http://www.bailii.org/ew/cases/EWCA/Civ/2016/71.html

CPR r6.15(2) provides that the court can order that steps already taken to bring the claim form to the attention of the defendant by an alternative method amounts to good service. In this case, after attempts to serve via diplomatic channels proved ineffective, the defendant was served at its premises in Saudi Arabia, and a legal adviser signed for the documents. This was not a method prohibited under Saudi law. No response pack was served with the claim form.

When no acknowledgment of service was received, the claimant applied to court and obtained a declaration under CPR r6.15 that the defendant had been validly served. At the same time, the judge ordered that judgment in default be entered. Flaux J subsequently refused to set aside that default judgment and a further appeal was made to the Court of Appeal.

The Court of Appeal has now allowed that appeal. The unanimous ground for allowing the appeal was that the defendant did have an arguable defence, and so default judgment should not have been entered for that reason. However, there was disagreement about whether or not a default judgment could be given at the same time as the order retrospectively validating service.

McCombe LJ and Treacy LJ agreed that the defendant was under no obligation to take any steps until the order validating service had been made. CPR r6.15(4)(c) provides that the order validating service "must" specify the period for filing an acknowledgment of service. CPR r12.3 further provides that default judgment may be obtained only if the relevant time for filing the acknowledgment for service has expired and it was held that the relevant time was the time specified in the order: "Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment". The lack of a response pack should also have been taken into account when the judge exercised his discretion.

Longmore LJ disagreed with this view though. He held that, since no sanction was provided for under CPR r6.15(4)(c), the default judgment should not be set aside "as of right" where no time for filing the acknowledgment of service was given. He also disputed that there was an absolute bar to ordering default judgment and retrospective service at the same time. He further found that the absence of a response pack was not a good reason for the court exercising its discretion to set aside the default judgment: the defendant here had clearly known about the claim and was already in contact with his legal advisers about it.