In our December update we discussed an English High Court decision that allowed service of proceedings on a Russian resident individual at our offices in London, circumventing the provisions of the Hague Service Convention.

Since then, we sought and obtained permission to appeal the decision. The appeal has now taken place and judgment has been granted (Marashen Ltd v Kenvett Ltd [2017] EWHC 1706 (Ch)). The appeal judgment overturns the decision of the Master to allow service by an alternative method in England (instead of requiring service under the Hague Service Convention in Russia). The judge confirmed that power to serve proceedings by an alternative method within England and Wales in respect of a defendant who was resident outside the jurisdiction derived from the Civil Procedure Rules (rule 6.37(5)(b)(i)), and was permissible only if the court had already made an order for service outside the jurisdiction.

The judgment

The appeal judge determined that the reasons for allowing service by an alternative method in this case were not sufficiently exceptional and that the Master had not properly applied the test. Delay alone does not constitute grounds enough to allow service by an alternative method.

Equally, the expense involved in serving in accordance with the Hague Service Convention cannot, without more, constitute “exceptional circumstances”. Factors going beyond mere delay or expense, which meet the “exceptional” requirement for a CPR 6.15 order, need to be shown before such an order will be granted.

Further, the judge concluded that the Hague Service Convention applies to the service of all judicial documents and the fact that the judicial document in question is an application for a section 51 order cannot itself meet the exceptionality requirement in an Hague Service Convention case. The hybrid character of a section 51 application and the fact that the application is generally made against someone with close prior contact within the prior proceedings might be relevant to the court’s determination of whether a CPR 6.15 order can be made in an Hague Service Convention case, where the application depended heavily on evidence given before the trial judge, but this was not the case here.

The court also considered the effect of Article 15 of the Hague Service Convention in offering claimants a safety mechanism that protects them from excessive delay or ineffective service abroad. The judge accepted that the effect of Article 15 is that, if the claimant had sought to effect service under the Hague Service Convention, whilst at the same time taking steps to bring the section 51 application to the attention of the third party otherwise than by service, it would be open to it to apply to the court for judgment once a period of six months had elapsed from transmission.

A significant decision

This is an significant decision in that it clarifies that, where there is an international service convention in place, it should be complied with unless there are exceptional circumstances. “Mere delay” will not be enough.