The procedure for serving English proceedings on a foreign State under s12 State Immunity Act 1978 (SIA 1978) has been helpfully clarified. Where a claimant has to rely on the Foreign and Commonwealth Office (FCO) to effect service on the foreign Ministry of Foreign Affairs of that State, the High Court has held that potential options for effecting such service include service via delivery by courier. The court held that service had been effected when the documents were received by the Syrian Ministry of Foreign Affairs (SMFA) in Damascus even though Ministry representatives refused to accept the delivery on the basis documents “were not needed”. Notwithstanding this useful clarification, when contracting with a State commercial parties should keep in mind that the inclusion of a process agent provision is prudent. Such a contractual provision will reduce the risk that service will need to be effected via the FCO on the foreign State’s Ministry of Foreign Affairs: Certain Underwriters et al v Syrian Arab Republic et al [2018] EWHC 385 (Comm), 1 March 2018

There are specific requirements set out at s12 SIA 1978 for service of English proceedings on a foreign State. Subject to one exception, s12 requires the proceedings to be served by “being transmitted through the [FCO] to the Ministry of Foreign Affairs of the State”. The SIA 1978 requires that the documents are “transmitted” to the Ministry. Service is deemed to have been effected when the proceedings are received at the foreign State’s Ministry. CPR 6.44 requires a party wishing to serve a claim form on a State to file it in the Central Office of the Royal Courts of Justice with a request for service to be arranged by the FCO.

The exception to this rule is where there is a contractually agreed method of service, most commonly via the appointment of a process agent.

Transmission of documents under SIA 1978

In this case, the claimants tried to serve an English claim form (seeking to enforce a U.S. judgment) on the Syrian Arab Republic (Syria), in accordance with the requirements of the SIA 1978. The claimants asked the FCO to serve the documents on Syria, and the FCO instructed a courier company to deliver the documents to the SMFA in Damascus. The courier attempted delivery but the SMFA officials refused to accept the documents. According to a letter from the FCO, SMFA officials were apparently aware that the documents had been sent by the FCO but insisted the courier remove the documents from the premises. The FCO also indicated that the courier had said it would not be able to leave documents on the street outside the SMFA for staff welfare reasons.

Various other steps were taken to bring the proceedings to the Defendants’ attention.

The claimants asked the Court to order that service had been effected, or alternatively dispense with the need for service.

Andrew Henshaw QC (sitting as a High Court Judge) held that service under s12 SIA 1978 had been completed despite the fact that the SMFA had refused to accept the documents from the courier, on the basis that the documents had been “received” at the Ministry for the purposes of s12. The Court relied on the Oxford English Dictionary definition of “receipt” and found it likely that the word “received” is intended, at least, to indicate that it is not sufficient merely for documents to be transmitted in the sense of being dispatched: they must actually reach the relevant Ministry.

The court also referred to the judgment of Teare J in EIB v Syrian Arab Republic [2018] EWHC 181 (Comm), in which it was held that service on Syria was achieved when the FCO sent the documents to SMFA’s email address and no undeliverable notification had been received indicating that the email had been received in the electronic repository or server.

The court held that while s12 required the documents to reach the relevant Ministry, it did not require the documents to be accepted upon delivery. No further steps could have been taken or needed to have been taken to effect service and, accordingly, service under s12 was complete when the courier proffered the package to the SMFA.

Dispensing with service

The court went on to consider the claimants’ fall back position. It concluded that if it were wrong in its conclusion that service had been effected, it would nevertheless permit service in this case to be dispensed with on the grounds that there were exceptional circumstances given the withdrawal of UK diplomatic personnel from Syria, the SMFA’s refusal to accept delivery, and the fact that there was no further step the claimants or the FCO could reasonably take. Mr Henshaw QC found that if, exceptionally, the court makes an order dispensing with service of the claim form instituting the proceedings, then it is not a document “required to be served” within s12 and an order dispensing with service was therefore not inconsistent with the requirements of s12 of the SIA 1978.

The judgment also addresses the requirements for enforcement of a foreign (U.S.) judgment but this summary does not deal with those issues.

Comment

The facts relating to service in this case were notable. The court found the proceedings were not merely transmitted to the SMFA but also arrived within the SMFA’s premises in a manner such that they were "received" by the SFMA. The fact that the courier was turned away by the SFMA’s representative and the representative refused to take the package into his hands did not prevent it from having been “received” at the SMFA for the purposes of s12 of the SIA 1978.

The court’s decision has clarified the requirements of s12 SIA 1978 in the context of delivery by the FCO of documents required to be served to initiate English proceedings. The judgment confirms that the FCO can serve a State’s Ministry of Foreign Affairs in a number of different ways and, to the extent that the Ministry refuses to accept delivery of a courier’s package, the court’s judgment that such service can be effective as the documents had been “received” under s12 is helpful. This decision may assist prospective claimants contemplating litigation in the English courts against foreign States in circumstances where they do not have the benefit of a contractual process agent provision (or service on a process agent is not an option).