In Phillips & Anor (Suing As Administrators of The Estate of Christo Michailidis) v Symes & Ors – Lawtel 23.1.08 the Claimant issued proceedings against the first respondent Swiss national and the second respondent Swiss company. Service of the proceedings was attempted in accordance with the Hague Convention 1965. The documents were served on the Swiss national in Switzerland except the English version of the claim form which had been removed from the package of documents by a Swiss official because it was erroneously marked "not for service out of the jurisdiction". No documents were served on the Swiss company because of an error by the Swiss post office. The Defendants issued proceedings in Switzerland claiming negative declaratory relief.
The Claimant obtained from the English court orders dispensing with service of the claim form on the Defendants pursuant to CPR r.6.9 and declaring that the High Court had become seised of the proceedings before the issue of the Swiss proceedings.
The House of Lords had to determine whether it was appropriate to make such an order. It found on the facts set out above that the court should exercise its power under CPR r3.10 (b) to rectify matters where there had been an error of procedure, and order that the respondents were to be regarded as properly served, certainly for the purposes of seisin.
In making the order pursuant to r.6.9, the judge at first instance was not thereby declaring valid and effective service which had previously been ineffective; rather he was holding the previous service to have been valid and declaring that it was unnecessary to have served the English language claim form to make it so. Even if a dispensing order under r.6.9 was properly to be regarded as retrospectively validating what would otherwise have been ineffective service, it would have been within the court's power to make such an order even if its effect would then be to alter the jurisdictional precedence under an international Convention. The question of seisin being purely one for the national court, an English court, applying its own procedural rules to dispense with service of a particular document, could make an order which was effective retrospectively to validate what would otherwise have been an invalid form of service. In the exceptional circumstances the court should exercise its discretion to make an order under r.6.9. The respondents plainly suffered no prejudice and the errors were those of the Swiss authorities.