Alternative service of a claim form with a Hague Convention country

In Abela v Baadarani (see Weekly Update 24/13), the Supreme Court made an order under CPR r6.15(2) providing that steps already taken to bring the claim form to the attention of the defendant by an alternative method amounted to good service. In that case, Lord Clarke had suggested that orders permitting alternative service “are not unusual” in cases not involving a bilateral service treaty or the Hague Convention. This in turn appeared to suggest that the situation might be different (and an order under CPR r6.15(2) less likely) in a bilateral service treaty or Hague Convention case.

Although not required to decide the point in this case, Longmore LJ said that “although the Supreme Court pointed out that nothing they said would necessarily apply to Hague Convention cases, it would be surprising if there could never be good reason for alternative service in such cases. I do not read the decision of Cooke J in Deutsche Bank AG v Sebastian Holdings [see Weekly Update 05/14] as so deciding”. 

On the facts of the case he went on to comment that “it would be surprising if a judge, who was prepared to hold that the application of a foreign limitation period had caused undue hardship to a claimant, were to hold that there was not good reason retrospectively to validate alternative service in England on a firm of solicitors which was already conducting the mirror image of the proceedings in England, at least if an application for alternative service were brought at the appropriate time”.