Rana Al-Aggad v Talal Al-Aggad & Ors [2024] EWHC 226 (Comm)

“These fundamental principles are reflected in the Civil Procedure Rules.Thus Civil Procedure Rule Practice Direction 16, paragraph 2.2 provides: “The claim form must include an address at which the claimant resides orcarries on business.”

“The claim form must be headed with the title of the proceedings, includingthe full name of each party. The full name means, in each case where it isknown: (a) … his full unabbreviated name and title by which he is known …”

“The general rule is that a party who is not a party to proceedings may obtainfrom the court records a copy of (a) a statement of case but not anydocuments filed with or attached to the statement of case, or intended by theparty whose statement it is to be served with it…”

“It would be impossible to enumerate or anticipate all possiblecontingencies, but in all cases where the public has been excluded withadmitted propriety the underlying principle …is that the administration ofjustice would be rendered impracticable by their presence, whether becausethe case could not be effectively tried, or the parties entitled to justice wouldbe reasonably deterred from seeking it at the hands of the court.”

“The claimants' addresses 31. The application in respect of the claimants' addresses involves a lesserinterference with the open justice principle. In general, and in this case, thepublic's understanding of the litigation is much less likely to be affected bythe non-disclosure of addresses than of names. Nonetheless, a public interestreason must be shown to justify any departure from the usual rule thataddresses are disclosed. 32. In my judgment, the appearance of material about this case on extremistwebsites provides such a reason. Although there is no specific evidence aboutthe extent of any risk of attacks, the nature of some of the websites on which material has appeared, taken together with the well-known fact that anti-semitic attacks have markedly increased in the UK in recent years, providesa sufficient basis to conclude that disclosure of the claimants' addresseswould give rise to an appreciable risk to them and their families. Equallyimportantly, it would be bound to cause the claimants distress and worry,which they should not have to endure as a condition of bringing this claim. 33. The application for an order that the claimants' addresses need not bedisclosed in publicly available documents is therefore granted.”

“The principle has never been absolute because it may be outweighed bycountervailing factors. There is no standard formula for determining howstrong the countervailing factor or factors must be. The court has to carryout a balancing exercise which will be fact specific. Central to the court’sevaluation will be the purpose of the open justice principle, the potentialvalue of the material in advancing that purpose and, conversely, any risk ofharm which access to the documents may cause to the legitimate interests toothers…. …There may be many reasons why public access to certain information aboutthe court proceedings should be denied, limited or postponed. Theinformation may be confidential; it may relate to a person with a particularvulnerability; its disclosure might impede the judicial process; it mayconcern allegations against other persons which have not been explored andcould be potentially damaging to them; it may be of such peripheral, if any,relevance to the judicial process that it would be disproportionate to requireits disclosure; and these are only a few examples.”

“32. The following principles emerge from the authorities in this area: (i) Barton v Wright Hassall LLP makes clear the particular importanceattached by the Supreme Court to the timely and lawful service of originating process. Failure to comply with the Rules about such service is to be treatedwith greater strictness than other procedural errors. In the present case, ifthe Respondent's solicitors had made their application of 24 January 2020expressly seeking a declaration under CPR 11(1) that the court has nojurisdiction to try the claim, there would have been very little that theAppellants could have said in response. (ii) On the other hand, the principle established in Vinos and followed incases such as Ideal Shopping is that CPR 3.10 cannot be used to override anexpress prohibition in another Rule. An example of such an expressprohibition is in CPR 7.6(3) . If a claimant applies retrospectively for anorder to extend the time for service of a claim form the court may make suchan order only if the remaining conditions laid down by the rule have beenfulfilled. If they have not been fulfilled then Rule 3.10 is simply not available.But the Vinos principle must not be expanded into saying that CPR 3.10cannot be used to rectify any breach of the CPR . Otherwise the Rule wouldbe deprived of its utility. When CPR 3.10 is invoked it presupposes that someerror of procedure has been made. Without it civil litigation would be evenmore beset by technicalities than it is already. (iii) There is a valid distinction between making an application whichcontains an error, and failing to make a necessary application at all. Steelev Mooney [2005] 1 WLR 2819 is a useful illustration. In that case theclaimants sought the defendants' consent to a draft order extending time forservice of the Particulars of Claim. That consent was forthcoming, but theextension of time was useless since the claimants had omitted to refer to theclaim form. This court, distinguishing Vinos , held that the application for anextension of time was clearly intended to be for service of the claim form aswell as the particulars. The subsequent application for relief was not insubstance an application to extend time for service of the claim form, but anapplication to correct the application for an extension of time which had beenmade within the time specified for service and which by mistake did not referto the claim form. 33. Hoddinott lays down that if a Defendant acknowledges service withoutmaking an application under CPR 11(1) for an order declaring that the courthas no jurisdiction (or should not exercise its jurisdiction) to try the case,this is taken to be an acceptance of jurisdiction. Whatever one might thinkof Hoddinott , the decision is binding on us, and like the judge I do notconsider that it has been impliedly overruled by Barton . The judge was alsoright to reject the argument, based on the use of the word “expired”in Barton , that there is an analogy between the expiry of a claim form andthe death of a living creature. Plainly in some circumstances an expiredclaim form can be revived: see CPR 7.6(3) . 34. I agree with the judge that the failure of the Defendant's solicitors, whencompleting the acknowledgment of service form, to tick the box indicating anintention to contest jurisdiction is not fatal to their application for relief.Even if the box had been ticked an application would still have been requiredto be made within 14 days. CPR 11(1) does not say that a box on a form mustbe ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challengingjurisdiction. 35. The critical question, therefore, is whether the Defendant's applicationof 24 January 2020 can, by the use of CPR 3.10 , be treated as having beenmade under CPR 11(1) . I do not accept Mr Trotman's argument that suchrectification would offend against the Vinos principle. CPR 11(1) does notcontain clear mandatory wording equivalent to that laid down by CPR 7.6(3) that a retrospective extension of time may be granted “only if” certainconditions are fulfilled. 36. The failure to make express reference to CPR 11(1) in the letter of 21January 2020 or the application of 24 January 2020 was in my view an errorcapable of rectification under CPR 3.10 . The three documents - theacknowledgment of service, the covering letter and the application to strikeout supported by witness statements – together made the Defendant'sintentions clear. This was in substance an application to stop the case on thegrounds that the Claimants had failed to serve the claim form in time. Thecase is much closer to Steele v Mooney than to Vinos or Hoddinott. 37. I am not impressed by the argument on behalf of the Appellants that iftheir failure to comply with the rules is to be treated so strictly despite theserious consequences, the same procedural rigour should be applied to theRespondent. That argument is contrary to the decision of the Supreme Courtin Barton. Errors in issuing and serving originating process are in a class oftheir own.”

“16. The first point to be made is that it cannot be enough that Mr Barton'smode of service successfully brought the claim form to the attention ofBerrymans. As Lord Clarke pointed out in Abela v Baadarani , this is likelyto be a necessary condition for an order under CPR rule 6.15 , but it is not asufficient one. Although the purpose of service is to bring the contents of theclaim form to the attention of the defendant, the manner in which this is doneis also important. Rules of court must identify some formal step which can betreated as making him aware of it. This is because a bright line rule isnecessary in order to determine the exact point from which time runs for thetaking of further steps or the entry of judgment in default of them. Service ofthe claim form within its period of validity may have significant implicationsfor 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 extensionof the limitation period before the proceedings can effectively begin. It isimportant that there should be a finite limit on that extension. An orderunder CPR rule 6.15 necessarily has the effect of further extending it. Forthese reasons it has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwiseany unauthorised mode of service would be acceptable, notwithstanding thatit fulfilled none of the other purposes of serving originating process.”

“Relief from sanctions (1) On an application for relief from any sanction imposed for a failure tocomply with any rule, practice direction or court order, the court willconsider all the circumstances of the case, so as to enable it to deal justlywith the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and(b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence. General power of the court to rectify matters where there has been an errorof procedure 3.10 Where there has been an error of procedure such as a failure to complywith a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless thecourt so orders; and (b) the court may make an order to remedy the error.”

“145. The second ground of appeal concerns the scope of rule 3.10 andwhether it is available in principle in this case. It is important to analyse correctly what is the error of procedure which the appellants are asking theCourt to remedy. They are in substance asking the Court to treat the serviceof unsealed amended claim forms as good service and to dispense with therequirement for any further service. Those are matters to which rules 6.15and 6.16 are applicable and yet the appellants' applications under thoseprovisions were refused. It is also important to note that none of theappellants' applications included an application for an extension of timeunder rule 7.6(3) for service of the sealed amended claim forms. Yet, inseeking to remedy the defect in service, the appellants are, in a very realsense, seeking to achieve the same result as would a successful applicationunder rule 7.6(3) . 146. It follows that the appellants are asking the Court to do the very thingwhich Vinos and the line of authority which follows it does not permit. Thegeneral provision in rule 3.10 cannot be used to override a specificprovision, here rule 6.15 or rule 6.16. The appellants could not satisfy the“good reason” or “exceptional circumstances” criteria under those tworules and they are not permitted to use rule 3.10 to bypass the requirementsof those specific provisions. Likewise, since the appellants could not havesatisfied condition (b) of rule 7.6(3) , as they could not have shown that theyhad taken all reasonable steps to comply with rule 7.5 or that they had beenunable to do so, they cannot be permitted to use rule 3.10 to bypass therequirements of rule 7.6(3) .”

“20. The meaning of rule 7.6(3) is plain. The court has power to extend thetime for serving the claim form after the period for its service has run out“only if” the stipulated conditions are fulfilled. That means that the courtdoes not have power to do so otherwise. The discretionary power in the rulesto extend time periods rule 3.1(2)(a) - does not apply because of theintroductory words. The general words of Rule 3.10 cannot extend to enablethe court to do what rule 7.6(3) specifically forbids, nor to extend time whenthe specific provision of the rules which enables extensions of timespecifically does not extend to making this extension of time. What Mr Vinosin substance needs is an extension of time calling it correcting an error doesnot change its substance. Interpretation to achieve the overriding objectivedoes not enable the court to say that provisions which are quite plain meanwhat they do not mean, nor that the plain meaning should be ignored. Itwould be erroneous to say that, because Mr Vinos' case is a deserving case,the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionaryextension of time, but whether there is power under the Civil Procedure Rulesto extend the period for service of a claim form if the application is madeafter the period has run out and the conditions of rule 7.6(3) do not apply.The merits of Mr Vinos' particular case are not relevant to that question.Rule 3.10 concerns correcting errors which the parties have made, but it doesnot by itself contribute to the interpretation of other explicit rules. If you thenlook up from the wording of the rules and at a broader horizon, one of themain aims of the Civil Procedure Rules and their overriding objective is thatcivil litigation should be undertaken and pursued with proper expedition.Criticism of Mr Vinos' solicitors in this case may be muted and limited to oneerror capable of being represented as small; but there are statutorylimitation periods for bringing proceedings. It is unsatisfactory with apersonal injury claim to allow almost three years to elapse and to startproceedings at the very last moment. If you do, it is in my judgment generallyin accordance with the overriding objective that you should be required toprogress the proceedings speedily and within time limits. Four months is inmost cases more than adequate for serving a claim form. There is nothingunjust in a system which says that, if you leave issuing proceedings to the lastmoment and then do not comply with this particular time requirement and donot satisfy the conditions in rule 7.6(3), your claim is lost and a new claimwill be statute barred. You have had three years and four months to get thingsin order. Sensible negotiations are to be encouraged, but protractednegotiations generally are not. In the present case, there may have been anacknowledged position between the parties that the defendants' insurerswould pay compensation; but it is not suggested that they acted in any waywhich disabled the defendants in law or equity from relying on the statutorylimitation provisions and on the Civil Procedure Rules as properlyinterpreted.”

“51. I must confess to having some difficulty with the suggestion that CPR3.10 could be relied upon to validate a defect in service where, for example,service had been effected by email without permission to serve at that emailaddress, in any case in which relief could not have been obtained under CPR6.15 . A particular difficulty with CPR 3.10 is that, if it is applicable toservice errors, CPR 3.10(a) would appear automatically to validate serviceunless the Court ordered otherwise. That, with respect, is a surprising proposition, and an approach which requires the party seeking to validateservice to seek and obtain an order from the court seems inherently moreappropriate. 52. Further, the reasoning which commended itself to Nicklen J and MorganJ – that CPR 3.10 as a provision of general application must yield to the morespecific provisions on service in, for example, CPR 6.15 , 6.27 and CPR7.6(3) – also commends itself to me, for conventional legal reasons andbecause it has strong support from the majority of the Supreme Courtin Barton , [8] when addressing a similar argument as the interrelationshipof CPR 3.9 and CPR 6.15 . In these circumstances, I have concluded that ifthe Appellant is to validate the service of the notice of commencement, it mustpersuade the court to make an order under CPR 6.27 .”

“43. In Dory Acquisitions Designated Activity Company v Ioannis Frangos[2020] EWHC 240 (Comm) the claimant sought a declaration thatproceedings were validly served on the defendant in circumstances where theclaim form served did not have a court seal or claim number on its face.Bryan J rectified the irregularity in the claim form by applying CPR 3.10: [76] The guidance of the House of Lords in Phillips v Nussberger andsubsequent cases can be summarised as follows: (1) The guidance in Phillips v Nussberger is authoritative obiter dicta. (2) CPR rule 3.10 is a beneficial provision to be given a very wide effect. Itcan be used beneficially where a defect has no prejudicial effect to the otherparty and to prevent the triumph of style over substance. (See Bank ofBaroda at [17].) CPR rule 3.10 can apply even where the defect constitutesa failure to serve sufficient claim forms on defendants or a failure to deliverthe correct claim form to the correct defendants or even where a defendantreceived no claim form at all, only an acknowledgement of service form inthe context of service of claim forms on multiple defendants (see the GoldeanMariner [1990] 2 Lloyd's Reports 215 discussed in Phillips v Nussberger,Integral Petroleum and the Bank of Baroda ). This interpretation of CPRrule 3.10 applies to originating processes as much as it does to otherprocedural steps (see Bank of Baroda at [19]). (3) In view of this broad guidance, the most important question indetermining whether CPR rule 3.10 applies is whether there has been anerror of procedure which might otherwise invalidate a procedural step. Thiswould be more difficult where there has been, for example, a complete failureof service Bank of Baroda at [17]). (4) Another important factor to consider is whether the defendant hassuffered any prejudice as a result of the procedural error. The court has inthe past used its powers under CPR rule 3.10 to remedy service of anunsealed claim form without a claim number where the service of that claimdid not deprive the defendant of any knowledge of the fact that theproceedings had been or were about to be started or the nature of the claimagainst it (see Heron Bros Limited v Central Bedfordshire Council [2015]EWHC 604 (TCC), at [16]and below). (5) Whether the defect was the fault of the applicant is considered, but it is asubsidiary factor.” 44. In Piepenbrock v Associated Newspapers Ltd & others [2020] EWHC1708 (QB) , the claimant's wife purported to serve the claim form by emailon solicitors for the defendants, without obtaining confirmation that theywere instructed to accept service or that service could be effected by email.The purported service was invalid and the four month period for service of the claim form expired. Nicklin J refused the claimant's applicationunder CPR 7.6(3) for a retrospective extension of time to serve the claimform, also rejecting the alternative grounds under CPR 6.15 and 6.16 , CPR3.9 and CPR 3.10 , relying on the decisions in Integral and Bank ofBaroda (above). Having considered those cases, Nicklin J stated: “[81] These two cases were decided before the Supreme Court decisionin Barton. The comments as to whether CPR 3.10 can validate an error inserving a Claim form are strictly obiter and there is a consistent line ofauthority that suggests that CPR 3.10 cannot be used to rescue a claimantwho, having failed to serve the Claim form by a permitted method, cannotbring him/herself within CPR 7.6 , 6.15 or 6.16 : see Vinos ; Kaur … [82] My conclusion is that CPR 3.10 cannot assist the Claimant in this case:i) I consider that Barton is a clear statement of the underlying principles asto the importance of serving the Claim form in accordance with the CPR . ii) CPR 3.10 was not referred to in Barton yet, if the argument as to the widthof the rule were correct, it would appear to have been an obvious solution toMr Barton's predicament. In my view, the analysis of Lord Sumption as towhy CPR 3.9 is inapt would apply equally to CPR 3.10 . iii) If CPR 3.10 is given an interpretation that permits the Court,retrospectively, to validate service not in accordance with the CPR on thebasis that there has been a “ failure to comply with a rule ”, then that wouldmake CPR 6.15(2)redundant. That would be a surprising result as the termsof CPR 6.15(2) are of specific operation whereas CPR 3.10 is of generalapplication. Further, as noted in Godwin the effect would be “ tantamount togiving the court a discretionary power to dispense with statutory limitationperiods ”

“On August 2, 1968, the tenants of business premises made a request for a new tenancy under section 26 of the Landlord and Tenant Act 1954 . Thelandlords served a counter-notice indicating that they would oppose anapplication to the court under section 24 . On September 4, 1968, the tenantsfiled an application for a grant of a new tenancy to which the landlords filedan answer, taking no objection to the application being premature. OnDecember 5, 1968, the landlords' solicitors wrote to the tenants informingthem that they would make a preliminary objection at the hearing of theapplication, that the tenants' application was invalid since it had been madeless than two months after the request for a new tenancy, contrary to section29 (3) of the Act, and accordingly the application could not be entertainedby the court. The county court judge refused the application, holding thatsection 29 (3) went to the jurisdiction of the court and could not be the subjectof estoppel or waiver. The Court of Appeal, by a majority, affirmed thatdecision. The tenants appealed:- Held: (1) (Viscount Dilhorne dissenting), that, the requirements of section 29 (3) ofthe Landlord and Tenant Act, 1954 , were only procedural, and consequentlythe landlords had a right to ignore or object to the tenants' prematureapplication but could not waive that right. (2) (Lord Reid and Lord Pearson dissenting), that, in the circumstances, thelandlords had not waived their right to object that the application was bad,and that, accordingly the appeal must be dismissed.”

“It is not suggested that by that date (October 17) the point as to the date ofthe initiation of the proceedings had occurred to anyone. So the letter waswritten in good faith and there was no misunderstanding between the solicitors. I see no basis for a contention that by writing the letter of October17, the landlords waived the taking of any point that might later occur toanyone. Whether any point could be taken would depend upon whether therewas any procedural bar. I do not think that because of knowledge of fibs and dates (a knowledgeshared by both parties) some deemed understanding or appreciation of thetime point is to be imputed to them but even if it were so the letters do notsuggest or promise any limitation of the arguments which either party woulddecide to advance at the hearing either in support of or in opposition to theclaim of entitlement to a new lease.”

“Election is to be contrasted with equitable estoppel, a principle associatedwith the leading case of Hughes v. Metropolitan Railway Co., (1877) 2App.Cas. 439. Equitable estoppel occurs where a person, having legal rightsagainst another, unequivocally represents (by words or conduct) that he doesnot intend to enforce those legal rights; if in such circumstances the otherparty acts, or desists from acting, in reliance upon that representation, withthe effect that it would be inequitable for the representor thereafter to enforcehis legal rights inconsistently with his representation, he will to that extentbe precluded from doing so. There is an important similarity between the two principles, election andequitable estoppel, in that each requires an unequivocal representation,perhaps because each may involve a loss, permanent or temporary, of therelevant party’s rights. But there are important differences as well. In thecontext of a contract, the principle of election applies when a state of affairscomes into existence in which one party becomes entitled to exercise a right,and has to choose whether to exercise the right or not. His election hasgenerally to be an informed choice, made with knowledge of the facts givingrise to the right. His election once made is final; it is not dependent uponreliance on it by the other party. On the other hand, equitable estoppel requires an unequivocal representation by one party that he will not insistupon his legal rights against the other party, and such reliance by therepresentee as will render it inequitable for the representor to go back uponhis representation. No question arises of any particular knowledge on thepart of the representor, and the estoppel may be suspensory only.Furthermore, the representation itself is different in character in the twocases. The party making his election is communicating his choice whether ornot to exercise a right which has become available to him. The party to anequitable estoppel is representing that he will not in future enforce his legalrights. His representation is therefore in the nature of a promise which,though unsupported by consideration, can have legal consequences; hence itis sometimes referred to as promissory estoppel.”

“23. Orders under rule 6.15(1) and, by implication, also rule 6.15(2) can bemade only if there is a “good reason” to do so. The question, therefore, iswhether there was a good reason to order that the steps taken on 22 October2009 in Beirut to bring the claim form to the attention of the respondentconstituted good service of the claim form upon him. The judge held thatthere was. In doing so, he was not exercising a discretion but was reachinga value judgment based on the evaluation of a number of different factors. Insuch a case, the readiness of an appellate court to interfere with theevaluation of the judge will depend upon all the circumstances of the case.The greater the number of factors to be taken into account, the more reluctantan appellate court should be to interfere with the decision of the judge. As Isee it, in such circumstances an appellate court should only interfere withthat decision if satisfied that the judge erred in principle or was wrong inreaching the conclusion which he did. 24. It is important to note that rule 6.15 applies to authorise service “by amethod or at a place not otherwise permitted” by CPR Pt 6 . The startingpoint is thus that the defendant has not been served by a method or at such aplace otherwise so permitted. It therefore applies in cases (and only in cases)where none of the methods provided in rule 6.40(3) , including “any othermethod permitted by the law of the country in which it is to be served”(see rule 6.40(3)(c) ), has been successfully adopted. The only bar to theexercise of the discretion under rule 6.15(1) or (2) , if otherwise appropriate,is that, by rule 6.40(4) , nothing in a court order must authorise any personto do anything which is contrary to the law of the country where the claimform is to be served. So an order could not be made under rule 6.15(2) in thiscase if its effect would be contrary to the law of Lebanon. Although it washeld that delivery of the claim form was not permitted service under Lebaneselaw, it was not suggested or held that delivery of the documents was contraryto Lebanese law or that an order of an English court that such delivery wasgood service under English law was itself contrary to Lebanese law…. … 33. The question is whether the judge was entitled to hold that there wasa good reason to order that the delivery of the documents to Mr Azoury on22 October 2009 was to be treated as good service. Whether there was goodreason is essentially a matter of fact. I do not think that it is appropriate toadd a gloss to the test by saying that there will only be a good reason inexceptional circumstances. Under CPR 6.16 , the court can only dispense with service of the claim form “in exceptional circumstances”

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

“22. [ CPR 6.37(5)(b)(i) ] authorises the court therefore to make an orderfor alternative service pursuant to CPR 6.15(1) and also to make such anorder with retrospective effect pursuant to CPR 6.15(2) . Nevertheless theexercise of this power is liable to make what is already an exorbitant powerstill more exorbitant and I am persuaded by Mr Greatorex that it mustindeed be exercised cautiously and, as Stanley Burnton LJ said in Cecil vBayat [2011] 1 WLR 3086 , para 65, should be regarded as exceptional. Itwould, therefore, usually be inappropriate to validate retrospectively a form of service which was not authorised by an order of an English judgewhen it was effected and was not good service by local law. CPR 6.40 permits three methods of service including service through the BritishConsular authorities and any additional method of service should usuallynot be necessary. The fact that CPR 6.40(4)expressly states that nothing inany court order can authorise or require any person to do anythingcontrary to the law of the country in which the document is to be serveddoes not mean that it can be appropriate to validate a form of servicewhich, while not itself contrary to the local law in the sense of being illegal,is nevertheless not valid by that law. 23. It follows that a claimant who wishes retrospective validation of amethod of service in a foreign country must (save perhaps where there areadequate safeguards which were not present in this case) show that themethod of service which is to be retrospectively validated was good serviceby the local law. Service on Mr Azoury would not be regarded as goodservice on Mr Baadarani as a matter of English law merely because MrAzoury was clothed with a general power of attorney. Can Mr Freedmanshow that the position is any different in Lebanese law?” 45. I do not agree that for the court to make an order under rule 6.15(2) is“to make what is already an exorbitant power still more exorbitant”

“Since, therefore, Mr Azoury had no authority in fact to accept service andsince he did not, in any event, purport to do so, the delivery of the claim form and associated documentation to him did not, in my view, constitute goodservice in Lebanese law. I do not, therefore, think that the judge should haveretrospectively validated that service as alternative service to that directedby Morgan J unless there was very good reason to do so. The only reason todo so was to avoid the claim becoming time-barred, which is not in itself agood reason (let alone an exceptional reason) for preserving a stale claim.Mr Freedman submits that both personal service and service throughdiplomatic channels had become impossible, but that impossibility (as towhich there was very little evidence) has only arisen as a result of the dilatoryway in which the claimants have pursued the English claim. They were askingfor trouble by only issuing their claim form shortly before the limitationexpired. If the claim form had been issued say four years earlier, and adiligent process server had been instructed, Mr Baadarani might well havebeen served at one of the three address identified by Mr Houssami in hiswitness statement and the order of Morgan J would have been complied with.Four years might even have been long enough for diplomatic channels to beeffective but it is not suggested that Mr Baadarani could only be served inthat manner. If it really was proving impossible to effect service over thatlong period, an application for alternative service could still have been madewell before the six year period had expired and no retroactive gymnasticswould have been necessary.” 48. As I read para 29, the delay prior to the issue of the claim form was asignificant part of the reasoning of the Court of Appeal, although, as Iunderstand it, it was not a point taken on behalf of the respondent. I wouldaccept the submission that (save perhaps in exceptional circumstances)events before the issue of the claim form are not relevant. The focus of theinquiry on an issue of this kind is not and (so far as I am aware) has neverbeen on events before the issue of the writ or claim form. The relevant focusis on the reason why the claim form cannot or could not be served within theperiod of its validity. The judge held that there was an issue to be tried on thequestion whether the appellants' claim was time-barred. In resolving theissues of service, the court had therefore to treat the claim form as issued intime.”

“9. What constitutes “good reason” for validating the non-compliant serviceof a claim form is essentially a matter of factual evaluation, which does notlend itself to over-analysis or copious citation of authority. This courtrecently considered the question in Abela v Baadarani [2013] 1 WLR 2043 .That case was very different from the present one. The defendant, who wasoutside the jurisdiction, had deliberately obstructed service by declining todisclose an address at which service could be effected in accordance with therules. But the judgment of Lord Clarke of Stone-cum-Ebony JSC, with whichthe rest of the court agreed, is authority for the following principles of moregeneral application: (1) The test is whether, “in all the circumstances, there is good reason toorder that steps taken to bring the claim form to the attention of the defendantis good service” (para 33). (2) Service has a number of purposes, but the most important is to ensurethat the contents of the document are brought to the attention of the personto be served (para 37). This is therefore a “critical factor”

“44. Here there is no question of the claimant seeking to steal a march onPanin Bank. Whilst it is pointed out in the evidence filed by Panin Bank thatpart of the elaborate procedure laid down for service of proceedings inIndonesia has a 14-day time limit, there is no challenge to the assertionemanating from Marconi that, overall, the process of service would take “atleast one year”

“33. It is common ground that the court's jurisdiction to permit alternativeservice out of the jurisdiction stems from CPR r.6.15 . This was assumed byStanley Burnton LJ and Rix LJ in Cecil v Bayat whose view has been followed by Tugenhadt J. in Bacon v Automatic Inc. & Others [2011] EWHC 1072(QB) . Thus the court may order alternative service where there is “goodreason” to do so. 34. Although the observations of both Stanley Burnton LJ and Rix LJ in Cecilv Bayat as to how this jurisdiction should be exercised are strictly obiterdicta they were made after hearing full argument and therefore are of verypersuasive authority. It is necessary to note the following observations inparticular. Stanley Burnton LJ said, at paragraph 66, that whilst the fact thatproceedings served by an alternative method will come to the attention of adefendant more speedily than proceedings served under the HagueConvention is a relevant consideration, it is in general not a sufficient reasonfor an order for service by an alternative method. He further said, atparagraph 67, that in general the desire of a claimant to avoid the delayinherent in service under the Hague Convention cannot of itself justify anorder for service by alternative means. Service by alternative means may bejustified by facts specific to the defendant, “as where there are grounds forbelieving that he has or will seek to avoid personal service where that is theonly method permitted by the foreign law” or by facts relating to theproceedings, “as where an injunction has been obtained without notice”; seeparagraph 68. Rix LJ agreed that the mere desire for speed was unlikely toamount to good reason. However, he left out of account those cases whereservice can take very long periods and observed that “it may be that someflexibility should be shown in dealing with such cases, especially wherelitigation could be prejudiced by such lengthy periods”; see paragraph 113.”

“136. It is said by the second defendant that there was no specialcircumstance justifying an order for alternative service in the present case.One of the factors identified as such in Cecil v Bayat is the case of urgency.The second defendant points out that in making its application to the court,the claimant relied upon section 44(4) Arbitration Act 1996. That providesthat if the case is not one of urgency, the court can only act with thepermission of the arbitral tribunal. That is to be distinguished from the powerin section 44(3) which gives the court a general power to make orders for thepurpose of preserving evidence or assets if the case is one of urgency. 137. My conclusion in this respect is as follows. The claimant’s evidence insupport of its application made it clear that although, at that time, theclaimant did not envisage an urgent application for interlocutory relief, therewas nevertheless “some element of urgency” in the matter. In particular, itwas stated that “the relief sought is sufficiently urgent that to wait for serviceto be effected under the Hague Convention on the second defendant (whichcould take between three to six months) would likely defeat the purpose ofthis application, which in order to be effective, must be heard before theRussian proceedings are concluded. I understand [said the deponent] thatthere is English authority that allows for service of foreign process by analternative method, and I believe that service on the second defendant’s lawyers would not prejudice the second defendant as its lawyers alreadyrepresent it in the Russian proceedings”. 138. At the time of the application to the court, the arbitration was underway.Two procedural orders had already been made before the application to thearbitrator which resulted in the order giving permission to bring the anti-suitproceedings. I do not consider that it is surprising that the claimant thoughtit right in those circumstances to seek permission from the arbitrator. Nor doI consider that the fact that his permission was sought requires a conclusionthat the matter was not sufficiently “urgent” to fall within the kind of specialcircumstance envisaged by the court in Cecil v Bayat. Hamblen J was thejudge at first instance in that case, and was well acquainted with the issues.I consider that he was right to make the order he did, and reject thedefendants’ contentions to the contrary.”

“12. Mr. Houseman submitted that there was good reason to make a retrospective declaration of good service. His principal reasons were these: i) The proceedings involve an arbitration claim form and injunctive, anti-suit, relief. Such proceedings were the “paradigm” case in which the courtshould deal with matters “robustly” and make an order under CPR 6.15(2) .In such a case the court would be expect to determine the arbitration claimswiftly and so it was appropriate to make such an order so as to avoid delayin bringing the Second Defendant before the court. ii) The Foreign Process Section had transmitted the documents for serviceunder the Hague Convention to Russia on 26 July 2011 but there has as yetbeen no response. Almost 9 months has elapsed. On 13 February 2012 theFPS advised that service might take one year or more. Such a long period ofdelay was inappropriate when disclosure was to take place in August 2012with an exchange of witness statements thereafter leading up to an expectedtrial involving the other defendants in December 2012. Delay in serving theSecond Defendant would prejudice that trial. iii) Article 15 of the Hague Convention envisages that a court may givejudgment if six months from transmission of the papers for service elapseswithout service. That period has already elapsed…. …17. In the present case the nature of the relief sought against the defendantsis an anti-suit injunction designed to protect an arbitration taking place inLondon between the Claimant and the First Defendant. In such a case thereis a particular need for the trial to be heard promptly. If service can only takeplace via the Hague Convention there is a risk, on the evidence now beforethe court, that it may not take place in sufficient time to enable the trialagainst all defendants to take place in December 2012. Disclosure has beenagreed, subject to questions of jurisdiction and service, to take place inAugust 2012. That is just over one year from the date when the papers weretransmitted by the FPS to Russia. Service may not take place until some timethereafter and so the projected early trial may be put at risk. 18. In principle I consider that such considerations are capable of amountingto “good reason” to make a retrospective declaration of good service. I donot consider that such an approach is inconsistent with the guidance of theCourt of Appeal in Cecil v Bayat . The considerations to which I havereferred are “facts relating to the proceedings” of a type recognised byStanley Burnton LJ in paragraph 68 of his judgment as justifying an orderunder CPR 6.15 . They are also considerations resulting from a long periodof delay in service which Rix LJ recognised might require flexibility wherelitigation could be prejudiced.”