“(2) Service is to be carried out in accordance with Part 6 of the CPR as that Part applies to either a “claim form” or a “document other than the claim form” except where this Schedule provides otherwise or the court otherwise approves or directs. … (5) If for any reason it is impracticable to effect service as provided for in paragraphs (2) to (4) then service may be effected in such other manner as the court may approve or direct. (6) The third column of the table below sets out which documents are treated as “claim forms” for the purposes of applying Part 6 of the CPR and which are “documents other than the claim form” (called in this Schedule “other documents”). (7) The fourth column of the table sets out modifications to Part 6 of the CPR which apply to the service of documents listed in the first and second columns. (8) Part 6 of the CPR applies to the service of documents outside the jurisdiction with such modifications as the court may approve or direct.”
“The general position of a person to whom notice is addressed that legal process may be made against him which may result in consequences prejudicial to him and which in certain circumstances he may be able, by performing certain acts, to avoid, and the position even more generally, is discussed in Porter v. Freudenberg [1915] 1 K. B. 857, and more particularly considered in the judgment of Lord Reading, who delivered the judgment of the Court. His Lordship was there considering the conditions under which substituted service might be permitted, a problem which had become particularly acute at the outbreak of the recent War by reason of the fact that service was sought against persons who had thereby become alien enemies; but the observations of the Court are of general application. Lord Reading laid down in general terms what are the considerations which should move a judge in Chambers before whom an application is made for substituted service of a writ, and he said this: First, "to satisfy himself that there exists a practical impossibility of actual service." That matter does not here arise, because clearly on the evidence there was not a practical possibility of actual service, seeing that the debtor, by common agreement, was at the time out of the realm. Next: "To satisfy himself .... that the method of substituted service asked for by the plaintiff is one which will in all reasonable probability, if not certainty, be effective to bring knowledge of the writ or the notice of the writ (as the case may be) to the defendant." Then follow these extremely important words: "Our English procedure has hitherto been laudably superior to the Continental in not permitting that which may be called 'constructive service,' such as, e.g., by public notices or advertisements, whereby a defendant may be condemned unheard because he has had no knowledge of the proceedings against him." Those later words indicate clearly to my mind that the Court of Appeal in Porter v. Freudenberg were considering not only the important problem which was there raised, for the reasons which I have stated, but were considering the general principle of law that the defendant shall not by defective notice be condemned unheard because he has no knowledge of the proceedings against him. In such a case as the present - and indeed, it may be, in dealing with all instruments which call upon a party to answer a claim at law - one has to consider what exactly the notice to be given calls upon the person served to do, and what rights it gives him. In the case of an act of bankruptcy - which is a matter of the most serious public consequence, involving, if it be followed ultimately by a declaration of bankruptcy, deprivation both of public and of private civil rights, disallowing the debtor to serve in public capacities or in either House of Parliament, disabling him from performing public functions, and interfering with his ordinary rights as a citizen to make such contracts as he will - the Court should, if anything, be more careful than it might be in ordinary legal process resulting, perhaps in damages, or some other legal consequences. Perhaps one need not say "more careful," because complete care is necessary in every case. In so far, however, as Mr. Tindale Davis has argued that some distinction is to be made in favour of the creditor in dealing with the Bankruptcy Rules in contradistinction to the Rules of the Supreme Court, I say that, if any distinction is to be made, it ought to be made in favour of a more rigorous interpretation of the Bankruptcy Rules , which are in their very nature of a penal or semi-penal character. In point of fact the principles stated in Porter v. Freudenberg are of entirely general application.” (Emphasis added.)
“I understand that jurisdiction according to English law is based on the act of personal service and that if this is effected the English law does not feel bound by the Roman maxim "Actor sequitur forum rei." It is far otherwise in other systems where service is in no sense a foundation of jurisdiction, but merely a sine qua non before effective action is allowed. Now service being the foundation of jurisdiction, it follows that that service naturally and normally would be service within the jurisdiction. But there is an exception to this normal rule, and that is service out of the jurisdiction. This however is not allowed as a right but is granted in the discretion of the judge as a privilege, and the rule in question here prescribes the limits within which that discretion should be exercised.”
“… The court generally acts in personam. Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of a limitation period, the general rule is that “service of originating process is the act by which the defendant is subjected to the court's jurisdiction”: Barton v Wright Hassall llp[2018] 1 WLR 1119 , paragraph 8. The court may grant interim relief before the proceedings have been served or even issued, but that is an emergency jurisdiction which is both provisional and strictly conditional. In Dresser UK Ltd v Falcongate Freight Management Ltd[1992] QB 502 the Court of Appeal held that, for the purposes of the Brussels Convention (the relevant provisions of the Brussels Regulation are different), an English court was “seised” of an action when the writ was served, not when it was issued. This was because of the legal status of an unserved writ in English law. Bingham LJ described that status, at p 523, as follows: “it is in my judgment artificial, far-fetched and wrong to hold that the English court is seised of proceedings, or that proceedings are decisively, conclusively, finally or definitively pending before it, upon mere issue of proceedings, when at that stage (1) the court's involvement has been confined to a ministerial act by a relatively junior administrative officer; (2) the plaintiff has an unfettered choice whether to pursue the action and serve the proceedings or not, being in breach of no rule or obligation if he chooses to let the writ expire unserved; (3) the plaintiff's claim may be framed in terms of the utmost generality; (4) the defendant is usually unaware of the issue of proceedings and, if unaware, is unable to call on the plaintiff to serve the writ or discontinue the action and unable to rely on the commencement of the action as a lis alibi pendens if proceedings are begun elsewhere; (5) the defendant is not obliged to respond to the plaintiff's claim in any way, and not entitled to do so save by calling on the plaintiff to serve or discontinue; (6) the court cannot exercise any powers which, on appropriate facts, it could not have exercised before issue; (7) the defendant has not become subject to the jurisdiction of the court.”
“… there is something unsatisfactory in there being a requirement which it is common ground applies in this case, that the case be a suitable one for service out, without a formal determination of that question in an order which is susceptible to direct challenge. The benefit of analysing a case such as this one as requiring (a) an order for permission to serve out of the jurisdiction; and (b) a decision as to the method of service which allowed service to be effected in the jurisdiction, is that it clearly separates the two different issues under consideration, allowing the resolution of each in accordance with the applicable regime. Thus, as Mr Salzedo QC pointed out, in the present case it should be for the claimant to meet the forum conveniens burden which applies to a party seeking permission to serve out, rather than for the defendant to identify a more convenient forum as is the case when a stay is sought of proceedings commenced by service within the jurisdiction (applying Spiliada Maritime Corp. v. Cansulex [1987] A.C. 460). Similarly, so far as the first issue is concerned, the requirements ofCPR Part 11 should be satisfied.”
“Under the old practice, as I have said, great delay and expense were occasioned in bringing before the Court a reluctant defendant, who was not desirous of having the question in dispute brought into court. To avoid the evils attendant on that practice the provisions of the rules on the subject have given power to the Court under certain conditions to order substituted service. The rule provides that, “when service is required, the writ shall, wherever it is practicable, be served in the manner in which personal service is now made, but if it be made to appear to the Court or a judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or judge may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as may seem just.”
“The words of Order IX., r. 2, provide for substituted service, if it be made to appear to the Court or a judge that the plaintiff is from any cause unable to effect prompt personal service. The facts of the case clearly bring it within those words. Then, is there anything in any other rule that prevents us from giving their full effect to those words? I cannot find anything.”
“It is said that the registrar had no jurisdiction to make an order for substituted service of the bankruptcy notice, because at the time when the order was made the debtor was not in England. It is said that an order cannot be made for substituted service unless the debtor is within the jurisdiction; so that, if the creditor had known where he was, he could have been personally served with the notice. Is there any such restriction in rule 154? It says that the Court may order substituted service to be made, if it is satisfied by evidence “that the debtor is keeping out of the way to avoid such service.”
“Much to my surprise, it has been contended that an order for substituted service cannot be made when a debtor has gone out of this country to avoid service. In Watt v. Barnett, Mellor, J., said (at p. 186): “I think that the object of the 2nd rule of Order IX. was to obviate the difficulties that the plaintiff might be exposed to by reason of a defendant's going abroad and keeping abroad, and it being impossible to effect personal service, and to prevent the plaintiff's right being entirely defeated by reason of these difficulties. It was intended, in my opinion, in such cases to enable the Court to order substituted service, and that when such substituted service is directed it should have all the effects of personal service.”
“It was contended on his behalf that no order could be made in bankruptcy for substituted service of the petition, when the debtor was out of the jurisdiction, unless he was keeping out of the way to escape from service of process. It is true that under r. 156 of the Bankruptcy Rules, 1915, provision is made for substituted service where “the debtor is keeping out of the way to avoid such service”: but the rule is not limited to that event; it provides for substituted service if “for any other cause prompt personal service cannot be effected,” and r. 158 provides for service where a debtor petitioned against is not in England. Mr. Cutler Smith's evidence established that the registered letters addressed to the debtor at 62, Pall Mall were duly forwarded to him; and when the debtor's solicitors attended on the adjourned hearing of the petition they admitted the debt and the act of bankruptcy, the latter being non-compliance with the bankruptcy notice, which had been sent by registered post as authorized. There was no irregularity in the mode of service of the petition, and the order for substituted service cannot be set aside. On this point the appeal fails.”
“Mr Ghanim's business undertakings require him to travel extensively. In the three years prior to the bankruptcy petition being presented, Mr Ghanim has travelled to approximately 24 different countries on varying numbers of occasions. However, he regularly returns to Doha and stays there for extended periods of time, consistently with Doha being his home. During this period Mr Ghanim has travelled to London on 11 occasions (as well as to Istanbul on 4 occasions, Paris on 3 occasions, Kuala Lumpur on 2 occasions, and single visits to a number of other places around the world). Mr Ghanim's stays in London are usually short. Ordinarily, he will only stay in London for periods of one night to up to one week. For example, on four occasions he stayed between two and six days. As far as I am aware, his longest stays in the last three years have been of 14 and 18 days.”