Alternative method of service and service out of the jurisdiction issues
Case Alert -  EWHC 1706 (Ch)
The claimant sought to serve an application for a costs order against a non-party, that non-party being resident outside the jurisdiction (in Russia). The Hague Service Convention applies to service in Russia. The claimant obtained permission to serve by an alternative method (namely, within the jurisdiction on the defendant's former solicitors) and the Master did not find it necessary to also give permission to serve out of the jurisdiction. The appeal from that decision has now been allowed.
Foxton QC held that the power to permit service by an alternative method (pursuant to CPR r6.15) only arises if the courts has first given permission to serve out of the jurisdiction, even if the alternative method involves service within the jurisdiction. It is not enough that the court would have been prepared to order service out of the jurisdiction. CPR r6.15 cannot itself provide a freestanding foundation for jurisdiction.
The judge went on to follow earlier caselaw to find that an order for alternative service within the jurisdiction does not breach the Hague Service Convention. The issue was then whether an alternative method against a defendant resident in a Hague Service Convention country should only be made in an "exceptional" case. In Abela v Baadarani, Lord Clarke appeared to suggest that it may be less easy to obtain an order under CPR r6.15 where the country where the claim form is to be served is a signatory to a service treaty/convention to which the UK is also a signatory, and may be permitted in special circumstances only. However, Lord Sumption was of the opinion that an order under CPR r6.15 should not be seen as exceptional even where there is a relevant treaty/convention.
In this case, the judge (citing other decisions) held that for service involving a Hague Service Convention country or a bilateral service treaty, "exceptional circumstances", rather than merely good reason, must be shown before an order for alternative service, other than in accordance with the terms of the treaty, can be made. Mere delay or expense in serving in accordance with the treaty cannot, without more, constitute "exceptional circumstances": "I say “without more” because delay might be the cause of some other form of litigation prejudice, or be of such exceptional length as to be incompatible with the due administration of justice". The judge also held that the Supreme Court in Abela had taken care to make it clear that it was not addressing the use of CPR r6.15 in a service treaty/convention context.
Addressing the issue anew, the judge gave permission to serve out but also declined to make a fresh order for service by an alternative method under CPR r6.15. It was held that the fact that this was an application for a non-party costs order made no difference in itself, as the Hague Service Convention applies to service of all judicial documents. Furthermore, the judge did not think that evidence that service might take up to 12 to 18 months in Russia "rises beyond the level of mere delay".
COMMENT: The decision in this case might be contrasted with Bill Kenwright v Flash Entertainment , in which the risk of serious delay was held to justify an order by alternative method, and it was said that although the existence of a treaty is something which the court should take into account, "the matter is not immutable". However, that case was distinguished here on the basis that the relevant treaty permitted service by a "particular method desired by the requesting party" and there was no similar provision in the Hague Service Convention.