I would construe the article on the basis of the language used when
viewed in its context.
69. However, Mr Dhillon submits that it follows from the fact that there
is no separate agreement dealing with service of process as between
Iceland and the United Kingdom that the second paragraph of article
IV constitutes the sole "procedure laid down in“a " convention „or
"agreement“"concluded between“the United Kingdom and Iceland.
Therefore, he submits, any English process "shall be transmitted“in
accordance with the procedure in the second paragraph. I am bound to
say that that is not to my mind the natural construction of the article.
70. However, Mr Dhillon relies upon Molins at [40] and the decision of
the ECJ in Scania Finance France SA v Rockinger (Case C-522/03) [2005]
All ER (D) 146 (Oct). As to Molins, it is important to note that both the
United Kingdom and Italy were parties both to a bilateral civil procedure
convention and to the Hague Convention . Aldous LJ said at [40]:
"Once it is established, as it is, that service is required for proceedings
to be definitively pending under Italian law, then the decision as to
whether service took place depends upon whether service was effected
as required by article IV of the Protocol to the Brussels Convention . In
so far as Italian law differs it is irrelevant. The purpose of the Convention
is to achieve a legal systemisation which will give the greatest legal
certainty. It is designed to ensure recognition and enforcement within
the European Union of judgments given in courts of contracting states.
The Convention overrides national law, but does not exclude national
law where the Convention is silent on service. It provides in article IV
of the Protocol for the way in which service is to be effected, namely
"in accordance with the procedures laid down in the conventions and
agreements concluded between the contracting states". Thus, when
service is a requirement, service must be carried out in accordance with
that article and the Conventions to which I have already referred. That is
emphasised by article 27(2), which excludes from recognition judgments
not duly served, ie obtained by default without proper service. Further,
under both English and Continental legal systems service out of the
jurisdiction is regarded as an interference with sovereignty (Ferrarini SpA
Magnol Shipping Co Inc [1988] I Lloyd's Rep 238, 241) and therefore
it would be odd if service, giving seisin, could be effected except under
conditions set out in international conventions or in accordance with the
national rules of the contracting states where service is to be effected."
71. I have emphasised the words in italics because they show that this
court construed the reference "the conventions and agreements concluded
between the Contracting States“in article IV as a reference to the Hague
Convention and the bilateral treaty between the United Kingdom and
Italy and not the Brussels Convention itself. Also it seems to me to be
plain that the court did not exclude local methods of service where the
Convention is silent. As [37-38] make clear (and as discussed above),
defects in service can in principle be cured by the courts of the forum. In
these circumstances I am not persuaded that [40] of Molins assists the
construction of article IV advanced by Mr Dhillon.
72. In Scania the claimant sought to enforce a judgment of a French
court which had been obtained in default of appearance in Germany.
The defendant objected that he had not been properly served with
the proceedings. Both France and Germany were parties to the Hague
Convention . The German court referred to the ECJ the question whether
article 27(2) of the Brussels Convention and the first paragraph of
Article IV of the Protocol were to be interpreted as meaning that judicial
documents might be served on a defendant in another contracting
state only in accordance with the conventions concluded between the
contracting states. However, at [14] the ECJ restated the question thus:
"[14] By its first question the national court asks essentially whether
Article 27(2) of the Brussels Convention and the first paragraph of Article
IV of the Protocol must be interpreted as meaning that, where a relevant
international convention is applicable between the State in which the
judgment was given and the State in which enforcement is sought, the
question whether the document instituting the proceedings has been duly
served on a defendant who has failed to enter an appearance must be
determined solely in the light of the provisions of that convention , or
whether it may also be determined by reference to the national rules in
force in the State in which the judgment was given if the application of
those rules has not been excluded by the convention ."
73. It is to be noted that the ECJ was only considering the position "where
a relevant international convention is applicable between the State in
which the judgment was given and the State in which enforcement is
sought". That is not surprising because the Hague Convention was in force
as between France and Germany. The ECJ was not however considering
the different question; what the position would be if there were no such
convention or no such convention other than the Lugano Convention .
74. The ECJ observed at [17] that article 27(2) provides that a judgment
delivered in another Contracting State is not to be recognised where it
was given in default of appearance, if the defendant was not 'duly served'
with the document which instituted the proceedings in 'sufficient time'.
At [18] and [19] the ECJ underlined the point made at [56] above and
emphasised that the process must be 'duly served' within the meaning
of the convention between the states, which was of course the Hague
Convention . The ECJ then at [21-30] considered and rejected the
submission that it was open to the claimant to serve by using any of
the methods of service provided for by the national laws of the states
concerned on the basis that none of those laws was excluded by the
Convention .
75. As I read the reasoning of the ECJ, its decision to reject the
submission was based on the assumption that this was a case to which
the Hague Convention applied. On that basis paragraph one of article IV
applies because under the Hague Convention the relevant documents
had to be served on the defendant in accordance with article 15 of it.
Paragraph one is mandatory because it provides that the documents
"shall be served". As [22] of the judgment of the ECJ made clear, the
words "may also“in paragraph two show that the two methods of service,
namely that provided by paragraph one of article IV and article 15 of the
Hague Convention on the one hand and paragraph two of article IV on the
other, are exhaustive. That conclusion seems to me to be sustained by the
language of article IV.
76. The ECJ placed some reliance on article 20 of the Brussels
Convention , which was in the same terms as article 20 of the Lugano
Convention . It provides:
"Where a defendant domiciled in one Contracting State is sued in a court
of another Contracting State and does not enter an appearance, the
court shall declare of its own motion that it has no jurisdiction unless its
jurisdiction is derived from the provisions of the Convention .
The court shall stay the proceedings so long as it is not shown that
the defendant has been able to receive the document instituting the
proceedings or an equivalent document in sufficient time to enable him
to arrange for his defence, or that all necessary steps have been taken to
this end.
The provisions of the foregoing paragraph shall be replaced by those of
Article 15 of the Hague Convention of 15 November 1965 on the service
abroad of judicial and extrajudicial documents in civil or commercial
matters, if the document instituting the proceedings or notice thereof had
to be transmitted abroad in accordance with that Convention ."
77. Article 20 is of some interest in the present context. Paragraph one
does not apply because, for the reasons already given, the English court
has jurisdiction over the alleged libel published in England. No one has
suggested that the English Court was bound to stay this action under the
Convention . This is presumably because the defendant cannot satisfy the
provisions of paragraph two and because paragraph three does not apply.
He cannot satisfy paragraph two because it focuses, not on particular
rules of service, but on the broader concept that a stay is required only
so long as it is not shown that the defendant has been able to receive
the document instituting the proceedings or an equivalent document
in sufficient time to enable him to arrange for his defence, or that all
necessary steps have been taken to this end. The claimant is able to
satisfy both those requirements.
78. As to paragraph three, as already stated, it is accepted that Iceland
is not a party to the Hague Convention and it is not suggested that
the defendant can rely upon its provisions, including article 15. The
relationship between paragraphs two and three of article 20 is shown
by [23-24] of the judgment of the ECJ in Scania. They show that in a
case where the relevant states are parties to the Hague and the Lugano
Conventions , the provisions of paragraphs one and two of article IV are
exhaustive. On the other hand, they contain no suggestion that that is so
where they are not parties to the Hague or some similar convention or
bilateral treaty. Thus the ECJ's conclusion is stated at [30] as follows:
"It follows from all of the foregoing considerations that the answer to
the first question must be that Article 27(2) of the Brussels Convention
and the first paragraph of Article IV of the Protocol must be interpreted
as meaning that, where a relevant international convention is applicable
between the State in which the judgment is given and the State in which
recognition is sought, the question whether the document instituting
the proceedings was duly served must be determined in the light of the
provisions of that convention , without prejudice to the use of direct
transmission between public officers where the State in which recognition
is sought has not officially objected, in accordance with the second
paragraph of Article IV of the Protocol."
79. In the case where, as here, there is no such relevant convention ,
paragraph one of article IV can have no application. Nor, as I see it, can
paragraph two. The expression "may also“shows that paragraph two
depends upon paragraph one, so that it can have no effect in the absence
of paragraph one. Any other conclusion would be very odd.
80. The logic of the defendant's position is that, absent a specific
convention or bilateral treaty, as here, the only permissible method of
service is that provided by paragraph two. This does not seem to me to be
a sensible construction of the second paragraph for these reasons:
i) the paragraph is expressed in permissive and not mandatory terms, as
shown by the use of 'may' by contrast with 'shall' in paragraph 1;
ii) it is open to a state to object to the use of the method permitted by
paragraph two, in which event there would be no permissible method of
service under the Convention in a case, as here, where paragraph one
does not apply; and
iii) the submission gives no meaning to the word 'also'.
81. If that view is correct, as I believe it to be, there remain only two
possibilities. The first is that in the absence of a relevant convention
or bilateral agreement, each state which has jurisdiction under the
Convention is left to make its own rules, subject of course to paragraph
two of article 20, and that the second paragraph has no effect. The
second is that each state is left to make its own rules but that paragraph
2 operates as an additional method of service which the claimant can use
if he wishes.
82. In both cases the state which has jurisdiction over the claim is
permitted to make its own rules for service in another state party to the
Convention . As I read the Convention , subject to paragraph 2 of article
20, there is nothing in it to prevent the state which has jurisdiction from
making its own rules as to how the defendant in a different Convention
state is to be served with its process. Thus I see nothing to lead to the
conclusion that the methods of service provided by CPR 6.24, including
any method permitted by the law of the country in which it is to be
served, are contrary to the Convention .
83. It is not necessary to resolve the question whether paragraph two of
article IV has any effect. My primary view is that it does not because it
seems to me that the use of the words 'may also' support the proposition
that it was intended to be an additional discretionary method of service
in a case in which paragraph one applies, but not otherwise. Thus it was
intended that it should be an additional method to those permitted by the
Hague Convention or other relevant convention or bilateral agreement.
However, if, contrary to that view, paragraph 2 of article IV has any effect
in a case like this, it seems to me to be limited to permitting a method of
service which is additional to those permitted by the national law of the
state with jurisdiction. I should perhaps add that such a method would no
doubt be compatible with CPR 6.24(1)(a) because paragraph 2 provides
that the relevant document shall be forwarded by the public officer "in
the manner specified by the law of the state applied to". This is the view
expressed at paragraph 4.040 of the second edition of Layton and Mercer
on European Civil Practice.
84. The key point here is, however, that, whatever the role of paragraph
2 of article IV, the relevant national law is the law of England as the
state which has jurisdiction over the claim for libel. That law includes not
only CPR 6.24 but also CPR 6.9. There is, in my opinion, nothing in the
Convention , including article IV of the First Protocol, to invalidate rule
6.9, which gives the court power to dispense with service. Moreover, I
would accept Mr Mercer's submission that, on the facts here, to dispense
with service of the claim form does not subvert or turn the flank of
the only relevant Convention , which is the Lugano Convention . On
the contrary, such a dispensation seems to me to be consistent with
paragraph 2 of article 20 of it.
85. In all these circumstances, I would hold that article IV either has no
application to these facts or, if it does, that it is not mandatory and is not
therefore relevant to the determination of this appeal. If, contrary to that
view, the claimant was bound to serve the proceedings in accordance
with the second paragraph of article IV, that fact does not invalidate rule
6.9 for the reasons given above. It follows that my consideration of the
international perspective has not persuaded me that the judge was wrong
to exercise his discretion as he did.
86. I would only add this by way of postscript. There has been some
discussion on the question whether, in the events that have happened
there has been 'service' within the meaning of article 27(2) of the Lugano
Convention. Mr Mercer submits that there has. He relies upon Klomps v
Michel [1981] ECR 1595 and submits that, in the light of article 20, the
concept of 'service' in article 27(2) is wider than the concept of service
which would satisfy national law. Mr Dhillon submits the contrary. Both
parties rely upon Lancray SA v Peters und Sickert KG [1990] ECR I-2725.
Mr Dhillon further submits that that it is not open to the court now to
hold that there has been service of the claim form within the meaning of
CPR 6.24 because the court has declared that there has not, to which it
may be said that the questions in the future might be different, including
the questions whether the concept of 'service' in article 27(2) is different
from the concept of service in CPR 6.24, what is the role of the court in
which judgment is given in the curing of defects in service and what is the
role of the court in a jurisdiction in which any judgment is sought to be
enforced.
87. It is not necessary finally to determine any of these questions for
the purposes of determining this appeal. It is not clear what part the
defendant will play in these proceedings in the future. He has at some
stages indicated that he would wish to defend the case by pleas of
justification and reliance upon Reynolds qualified privilege. It is thus not
clear what, if any, judgment may be obtained against him. In particular
it is not clear whether any such judgment would be a judgment 'in
default of appearance' or not and it is not clear whether or how any such
judgment might be enforceable. The whole dispute may even be settled.
I would only add that it seems to me, for the reasons given earlier, that
the defendant was "duly served“with the document which instituted the
proceedings within the meaning or article 27(2) of the Convention.
CONCLUSION
88. Whatever the answers to those questions, for the reasons I have
given, I have reached the conclusion that the judge was entitled to
exercise his discretion under CPR 6.9 to dispense with service of the claim
form. It follows that I would dismiss the appeal.