A decision of the High Court has highlighted a trap for the unwary when serving proceedings in another EU member state: it is not sufficient to serve proceedings in a way that would be valid for service of proceedings begun in that state; service must instead comply with the provisions in the EU Service Regulation (Regulation (EC) No 1393/2007), including any reservations notified to the European Commission by that state: Asefa Yesuf & ors v A.P.Moller & ors [2016] EWHC 1437 (Admlty).

Personal service of English proceedings in Denmark by the claimant's solicitor was therefore not good service as the Service Regulation only allowed personal service of proceedings from another member state by a Danish judicial officer. The court moreover had no power under the CPR to dispense with service or permit service by an alternative method, save possibly where there was a minor procedural error in serving by a method permitted by the Service Regulation.

The message therefore is clear: service in the EU must be carried out in accordance with the provisions in the Service Regulation, at any event while we remain a member of the EU and subject to the terms of the Regulation.

Background

The claim involved a dispute between cargo owners and ship owners over whether the ship owners were entitled to discharge a cargo as being prone to self-ignition and therefore dangerous.

The bills of lading contained a one year limitation period. The day before the year expired, the cargo owners commenced English proceedings. Some three and a half months later, the ship owners told them in a telephone call that they had no English lawyers on whom service could be effected and service would therefore have to take place in Denmark. Almost two months later, some three weeks before the six month period for service out of the jurisdiction expired, the cargo owners' English solicitor travelled to Copenhagen and purported to serve the proceedings at the ship owners' head office.

The ship owners challenged the jurisdiction of the English courts on the basis that the proceedings had not been validly served on them. The cargo owners resisted the application, arguing that the proceedings had been validly served; alternatively if there were any errors, they were minor procedural errors and the court had the power to remedy them under one or more of CPR 6.15, CPR 6.16 and CPR 3.10.

CPR 6.15 gives the court the power to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method are good service, provided good reason is shown. CPR 6.16 permits the court to dispense with service of a claim form in exceptional circumstances and CPR 3.10 gives the court the power to rectify matters where there has been an error of procedure.

Decision

The High Court (Simon Bryan QC sitting as a deputy judge) held that the Service Regulation applied and the proceedings had not been validly served under it.

He observed that the Service Regulation is an exhaustive and mandatory regime and provides the only permissible methods for serving English proceedings in the EU (Alder v Orlowska C-325/11). This is unfortunately not made clear in CPR 6.40(3); that rule suggests, wrongly, that service in accordance with the Service Regulation is just one possible method of service.

The only method of service under the Service Regulation that can be performed by an individual or his/her legal representative is direct service in accordance with Article 15, which provides:

"Any person interested in a judicial proceeding may effect service of judicial documents directly through the judicial officers, officials or other competent persons of the member state addressed, where such direct service is permitted under the law of that member state."

Denmark had notified the European Commission that it permitted direct service through a bailiff under Article 15. Service by an English solicitor, or indeed a Danish solicitor, was therefore not permitted and it was irrelevant that Danish proceedings could be served in Denmark in this way.

The deputy judge went on to hold that this was not an example of a permissible method of service carried out poorly but rather this was an impermissible method of service. That meant, in his view, that there could be no exercise of discretion under any CPR rule to permit an alternative method of service.

In any event, the judge did not think the CPR provisions assisted the cargo owners on the facts of the case. There was no good reason within CPR 6.15 to validate the steps taken to serve. Whilst the documents had come to the attention of the ship owners and this was an important consideration, that was not enough in itself, particularly given that proceedings were commenced just before limitation expired and the first and only attempt at service was more than five months after issue. It was also relevant that the ship owners had not tried to evade service or be obstructive.

There were also no exceptional circumstances (a higher test than under CPR 6.15) which would allow the court to dispense with service under CPR 6.16.

As for CPR 3.10, general provisions do not derogate from specific provisions so no order could be made under CPR 3.10 in circumstances where the requirements of CPR 6.15 or 6.16 were not met. In any event, even on the cargo owners' case, this provision would only apply if what had happened was a permissible method of service carried out poorly, which it was not. Even if that were wrong, this was not an appropriate case to make an order under CPR 3.10 when what was done was in effect too little too late.