Service: retrospective validation of the claim form permitted and receipt by fax sufficient for French courts to be seised

by Amy Vincent

Service of the claim form outside the jurisdiction can be difficult, particularly for claimants having to deal with overseas defendants determined to avoid service. The Supreme Court decision in Abela and others -v- Baadarani¹ is therefore welcome.

Here the claimants needed to serve the claim form in Lebanon. They encountered difficulties serving the documents at the defendant's Lebanon address and so delivered the claim form to the defendant's lawyers' office in Lebanon. The defendant's lawyers returned the claim form and stated they were not authorised to accept service. In addition, the Lebanon address was incorrect, but they refused to provide the correct address. The claimant successfully applied for an order confirming that the steps already taken amounted to good service and permitting them to serve by alternative means on the defendant's solicitors. The defendant applied to set aside the orders and the issue eventually came before the Supreme Court.

The Supreme Court found that CPR 6.15(2) can be used to retrospectively validate alternative service outside the jurisdiction. In reaching their decision the Court took into account the fact that the proceedings had been brought to the defendant's attention, the defendant's conduct in avoiding service, and the practical realities of serving abroad where there are no Conventions in place and it may be unclear how to effect service according to local law.

Arbuthnot Latham & Co Ltd -v- M3 Marine Ltd and another² concerned the familiar issue of which Member State court was seised first: England or France? The issue for the Court was whether receipt by fax alone of the French writ was sufficient for the French courts to be seised from that date under the Brussels Regulation (Article 30), or whether receipt by fax and post was required. The Court held that receipt by fax sufficed and the English proceedings were stayed. There was no double requirement for transmission to the Foreign Process Service by post and fax. From a practical perspective, this means that documents to be served on parties in England and Wales can be sent by fax alone to the Foreign Process Section, as the designated receiving agency, under the EU Service Regulation, who will then effect service.

Abela and others -v- Baadarani: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0023_Judgment.pdf

Arbuthnot Lathan & Co Ltd -v- M3 Marine Ltd and another: http://www.bailii.org/ew/cases/EWHC/Comm/2013/1019.html

Please click on the links below for the other articles in the commercial litigation newsletter

• Jackson update
• Hot-tub: lessons from Australia
• The importance of clarity when it comes to the terms of, and costs associated with, settlement
• Third party funder entitled to terminate funding agreement
• Asymmetric jurisdiction clauses valid as a matter of English law
• Disclosure and privilege update: increasing transparency and guidance on the dominant purpose test
• Can the corporate veil ever be pierced?
• Part 36: valid acceptance and "near-miss” offers
• CPR 66th update
• Chancery Modernisation Review
• Collective actions update: "opt-out" coming to a competition claim near you
• Judicial Review: reforms made and more to come
• Courts to become self-financing?

_Notes:

_{¹ [2013] UKSC 44.}

_{² [2013] EWHC 1019 (Comm).}