Court of Appeal clarifies: alternative service available for service out of jurisdiction

There has been a string of recent cases considering the possibility of effecting service out of the jurisdiction by alternative means.

The upshot of this case law is that although it is possible to obtain an order for alternative service against a foreign defendant, such an order will only be given in special and fairly narrow circumstances.  However, where it can be shown that service using the normal methods would take too long and would prejudice the proceedings through no fault of the claimant, for example due to the involvement of other defendants who have already been served, this may justify an order for alternative service. Pamela Kiesselbach comments.

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When serving proceedings out of the jurisdiction, such proceedings need to be served in accordance with relevant bi-lateral or multi-lateral conventions or treaties relating to the service abroad of judicial documents or in accordance with the local laws of the receiving country (CPR 6.40).  The most important inter-governmental agreements on service are the EU Service Regulation and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Service under the Hague Convention can often be time consuming where service has to be effected through judicial channels involving the judicial authorities from both the transmitting and the receiving states.  The question has therefore arisen in a number of recent cases whether the English courts have the power to order service by alternative means, for example by ordering that service may be effected on the English solicitor of the foreign party (despite the fact that the solicitor does not have instructions to accept service) or on the foreign party by electronic means.

Until recently there have been doubts as to whether the English courts had such jurisdiction in cases where proceedings needed to be served outside the jurisdiction.

However recent Court of Appeal decisions in Bayat Telephone Systems International Inc and others v Lord Cecil and others [2011] EWCA Civ 135 and Abela and others v Baadarani [2011] EWCA Civ 1571 have now confirmed that the English courts have the power to make an order for alternative service pursuant to CPR 6.15(1) and also to make such an order with retrospective effect pursuant to CPR 6.15(2).  The Court of Appeal decision in Bayat was relied upon by the High Court in Bacon v Automattic Inc and others [2011] EWHC 1072 (QB) and JSC BTA Bank v Ablyazov and others [2011] EWHC 2988 (Comm).

The decision in Bayat, which dealt with the issue obiter, related to an application to allow for service on US and Afghan defendants, amongst other methods, by e-mail which was not a method allowed under the Hague Convention (in the case of the US defendants) or Afghan local laws (there is no service treaty with Afghanistan). The Court of Appeal held (obiter) that service by alternative means could be ordered in special circumstances relating either to the defendant or the proceedings; for example where it can be shown that the defendant is likely to seek to avoid service in accordance with the normal methods or service is required in the context of an urgent injunction. The general requirement for speed will often not be sufficient to justify an order for alternative service, in particular where the alternative method of service is to be effected within the receiving state as this would be seen as an unacceptable interference with the sovereignty of that state.

The decision in Abela related to an application to validate retrospectively the alternative service of the proceedings on the defendant's Lebanese lawyers in Lebanon. The original order giving permission to serve out had stipulated that service was to be by way of personal service on the defendant at the defendant's address, which was a method permissible under Lebanese law. However, the claimant served the proceedings on the defendant's Lebanese lawyer who asserted that he did not have authority to accept service. The Court of Appeal confirmed that it had jurisdiction to order, or to retrospectively validate, alternative service outside of the jurisdiction. However, it repeated that such an order should be regarded as exceptional and that it was usually inappropriate to validate retrospectively a form of service which was not authorised by an order when it was effected (as was the case here) and was not good service by local law. As the service on the Lebanese lawyers was considered to be invalid under local law, the Court of Appeal overturned the decision of the judge at first instance and refused to validate service retrospectively in accordance with CPR 6.15(2).