With the potential repeal of the EU Service Regulation, parties to litigation in the EU may need to consider other ways to serve legal proceedings abroad. The main treaty in place is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters – the Hague Service Convention.
While it has a wide reach (from Venezuela to Vietnam – via the EU, the US and many more countries in between), legal practitioners often avoid using it where an alternative is available because of its reputation as slow. The recent decision of the Commercial Court in Punjab National Bank v Boris Shipping & Ors, however, highlights the risks involved in trying to circumvent (for the sake of speed) the rules on service under the Hague Convention.
Punjab NB provided overdraft facilities to two offshore companies, Boris and Jarc. The facilities were supported by personal guarantees and those guarantors were based in India. The facilities were not repaid when due, and the guarantors also failed to make payment. Punjab NB brought its claim against eight defendants: Boris, Jarc and all the personal guarantors.
The guarantees provided for the irrevocable appointment of an agent for service of process within the jurisdiction. Punjab NB, however, elected not to affect service within the jurisdiction on the agent, and instead to serve the claim forms on all the defendants under the Hague Service Convention.
By the time of the Summary Judgment hearing (to which this decision relates), the status of the service of the claim forms was as follows: 1) Boris and Jarc had acknowledged service contesting jurisdiction – but not made an application in time; 2) the Foreign Process Section had confirmed that service had been effected on the 5th to 7th defendants under the Hague Convention (and they had failed to file acknowledgments of service in time); and 3) no confirmation had been received regarding the other defendants. To put matters into context, the claim forms had been received by the Foreign Process Section approximately a year ago.
Default or summary judgment?
Default judgment was an option against four of the defendants. For reasons of enforceability in India, however, Punjab NB elected not to pursue an application for default judgment and instead sought to obtain summary judgment against the defendants.
Unfortunately, in order to make the summary judgment application, Punjab NB determined (rightly, in the judge's view) that the application notice was a "judicial document" to which the Hague Service Convention would also apply. Given the lengthy (and partially unsuccessful) process of serving the claim forms, Punjab NB sought (and obtained) an order for service by alternative means under CPR 6.15.
Exceptional circumstances under the Hague Service Convention
The order for alternative service was obtained on paper only, and the judge's attention was not drawn to case law dealing with the interplay between orders for alternative service and the Hague Service Convention. That provides, in essence, that where (as here) a contracting state has indicated that it is opposed to service otherwise than through its designated authority (i.e. it objects to service by post or other approved means), it will only be in exceptional circumstances that the English courts should override that.
At the summary judgment hearing, the court concluded that there were no such exceptional circumstances and that the order for alternative service should not have been made. The order was overturned. As the court decided the summary judgment application had not been validly served, it was not granted. The court also declined to retrospectively validate the order for exceptional circumstances because it concluded there still were none.
In Societe Generale v Goldas & Ors (affirmed on appeal), it was held that "where service abroad is the subject matter of the Hague Convention or a bilateral treaty, it will not normally be a good reason for relief under CPR 6.15 or 6.16 that complying with the formalities of service so required will take additional time and cost". In particular, the court concluded that: "as a matter of comity the English Court should not lightly treat service by a method to which the foreign country has objected under mutual assistance treaty arrangements as sufficient."
In this case, the claimant sought to argue that the position was exceptional for a number of reasons: 1) because it could already have obtained (for some of the defendants) default judgment; 2) because (some of) the defendants had agreed to service by an alternate method (the agent within the jurisdiction); and 3) because some of the defendants had engaged in settlement discussions and most of them were out of time to challenge jurisdiction.
The court rejected all these arguments. It concluded they were simply not relevant to the question of service under the Hague Service Convention. In that respect, it is important to recognise that the Convention itself provides a remedy under Article 15, where service has not been effected despite a sufficient period of time (at least 6 months) elapsing. The judge did therefore find that notwithstanding any formal confirmation of service against defendants 3, 4 and 8, that those defendants had been served and that the claimant could now seek summary judgment against them.
In concluding that the summary judgment application itself had not yet been validly served, the court highlighted that it was open to the claimant to choose to now serve it on the agent appointed within the jurisdiction.
One of the key ways to "Brexit-proof" contracts with EU counterparties is to consider appointing an agent for service of process. The reason for such an appointment is to avoid exactly this scenario. Without a means of serving process within the jurisdiction, not only does the claim form have to be served under the Hague Service Convention, but every application made in the proceedings may also require the same process. This can be time-consuming and costly but this judgment shows that time, cost and inconvenience are not good enough reasons to avoid it.