Alliance Automotive Procurement Limited v Auto Zatoka Spolka Z Ograniczona Odpowiedzialnoscia [2025] EWHC 1697 (Ch)

“[16.] The first point to be made is that it cannot be enough that Mr Barton’s mode of service successfully brought the claim form to the attention of Berrymans. As Lord Clarke pointed out in Abela v Baadarani, this is likely to be a necessary condition for an order under CPR rule 6.15, but it is not a sufficient one. Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period, as they do in this case. Time stops running for limitation purposes when the claim form is issued. The period of validity of the claim form is therefore equivalent to an extension of the limitation period before the proceedings can effectively begin. It is important that there should be a finite limit on that extension. An order under CPR rule 6.15 necessarily has the effect of further extending it. For these reasons it has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwise any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process.”

“[28.] While I would not wish in any way to depart from Lord Clarke’s dictum in the Abela case that the most important purpose of service is to ensure that the contents of the claim form (or other originating document) are brought to the attention of the person to be served, there is a second important general purpose. That is to notify the recipient that the claim has not merely been formulated but actually commenced as against the relevant defendant, and upon a particular day. In other words it is important that the communication of the contents of the document is by way of service, rather than, for example, just for information. This is because service is that which engages the court’s jurisdiction over the recipient, and because important time consequences flow from the date of service, such as the stopping of the running of limitation periods and the starting of the running of time for the recipient’s response, failing which the claimant may in appropriate cases obtain default judgment.”

“[52.] In only one reported case has CPR 6.9 been considered in the context of service outside the jurisdiction. That is the decision of Lawrence Collins J. in Bas Capital Funding Corporation [2004] 1 Lloyd's Rep 652 . In that case, leave having been given to serve English proceedings in Malta, the claim form and particulars of claim were faxed and emailed and delivered by hand at the registered offices of the company and at the private address of the owner and a director of the company. All these methods were ineffective as service under English law or Maltese law. Upon an application by the claimant to dispense with service under CPR 6.9 Lawrence Collins J., having referred to Knauf UK v. British Gypsum Ltd [2002] 1 WLR 907, observed at p674–675: “By CPR 6.9 the court may dispense with service of a document. The power under CPR 6.9 can be exercised retrospectively, but only in exceptional circumstances: Anderton v. Clwyd CC (No.2) [2002] 1 WLR 3174, 3195. The Court of Appeal distinguished the case where the claimant had not even attempted to serve a claim form in time, with the case where the claimant had made an ineffective attempt to serve, and where the defendant did not dispute that he or his legal adviser had in fact received and had his attention drawn to the claim form by a permitted method of service. In the latter case the claimant does not need to serve the claim form in order to bring it to his attention, but he has failed to comply with rules for service. The basis of the application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document which has already come into his hands. But in the present case there has been no valid service either by Maltese law or by English law. Service by post was not attempted. The service by facsimile and email was not effective because the defendants had not previously indicated in writing that they were willing to accept service by facsimile or by e-mail: see CPR 6PD 3.1 and 3.3. Nor was there service under CPR 6.4, which provides that personal service on a company or corporation takes place by leaving it with a person holding a senior position within the company or corporation; nor under CPR 6.5(6), which only applies to documents left with a foreign company at a place where the corporation carries on its activities within the jurisdiction. The claimants accept that the claim form has not been formally served on the defendants in accordance with Maltese law as required by CPR 6.24. But they say that the defendants have: (a) had informal service of the claim form well within the 4 month period for service; (b) received copies of all the relevant documents; (b) instructed English solicitors; and (c) taken an active part in the proceedings. Any defendant, acting sensibly and in accordance with the overriding objective, would — on receipt of the relevant documents well within the four month period and having instructed English solicitors — have waived the need for formal service or would have instructed their English solicitors to accept service in the jurisdiction.” and at 682 he concluded his judgment thus: “At the time of the hearing of this matter service had not been effected in Malta, although of course the Company, and its Board of Administration, have had the documents since at the latest June 9, 2003. It is true that a defendant is fully entitled to insist on proper service. Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service. But I would hope that, on mature reflection, Mr Tabona would not be advised to take any purely technical point on service.” [53.] He then adjourned determination of the application of CPR 6.9 by which time proper service could be effectively carried out or the defendant could have withdrawn objection to defective service. [54.] In Knauf UK v. British Gypsum Ltd , supra, the relevant issue was whether an order should have been made under CPR 6.8 to permit service on German defendants' solicitors in England where, under the Hague Convention and the Anglo-German bilateral treaty, it was impermissible to serve the defendant in Germany by post, so that much time would be saved by service on the solicitors in England. At p921 Henry LJ. giving the judgment of the Court observed: “It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a “mandatory and exhaustive code of the proper means of service on German domiciled defendants”, which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is “good reason”: but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.” [55.] With regard to the jurisdictional requirements of the Brussels Convention the judgment continued at p924: “In the light of these considerations we would seek to sum up the issue of whether or not there was good reason in this case under rule 6.8 as follows. The application to Aikens J was put specifically on the basis that it was the best, perhaps the only means of bringing all parties into a single forum. An unusual form of service was requested, not for the sake of effecting service (for instance because of some difficulty about that), but for the sake of establishing jurisdiction over a foreign party (Peters) which was prima facie entitled to be sued in the courts of its domicile. The conventions controlling service between the United Kingdom and Germany were therefore being bypassed not in the interest of effecting service by some alternative method where the agreed method was not possible, but for the sake of establishing jurisdiction in England. Although the means used for effecting jurisdiction in England purported to find justification in the Brussels Convention's rule of strict chronological precedence and in its interest in seeing all related actions tried together, in truth such means subverted the principles of that Convention: for precedence was achieved only by taking an a priori view of where it was convenient for the litigation to be conducted. Moreover that view was taken in the absence of the defendant, who, because it was served before it even had a chance to address the court on the manner of its service, had the question of chronological precedence decided in its absence (otherwise than in the normal way mandated by the service conventions in force between the states concerned). The court's rationale for taking such action was a view as to where the litigation could best be canalised; whereas the Convention dictates other rules for deciding such questions. The devices sought were not therefore a means of finding a level playing field, but were designed to subvert the agreed principles by which the United Kingdom and Germany regulated service of process and jurisdiction. In our judgment there cannot be a good reason for ordering service in England by an alternative method on a foreign defendant when such an order subverts, and is designed to subvert, in the absence of any difficulty about effecting service, the principles on which service and jurisdiction are regulated by agreement between the United Kingdom and its convention partners. This is not a matter of mere discretion, but of principle.” [56.] Although this decision is concerned with the prospective applicability of CPR 6.8, the underlying principles are relevant to the retrospective applicability of CPR 6.9. In particular, there is the strong disapproval of the deployment of the rule to subvert the requirements of the Hague Convention (where an objection under Article 10 has closed off a less cumbersome method of service) so as to engage the rules of the Brussels Convention as to jurisdictional precedence. I have already referred to this problem in paras 36 and 37 above. It was no doubt with this in mind that Lawrence Collins J. expressed hesitation as to the use of CPR 6.9 in Bas Capital , supra, although in that case no international service convention was involved. [57.] The correct approach is, in my judgment, that neither CPR 6.8 (prospectively) nor CPR 6.9 (prospectively or retrospectively) should normally be used if their deployment is for the purpose of substituting a form of service or avoiding a defect in service which is inconsistent with a service convention binding as between this country and the country of service. Where it is sought to apply CPR 6.9 retrospectively, if the effect of dispensing with service is to place the defendant in the same position as he would have been in if service had not been by an impermissible method but by a method provided for by such service convention, no order should be made. The impleading of a foreign defendant which is provided for by international convention should not be effected by a fictional device aimed at circumventing the formal requirements of the relevant convention. This is an emanation of the fundamental principle of international comity and is not amenable to dilution by any feature of the Overriding Objective in CPR 1.1. [58.] Further, even if one took the view that CPR 6.9 could be applied retrospectively to cure defective service in a case such as this, its application would not have the effect of retrospectively imposing on the defendant a duty to acknowledge service. Ex hypothesi there never has been any service such as to engage that duty at the time when it would fail to be performed. It follows that there is no way in which the retrospective application of the rule can found a basis for obtaining judgment in default. “By CPR 6.9 the court may dispense with service of a document. The power under CPR 6.9 can be exercised retrospectively, but only in exceptional circumstances: Anderton v. Clwyd CC (No.2) [2002] 1 WLR 3174, 3195. The Court of Appeal distinguished the case where the claimant had not even attempted to serve a claim form in time, with the case where the claimant had made an ineffective attempt to serve, and where the defendant did not dispute that he or his legal adviser had in fact received and had his attention drawn to the claim form by a permitted method of service. In the latter case the claimant does not need to serve the claim form in order to bring it to his attention, but he has failed to comply with rules for service. The basis of the application to dispense with service is that there is no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact. The defendant will not usually suffer prejudice as a result of the court dispensing with the formality of service of a document which has already come into his hands. But in the present case there has been no valid service either by Maltese law or by English law. Service by post was not attempted. The service by facsimile and email was not effective because the defendants had not previously indicated in writing that they were willing to accept service by facsimile or by e-mail: see CPR 6PD 3.1 and 3.3. Nor was there service under CPR 6.4, which provides that personal service on a company or corporation takes place by leaving it with a person holding a senior position within the company or corporation; nor under CPR 6.5(6), which only applies to documents left with a foreign company at a place where the corporation carries on its activities within the jurisdiction. The claimants accept that the claim form has not been formally served on the defendants in accordance with Maltese law as required by CPR 6.24. But they say that the defendants have: (a) had informal service of the claim form well within the 4 month period for service; (b) received copies of all the relevant documents; (b) instructed English solicitors; and (c) taken an active part in the proceedings. Any defendant, acting sensibly and in accordance with the overriding objective, would — on receipt of the relevant documents well within the four month period and having instructed English solicitors — have waived the need for formal service or would have instructed their English solicitors to accept service in the jurisdiction.” “At the time of the hearing of this matter service had not been effected in Malta, although of course the Company, and its Board of Administration, have had the documents since at the latest June 9, 2003. It is true that a defendant is fully entitled to insist on proper service. Proper service is particularly important in international cases, where the basis of jurisdiction is service. I would therefore hesitate before ordering service by an alternative method, or dispensing with service. But I would hope that, on mature reflection, Mr Tabona would not be advised to take any purely technical point on service.” “It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a “mandatory and exhaustive code of the proper means of service on German domiciled defendants”, which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is “good reason”: but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.” “In the light of these considerations we would seek to sum up the issue of whether or not there was good reason in this case under rule 6.8 as follows. The application to Aikens J was put specifically on the basis that it was the best, perhaps the only means of bringing all parties into a single forum. An unusual form of service was requested, not for the sake of effecting service (for instance because of some difficulty about that), but for the sake of establishing jurisdiction over a foreign party (Peters) which was prima facie entitled to be sued in the courts of its domicile. The conventions controlling service between the United Kingdom and Germany were therefore being bypassed not in the interest of effecting service by some alternative method where the agreed method was not possible, but for the sake of establishing jurisdiction in England. Although the means used for effecting jurisdiction in England purported to find justification in the Brussels Convention's rule of strict chronological precedence and in its interest in seeing all related actions tried together, in truth such means subverted the principles of that Convention: for precedence was achieved only by taking an a priori view of where it was convenient for the litigation to be conducted. Moreover that view was taken in the absence of the defendant, who, because it was served before it even had a chance to address the court on the manner of its service, had the question of chronological precedence decided in its absence (otherwise than in the normal way mandated by the service conventions in force between the states concerned). The court's rationale for taking such action was a view as to where the litigation could best be canalised; whereas the Convention dictates other rules for deciding such questions. The devices sought were not therefore a means of finding a level playing field, but were designed to subvert the agreed principles by which the United Kingdom and Germany regulated service of process and jurisdiction. In our judgment there cannot be a good reason for ordering service in England by an alternative method on a foreign defendant when such an order subverts, and is designed to subvert, in the absence of any difficulty about effecting service, the principles on which service and jurisdiction are regulated by agreement between the United Kingdom and its convention partners. This is not a matter of mere discretion, but of principle.”

“If a claimant elects to serve the claim form and particulars of claim (rather than allowing the court to do so) but fails to enclose the “response pack” for the defendant, this is a technical error which does not justify a strike out—see Hanniganv Hannigan [2000] 2 F.C.R. 650, CA. A claimant’s failure to comply with r.7.8(1) is a relevant factor in consideration of whether a default judgment should be set aside.”

“(1) If particulars of claim are not contained in or served with the claim form – (a) the claim form must state that, if an acknowledgement of service is filed which indicates an intention to defend the claim, particulars of claim will follow; (b) when the claim form is served, it must be accompanied by the documents specified in rule 7.8(1)…” (a) the claim form must state that, if an acknowledgement of service is filed which indicates an intention to defend the claim, particulars of claim will follow; (b) when the claim form is served, it must be accompanied by the documents specified in rule 7.8(1)…”

"(1) A defendant must file an acknowledgement of service in every case. (2) Unless paragraph (3) applies, the period for filing an acknowledgement of service is 14 days after service of the claim form…"

"If, in any Part 7 claim – (a) the claim form has been served but no particulars of claim have been served; and (b) the defendant has failed to file an acknowledgement of service, the claimant must make an application if he wishes to obtain a default judgment. (3) The application may be made without notice, but the court may direct it to be served on the defendant." [14.] Mr Clerk submitted on behalf of the defendant that service of the claim form was invalid because there had been non-compliance with rule 59.4(1)(a) and (b). That is because, in a situation where particulars of claim were not contained in or served with the claim form, the claim form had failed to state that, if an acknowledgement of service was filed, particulars of claim would follow; and there was also a breach of 59.4(1)(b) because the claim form was not accompanied by a response pack. [15.] I accept that there was a failure to comply with those provisions of the rules. It is clear from the documents before the court that the particulars of claim were not contained in or served with the claim form. It is also apparent that the claim form did not contain a statement that, if an acknowledgement of service was filed which indicated an intention to defend the claim, particulars of claim would follow. There is a dispute about whether a response pack was served with the particulars of claim on the first occasion when it was served on 8 October 2014. The defendant's solicitors asserted in their immediate letter of response to the claim that no response pack had been provided. Although the claimant asserted the contrary, there is no documentary evidence to support that assertion and I find that he has failed to prove that a response pack was served at the same time as the claim form. [16.] However, although there were those failures to comply with rule 59.4, neither of them, as I interpret rule 59, absolved the defendant from the requirement to file an acknowledgement of service. Rule 59.5(1) states unequivocally "a defendant must file an acknowledgement of service in every case"

“The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations.”

“Article 1 The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. This Convention shall not apply where the address of the person to be served with the document is not known. Chapter 1 - Judicial Documents Article 2 Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law. Article 3 The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate. Article 4 If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request. Article 5 The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either - a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, orb) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.”

“(1) A defendant who wishes to – (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.” (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”

“[1.] My company has conduct of this matter on behalf of the Defendant, having been instructed on 20 March 2025 and having officially gone on the court record on 23 March 2025. [2.] I first had sight on 20 March 2025 of the claim documents which had purportedly been served on the Defendant. [3.] On examining the claim documents, the following issues came to my attention. On the first page of the Response Pack, in the Acknowledgment of Service section, at the bottom right, there are errors in the expression of the days allowed to the Defendant to execute certain steps. The document reads- ‘If you file an acknowledgment of service but do not file a defence within 28 days of the date of service of the claim form, or particulars of claim if served separately, judgment may be entered against you. If you do not file an application to dispute the jurisdiction of the court within 21 days of the date of filing this acknowledgment of service, it will be assumed that you accept the court’s jurisdiction and judgment may be entered against you.’ [5.] It is my understanding of the combined effect of CPR Parts 10, 15, 6, and Practice Direction 6B, that the days allowed are incorrectly set out in the Claimant’s forms and that, contrary to item 6.6 of Practice Direction 6B, the Defendant company has not been accurately informed of its rights under the CPR and under the Hague Convention of 1965. [6.] The Defendant accordingly seeks the relief set out in the application notice.” [6.] The Defendant accordingly seeks the relief set out in the application notice.”

“[36.] Of course the proceedings should have been started on CPR form N208, as opposed to CCR Form N208, and Mr Durrell ought not to have made all the other mistakes which were attributable to his culpable lack of familiarity with the new rules. Moreover the judge was quite correct when he said that the Civil Procedure Rules were drawn to ensure that civil litigation was brought up to a higher degree of efficiency. But one must not lose sight of the fact that the overriding objective of the new procedural code is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them. The interests of the administration of justice would have been much better served if the defendants' solicitors had simply pointed out all the mistakes that had been made in these very early days of the new rules and Mrs Hannigan's solicitor had corrected them all quickly and agreed to indemnify both parties for all the expense unnecessarily caused by his incompetence. CPR 1.3 provides that the parties are required to help the court to further the overriding objective, and the overriding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties.”

“[40.] Litigation cannot be conducted efficiently and at proportionate cost without (a) fostering a culture of compliance with rules, practice directions and court orders, and (b) cooperation between the parties and their lawyers. This applies as much to litigation undertaken by litigants in person as it does to others. This was part of the foundation of the Jackson report. Nor should it be overlooked that CPR rule 1.3 provides that “the parties are required to help the court to further the overriding objective”