Case Alert - [2018] EWHC 384 (Ch)

Court allows service by alternative method in place of service in Turkey

The judge in this case made an order allowing service on the defendants' London solicitors pursuant to CPR r6.15 (service of the claim form by an alternative method or at an alternative place). In so doing, he made the following general points:

(1) CPR r6.15 refers to the service of a claim form. However, the judge held that the rule also applies to an application made before action (this case involved an application pre-action to join new parties).

(2) CPR r6.15(1) allows the court to make an order for service by an alternative method where there is "a good reason". In Abela v Baadarani, the Supreme Court held that CPR r6.15 applies to service within the jurisdiction and service out of the jurisdiction (although Lord Clarke appeared to suggest that it may be less easy to obtain an order under CPR r6.15 where the claim form is to be served in a country which is a signatory to a service treaty/convention to which the UK is also a signatory). In this case, the Hague Convention applied and, following a review of prior (and conflicting) caselaw, the judge characterised the position as follows: "in my view there is some difference of emphasis in the authorities between, on the one hand, those which incline towards the language of exceptional or special circumstances, and, on the other hand, those which incline towards the language of good reason, while nevertheless emphasising that the test as to what amounts to good reason is or may well be more stringent in a Hague Convention or other bilateral treaty case".

The judge concluded that CPR r6.15 should be read without any gloss and that a "good reason" is what is required: "I am doubtful that it is right to say that a good reason envisages a need for exceptional or special circumstances, at least as those requirements are generally understood in other contexts. .. I consider that the invocation of the rule certainly requires a clear foundation in a case where the Hague Convention applies, and the more restrictive the relevant contracting state has been in what it regards as appropriate to permit by way of service, the more cogent the reason would have to be for it to amount to a "good reason" for alternative service within the meaning of CPR 6.15. It may be sufficient to say that "good reason" means good reason in all the circumstances of the particular case, and that the circumstances include matters like that".

In this case, it was not a good reason that it would take 5 months or longer to go down the Hague Convention route. However, the judge decided to make the order because the proceedings related to allegations of wrongdoing against the Turkish government and he believed that there was a real risk that service would never take place, or be significantly delayed, via the Hague Convention route.