(1) FAUSTIN MUSHINJA RUKUNDO (2) VIOLETTE UWAMAHORO v REPUBLIC OF RWANDA [2025] EWHC 1675 (KB)

"(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid. (3) A State which appears in proceedings cannot thereafter object that sub-section (1) above has not been complied with in the case of those proceedings. (4) No judgment in default of appearance shall be given against a State except on proof that sub-section (1) above has been complied with and that the time for entering an appearance as extended by sub-section (2) above has expired. (5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry. (6) Sub-section (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and sub-sections (2) and (4) above do not apply where service is effected in any such manner. (7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and sub-section (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction."

"21 Evidence by certificate. A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question— (a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State; (b) whether a State is a party to the Brussels Convention mentioned in Part I of this Act; (c) whether a State is a party to the European Convention on State Immunity, whether it has made a declaration under Article 24 of that Convention or as to the territories in respect of which the United Kingdom or any other State is a party; (d) whether, and if so when, a document has been served or received as mentioned in section 12(1) or (5) above."

"Conclusive evidence on any question of - (d) whether and if so, when a document has been served or received, as mentioned in section 12(1) or section 12(5) above."

"(1) This rule applies where a party wishes to serve the claim form or other document on a State. (2) In this rule, 'State' has the meaning given by section 14 of the State Immunity Act 197816. (3) The party must file in the Central Office of the Royal Courts of Justice – (a) a request for service to be arranged by the Foreign and Commonwealth Office; (b) a copy of the claim form or other document; and (c) any translation required under rule 6.45. (4) The Senior Master will send the documents filed under this rule to the Foreign and Commonwealth Office with a request that it arranges for them to be served. (5) An official certificate by the Foreign and Commonwealth Office stating that a claim form or other document has been duly served on a specified date in accordance with a request made under this rule is evidence of that fact. (6) A document purporting to be such a certificate is to be treated as such a certificate, unless it is proved not to be. (7) Where – (a) section 12(6) of the State Immunity Act 1978 applies; and (b) the State has agreed to a method of service other than through the Foreign and Commonwealth Office, the claim form or other document may be served either by the method agreed or in accordance with this rule. (Section 12(6) of the State Immunity Act 1978 provides that section 12(1) enables the service of a claim form or other document in a manner to which the State has agreed.)"

"NV 072/24 The High Commission of the United Kingdom of Great Britain and Northern Ireland presents its compliments to the Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda the honour to transmit by way of service the enclosed documents regarding the matter SOP2024-031, this being a proceeding instituted in the United Kingdom. Receipt of these documents by the Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda is deemed as service upon the defendant State under the State Immunity act 1978 of the United Kingdom. The British High Commission requests that these documents be transmitted to the defendant Ministry. The British High Commission of the United Kingdom of Great Britain and Northern Ireland avails itself of this opportunity to renew to the Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda the assurances of its highest consideration."

"To whom it may concern Rukundo and Uwamahoro v The Republic of Rwanda (Claim No. KB-2022-001718) Media and Communications List The Government of Rwanda hereby confirms that receipt of documents in respect of the above proceedings before His Majesty's High Court of Justice in England does not constitute acceptance of the jurisdiction of the courts of England and Wales in this matter. An acknowledgement of service will be filed in due course by Omnia Strategy LLP on behalf of the Government of Rwanda. In the interim the Government of Rwanda reserves its right to challenge the court's jurisdiction."

"No. 3309 /09.01/CAB.PS/LA/24 The Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda presents its compliments to the High Commission of the United Kingdom of Great Britain and Northern Ireland in Kigali and has the honour to forward attached herewith for onward transmission the letter of the Rwandan Minister of Justice/Attorney-General on the Claim No. KB-2022-001718 Rukundo and Uwamahoro v The Republic of Rwanda before His Majesty's High Court of Justice in England. The Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda avails itself of this opportunity to renew to the British High Commission of the United Kingdom of Great Britain and Northern Ireland the assurances of its highest consideration."

"1, Jane Bamukunde, Consular Officer of the British High Commission Kigali hereby certify that copies of the documents hereto annexed were served upon the Ministry of Foreign Affairs of the Government of Rwanda by the delivery thereof to the Ministry of Foreign Affairs at KG 1 Roundabout, Kigali on the 30th day of April 2024."

"No. 4723 /09.16/West.E/2024 The Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda presents its compliments to the High Commission of the United Kingdom of Great Britain and Northern Ireland in Kigali And with reference to the note verbale 3309/CAP.PS/LA/24 dated 9 th May 2024 forwarding the letter of the Rwandan Ministry of Justice/Attorney-general on the Claim No. KB-2024-001718, has the honour to request the esteemed High Commission to deliver the documents to the Rwanda High Commission in London. The Ministry of Foreign Affairs and International Cooperation of the Republic of Rwanda avails itself of this opportunity to renew to the British High Commission of the United Kingdom of Great Britain and Northern Ireland the assurances of its highest consideration."

"The Foreign, Commonwealth & Development Office, presents its compliments to the Rwanda High Commission in London and has the honour to refer to the Republic of Rwanda Note of 03 July 2024 regarding the service of process KB-2024-0017LB (sic). Under the State Immunity Act 1978, the Foreign, Commonwealth & Development's role is to transmit the papers to the Ministry of Foreign Affairs in Rwanda. This was served in accordance with Section 12 of the State Immunity Act 1978 on 30 April 2024 to the Ministry of Foreign Affairs in Kigali. Oversea Public Services is returning the service set for Claim No. KB-2022-0017L8 (sic) of Rukundo and Uwamahoro v The Republic of Rwanda as requested to the Rwanda High Commission in London. Under Section 12 of the State Immunity Act 1978, this has no impact on the process or timescales for a response. The Foreign, Commonwealth & Development Office avails itself of this opportunity to express to the Rwanda High Commission the assurances of its highest consideration."

"Please see enclosed certificate of service and return set of documents issued by the British embassy in Kigali, relating to the above matter. The documents were delivered to the Ministry of Foreign Affairs in Rwanda who took possession of them but they were then returned after a few hours. A note verbale was subsequently received which includes the following text: "

"Please find enclosed herewith evidence of service (service set attached) documents in the above matter received from the authorities of Rwandan by the Foreign Commonwealth and Development Office."

"4. We are instructed that: a. Two attempts to serve the claim out of this jurisdiction were made in recent weeks; b. At the time of the first event attempt the Government declined to accept the documents and asked the service agent to return shortly thereafter so the appropriate written acknowledgement of receipt could be provided upon the Government taking receipt of the documents; c. Prior to the second attempt the Government of Rwanda had resolved to accept receipt of the documents in question at its Ministry of Foreign Affairs and International Cooperation in Kigali, Rwanda. Owing only to an administrative oversight the delivery was mistakenly declined a second time by the Ministry front desk when the service agent returned; d. When the Government of Rwanda became aware of this error, it proactively communicated with the UK government so that delivery could be organised; and no further attempt to deliver the documents to the Ministry of Foreign Affairs and Cooperation in Kigali has been made."

"5. The Government of Rwanda respects the courts in this jurisdiction and their procedures and has directed the relevant reception staff at its Ministry of Foreign Affairs and International Cooperation to take delivery of the papers when presented again in Kigali. 6. So that our client may take the appropriate further steps to ensure that delivery is Julie accepted we are instructed to make ourselves available to you to coordinate and agree a date and time for delivery of the documents at the Ministry of Foreign Affairs and International Cooperation in Kigali in accordance with the relevant court order for service out of the jurisdiction."

"We are confused by the Defendant's position and their instructions in respect of service, as well as their proposal to coordinate a specific date and time for delivery at the Ministry of Foreign Affairs and International Cooperation in Kigali. The Defendant has not agreed for the documents to be served in any other manner. (See section 12(6) of the 1978 Act) We also note your firm is not authorised to accept service on behalf of the Defendant. The claimants assert that they have followed CPR 6.44 of section 12(1) of the Act to effect service of the claim form and other documents on the Defendant."

"The Master has considered the application for default judgment and the recent correspondence which the court has received from the Claimant and the Defendant (via Omnia Strategy) but has concerns as to the state immunity aspects and the Defendant's position generally (although if there has been valid service, at first sight the Defendant would require permission to file an Acknowledgement of Service out of time). The Master is considering directing a hearing (and cf. Edward v Okeke [2023] EWHC 2932 ) or referring the application to the High Court Judge but wishes to know the Claimants' position (with reasons) as to (i) whether there should be a hearing (ii) whether the Defendant should be told of the application for default judgment (and if not why not) (iii) the default judgment application should await the Court of Appeal's decision in Shebabi v Kingdom of Bahrain (which is, presumably, due by some point in November 2024) or (iv) whether any default judgment should provide for the defendant to be able to apply to set aside the order within two months of the eventual Shebabi decision or of service of the order (whichever is the later)."

"The circumstances in which the documents to which you refer in your letter were taken into the possession of the Ministry of Foreign Affairs (MFA) are as set out in my letter of 4 September a copy of which is attached. We do not consider that it is necessary to provide any definition beyond that, which describes in plain terms our understanding of the situation. Tthe source of this information was our High Commission in Kigali. I can confirm the documents were initially taken to the MFA [MinF] on 24 April 2024. This was done without a covering Note Verbale and without giving the MFA any indication of the nature of the documents in the sealed box. The MFA declined to accept the documents and it was not made clear at any point during that initial exchange of this was an attempt at service under the State Immunity Act 1978. Staff from the High Commission returned to the MFA on 30 April 2024 to serve the documents under cover of Note Verbale, which had been sent to the MFA in advance. The circumstances relating to service on 30 April are set out in my letter of 4 September."

"84. The general law as to construction of documents is not in dispute (and is applicable to these circumstances – see the final paragraph of the White Book notes at 6.7.1 and such cases as Actavis v Ely Lilly [2013] EWCA 517 and Higgins v ERC [2017] EWHC 2190 ). As stated in such cases as Arnold v Britton [2015] UKSC 36 and Lukoil Asia Pacific Pte Ltd v. Ocean Tankers (Pte) Ltd (The "

"66. That seems to me to be a particular application of two well established principles applicable to the interpretation of documents, namely (i) that documents intended to be read together can be read together, and (ii) obvious mistakes can be corrected as a matter of interpretation. I have no difficulty with either proposition, or their application to the circumstances in that case, but they do not seem to me to establish Mr Onslow's proposition or have any direct bearing on the present case. There is here no difficulty in interpreting the Amended Claim Form. It is clearly worded and no-one has suggested that it is ambiguous, let alone that it contains a clerical error that can and should be corrected by reference to the Particulars of Claim. 67. The second case was Akenhead J's decision in Travis Perkins, already referred to above. He had to consider whether the brief details of claim on the claim form were apt or sufficient to cover a claim later advanced in the particulars of claim (see at [17]). In his summary of the principles at [22] he drew from Evans the principle that: '(d) In construing or understanding what was intended by the wording used, the court can and where necessary should have regard to the context or 'factual matrix' (as per Arden LJ in Evans) in which the claim has been prepared. It is legitimate to have regard to the Particulars of Claim, particularly if served promptly at or about the time of the issue and/or service of the claim. It is legitimate to have regard to correspondence and applications sent or served at or about the same time as the claim. Indeed it may be legitimate to look further back in time for exchanged communications between the parties, albeit that caution may need to be exercised to limit this exercise only to such communications which clearly demonstrate what was intended to be the subject-matter of the proceedings which followed.' This goes rather further than Evans in suggesting that regard can be had to the particulars of claim not only when served with the claim form, but also "particularly" when served "about" the time of service of the claim. I have some reservations about this as normally a document has a single meaning when first executed, or at least communicated, and cannot change its meaning in the light of later developments; and I have quite serious reservations about the use Akenhead J made of the principle. In that case the claim form had been issued on 26 July 2013 (see at [8]); the date when the claim form was served does not appear to be given in the judgment, unless I have missed it, but must have been shortly afterwards as on 2 August 2013 the parties agreed a stay (see at [12]), which would not have been necessary had the proceedings not yet been served; and after various extensions of time had been agreed the particulars of claim were not served until early November 2013 (see at [13]). Nevertheless Akenhead J concluded at [27] that because the parties had agreed to the extension of time, the Court could have regard to the particulars of claim as an aid to interpretation of the claim form served some three months before. That seems doubtful to me, particularly so when the whole question was whether the particulars of claim went beyond the claims advanced in the claim form. 68. But none of this matters for present purposes. What matters for present purposes is that Travis Perkins, like Evans, is a case about interpreting or construing the brief details on the claim form. In the present case, as I have already said, there is no ambiguity or difficulty of construction in the brief details of claim given in the Amended Claim Form. There is no need to resort to the RAPOC to understand them."

"122. Read on its own and strictly, the licence would appear to give to ULAS the option of depositing any of the remains in the Jewry Wall Museum, or reinterring any of them in the Cathedral, or burying any of them "in a burial ground in which interments may lawfully take place"

"4 Evidence. If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact."

"9. On 4 January 2016 the FCO issued a certificate in the following terms - 'Under the authority of Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, Julian Evans, director of Protocol at the Foreign and Commonwealth Office hereby certify that the appointment of Sheikh Hamad bin Jassim bin Jaber Al Thani as a member of the diplomatic staff of the mission of the State of Qatar in the United Kingdom was notified to the Foreign and Commonwealth Office on 28 August 2013; and on 28 May 2014 his arrival date was notified as 6 November 2013, from which date he has enjoyed the privileges and immunities of a member of the diplomatic staff of a mission.'. "

"60. The claimant does not seek to contradict the terms of the FCO certificate (set out at [9] above). It is contended that the last sentence however, should be disregarded in so far as it purports to be a legal conclusion rather than a statement of fact. The FCO practice reflected in the views of such commentators as Denza and Wilmshurst is that a certificate is directed to facts for the assistance of the court but the conclusions of law are for the court alone. The understanding of the courts and indeed the terms of DPA s.4 are to similar effect. It may well be that a certificate is based on an understanding of the law, and the FCO understanding of the legal basis for any facts may itself be a source of information to the court's decision, but I agree with the claimant that I am not bound by a certificate that purports to go beyond its function under the statute. 61. The information supplied by the FCO to the parties has not been entirely consistent as to the relevant dates. On 4 September 2015 a letter was issued indicating that the defendant was recognised as a Minister Counsellor on 6 November 2013. In a letter to the claimant's solicitors dated 5 October 2015, it states that it was notified by the Qatari Embassy of an in intention to appoint the defendant to its diplomatic staff and was accredited with diplomatic status in October 2014. The certificate itself explains that notification took place on 28 August 2013 and on 28 May 2014 the defendant's arrival date was notified as 6 November 2013. The reference to the 6 November in the earlier letter thus appears to be the date from which accreditation to the diplomatic staff of the Embassy has been considered effective. The last sentence in the certificate is, in my view, based on a view of the law that arrival to take up a diplomatic post followed by the absence of any objection by the receiving state together results in membership of diplomatic staff with the consequent immunity. The letter to the defendant's solicitors with the certificate observes that the agreement of the receiving state is not necessary in the case of a member of diplomatic staff other than a head of a mission."

"83. I have not been compelled to decide a question of law a certain way by the terms of the FCO certificate and its last sentence. I have reached my independent conclusion as to what a member of a diplomatic mission means in domestic and international law. If ultimately it is a question whether a sending state has appointed such a person to its mission and that appointment has been consented in by the receiving state, then the terms of the certificate are conclusive evidence of the facts."

"38. The FCO submitted that the February certificate was conclusive proof of the facts therein stated. This was consistent with the clear and unambiguous terms of s.4 of the 1964 Act which provides that " any fact relating " to a question of entitlement to " any privilege or immunity " shall be conclusively evidenced by such a certificate. It was submitted that Parliament's intent in section 4 was to attain the highest degree of evidential certainty in matters relating to privileges and immunities, in accordance with the purpose of the 1964 Act, namely to give effect to the UK's obligations under the VCDR and to ensure the efficient performance of the functions of diplomatic missions. The authoritative commentary on diplomatic law by Eileen Denza [ Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations 1961 – 4th edition, OUP 2016] set out the UK practice on such certificates as follows: "

"41. The FCO submitted that the effect of robbing s.4 of the 1964 Act of its force would be detrimental to the conduct of foreign relations. It was imperative to ensure that the control mechanism for the termination of privileges and immunities be left in the hands of the FCO as this " avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry " [per Blake J in Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 QB at [77] quoted with approval by Lord Dyson MR in paragraph 33 of Estrada ]. It was submitted that paragraph 4 of the February certificate certified the date upon which the mother's diplomatic privileges and immunities came to an end, this being a date arising from a treaty provision and a policy designed to give effect to it. This fact must be considered in its appropriate context and consistently with a statutory scheme founded on the policy considerations identified in The Arantzazu Mendi . 42. The Estrada case is not precisely on all fours with the circumstances arising in this case. In Estrada the Court of Appeal held that the judge was wrong to investigate the question of whether Dr Al-Juffali had exercised or discharged the functions of a permanent representative. The Court cautioned against the dangers which might arise in those circumstances: for example, the position of the UK's diplomats and permanent representatives in other countries might be scrutinised, and their status unjustifiably curtailed, by the courts of receiving states asserting a power to undertake a functional review. The conduct of foreign relations and the work of international organisations could be seriously hampered if the acceptance of accreditation of diplomats and permanent representatives was not regarded as conclusive, but was open to scrutiny by the courts [ Estrada , paragraph 24]. 43. In this case however the dispute concerned what was a reasonable period within which to bring the mother's diplomatic rights and privileges to an end. That was different to a dispute, for example, about the date upon which a diplomat arrived or took up his/her diplomatic functions or the date at which those functions came to an end. I find that the language of the February certificate as set out in paragraphs 3 and 4 did not describe facts alone. Rather it set out what was a mixed question of fact and law: the fact being the date the diplomatic rights and privileges of the mother terminated but that fact being dependent upon what the UK Government considered to be reasonable within Article 39(2) of the VCDR . Mr Verdirame on behalf of the FCO conceded that " reasonableness " was not a question of fact but rather an interpretive question of law. He was, in my view, right to make that concession. The 1964 Act does not set out a precise time limit for the termination of diplomatic rights and privileges as is the case for example in Switzerland (6 months) or Venezuela (one month). In the absence of such a statutory provision, the question of what constitutes a reasonable period may be determined by national courts if a dispute arises. 44. I therefore determine that the February certificate was not per se determinative of the date when the mother ceased to enjoy diplomatic privileges and immunities. The reasonableness of the period pursuant to Article 39(2) in this particular case was ultimately a matter for the court to scrutinise and determine. 45. If reasonableness was a matter for the court to assess, what were the key considerations in the circumstances of this particular case? First, I find that the reasonable period pursuant to Article 39(2) must be strictly and exclusively for the purposes of the duration of VCDR privileges and immunities. To exercise powers consistently with the purposes of the 1964 Act, the Secretary of State is required to determine such matters by reference to considerations of diplomatic immunity and privilege. That determination of reasonableness must be made in the context of inter-state diplomatic relations and on the basis of matters that the Executive is best placed to consider. 46. Second, even if the Secretary of State's view as expressed in the certificate was not conclusive, I accept the submission by the FCO that it was thoroughly and critically relevant. The Secretary of State has a clear and consistent policy, which is designed to enable proper functioning of diplomatic relations. Though that policy may be subject to exceptions in certain cases in accordance with general public law principles, I find that such exceptions should relate only to diplomatic relations and the purpose for which VCDR immunities and privileges were properly conferred."

"78. I consider that the most satisfactory explanation of the one voice principle lies in the view that certain matters are facts of state in the sense that they are peculiarly within the cognisance of the executive which has the conduct of foreign relations. Where, as here, the issue is recognition of a foreign head of state, what matters is the attitude of the executive, of which the executive statement can be the only authoritative source and which should therefore be treated as conclusive. This is a point made by Viscount Finlay in Duff Development (at p 813, cited above) and taken up by Professor Clive Parry in A British Digest of International Law , (para 70 above), pp 215-216: "it is clear that the executive certificate commonly relates to the question whether or not the Crown has done a particular act or adopts or has adopted a particular attitude: whether, for instance, the Crown has or has not recognised a foreign state or government, or has declared war, or has claimed or claims jurisdiction or territorial sovereignty with respect to a given place. Where such a matter is in question, the statement of the Crown, in the form of the executive certificate, would seem to be necessarily conclusive. In such a case the matter is indeed 'peculiarly within [the] cognizance' of the Crown, as Lord Finlay expressed it in Duff Development Co v Government of Kelantan. In such a case also the certificate itself, or its equivalent, may constitute the very act of the Crown which is certified, as for instance in The Fagernes [1927] P 311 …, where the Crown's disclaimer of jurisdiction over a place in the middle of the Bristol Channel was made by the Attorney General in open court …, or in Duff's case … where the Attorney General maintained in argument that the Colonial Office's statement in relation to the status of Kelantan 'amounted to a recognition'. And cases where the certificate has been refused or appears ambiguous, or where it has not been considered to be conclusive, may be found upon analysis to be generally cases where the question put has related to something other than an act of the Crown itself, which is not 'peculiarly within [its] cognizance'." 79. In the United Kingdom it is for the executive to decide with which entities or persons it will have relations on the international plane. Where the executive makes an express statement of recognition of a government or head of state the courts will speak with the same voice, in accordance with the one voice principle… 92. First, I consider that the Court of Appeal erred in concluding that the language of the certificate was ambiguous or less than unequivocal. It is necessary to seek to ascertain the intention of HMG from the words used in the certificate in the light of the request to which it responds. Here the letter dated 14 February 2020 from Robin Knowles J to the Foreign Secretary expressly asked who is recognised by HMG as the head of state of Venezuela and who is recognised by HMG as head of government of Venezuela. The answer was unequivocal. It referred to and set out the Hunt statement: "

"18. I consider first whether by reason of DHL's having taken the documents to the Syrian MFA in Damascus on 18 April 2017 (§ 16.iv) above) on behalf of the FCO, the present proceedings were "transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs" and "received at the Ministry" within section 12 of the 1978 Act. 19. The Act contains no definition of the words "transmitted" or "received" in section 12, and counsel informed me that they had found no authority on their meaning other than the cases cited below. It seems likely that the word "received" is intended, at least, to indicate that it is not sufficient merely for documents to be transmitted in the sense of being dispatched: they must actually reach the relevant Ministry. Conversely, section 12 does not in my view require the documents to be accepted upon delivery: otherwise the recipient could evade service simply by declining to accept delivery. 20. The Claimants cited Pocket Kings v Safenames [2009] EWHC 2529 (Ch) , where a claim was served on the US State Department but several months later returned by the Department to the British Embassy. It was held that that rejection of service in no way impugned the validity of the service of the proceedings. The decision supports the view that a subsequent rejection of the documents does not prevent valid service from having taken place. It is not on all fours with the present case, where it appears that the Syrian reception consignee refused to take the documents in the first place. 21. The Claimants also provided a solicitor's note of a hearing before Teare J on 2 February 2018 in the proceedings EIB v Syrian Arab Republic (CL-2017-000508), according to which Teare J concluded that there was valid service under section 12 where an email had been sent to the Syrian MFA and no undeliverable notification received, indicating that the email had been received in the electronic repository or server – by contrast with the position in relation to a later email sent on 30 January 2018 for which a failure message had been received. Teare J is recorded as having accepted the submission that, following the Court of Appeal's decision in Anson v Trump [1998] 1 WLR 1404 that 'transmission' (in the context there of service by fax) was complete when the complete document had been received into the recipient's fax equipment, transmission by email was achieved when the email arrived in the electronic repository. That decision provides a helpful analogy for a case such as the present one where a document has physically arrived at the Ministry's premises, whether or not it has been accepted, opened or read. 22. The Claimants also referred to two of the numerous definitions of the word "receive" in the Oxford English Dictionary, which include at 16a and b: 'To have (a thing) given or handed to oneself…' and ' To get (a letter, etc.) brought to oneself or delivered into one's hands' 23. In the present case, the documents were not merely transmitted to the Syrian MFA but actually arrived within the Ministry's premises. Further, it appears from the FCO's letter quoted in § 16.iv) above that the consignee knew the identity of the sender, but refused to take the package and instead insisted on its removal from the premises. In these circumstances, there was no further step that could have been taken in order to effect service, and in my judgment no further step which needed to be taken. The documents had been transmitted to and received at the Syrian MFA, notwithstanding that the Ministry's representative insisted on their immediate removal. I do not consider that the reception consignee's refusal to take the package into his hands prevented it from having been received at the Ministry for the purposes of section 12, and I conclude that service under that section was complete when DHL proffered the package to the consignee."

"21. On 10 April 2014 the FCO certified that "copies of the documents hereto annexed" were served on the Iranian MFA on 10 February 2014 by delivery in person to Mr Mohammed Hossan Habibollazadeh, non-resident Chargé d'affaires to London. A copy of the certificate was provided. The Claimants emailed the FCO to request a copy of the annexed list of "served" documents referred to in the certificate. There was no response to that request."

"195. I have already set out in detail in the Procedural Chronology the FCO letter of 9 April 2015 relating to what happened on 10 February 2014. The central paragraph is: 'It was a very short visit and because of pressure of business, there was limited opportunity to hand over documents during the meeting. Therefore at the end of the meeting on 10 February, while the UK delegation was speaking to the Iranian delegation outside the Iranian MFA building (but within the Iranian MFA compound), Mr Chamberlain explained to the Iranian officials that the UK had some documents to hand over. He then handed the documents over to his counterpart Mr Sahebi, explaining that they were legal papers that needed to be served on the Iranian MFA. Mr Sahebi accepted the documents and put them in his vehicle '."

"4. The MFA accepts notes verbales at a kiosk. When I went there, the officer on the door asked to read the note verbale through a glass screen. When he saw that it involved legal papers, he made a telephone call to a colleague - Mr Hadi from the Protocol Department of the MFA – and said that the MFA refused to accept the note, and that I should instead contact the MFA's Western European Department. I attempted to leave the papers in the kiosk, but the officer made clear that this would not be possible… 9. The papers relating to this case have not been in the possession of the Ministry of Foreign Affairs at any time."

"209. The Claimants submit that the FCO Certificate of Service dated 10 April 2014 should be treated as conclusive evidence of service. CPR Rule 6.44(5) provides that an official certificate by the FCO stating that a Claim Form or other documents have been duly served on a specified date in accordance with a request made under the rule "is evidence of that fact."

"234. The words 'transmitted' and 'received'/'receipt' in sections 12(1) and 12(5) are not terms which are generally to be found in English procedural rules relating to service. They are to be found in Article 16 of the Basle Convention, which pre-dated the 1978 Act, and Article 22 of the 2004 Convention, which post-dated the 1978 Act. 235. The main focus in relation to 2 September 2015 is what is meant by the judgment having to be "received" at the MFA for time to begin to run for applying for the Judgment to be set aside. It seems to me that a document, or anything else, cannot be received if a person expressly refuses to accept it. The rules as to ordinary service are drafted in a way such that service cannot be evaded by non-receipt or non-acceptance. This is not the case with section 12(5). Nor can the outcome of a state being able to evade service by refusing to take documents override the natural meaning of the word 'receive. Thus, I am afraid I disagree with the ex parte decision in Certain Underwriters . I note also that the dictionary definitions referred to in that case at [22] tend not to support a finding that refusing to receive/accept a document amount to it being received. In the circumstances there was not service of the judgment on 2 September 2015."

"89. As set out in Section B above, the evidence shows that the order of Males J. was indeed transmitted from the FCO via the British embassy in Cairo to the Egyptian Ministry of Foreign Affairs. The relevant documents were clearly received by the Ministry in April 2019. They were then returned to the British embassy later in April. 90. The decision of the Court of Appeal in General Dynamics establishes, as described above, that it was not necessary for the order to be served pursuant to s. 12 of the SIA 1978. However, even if s.12 were to apply, the receipt by the Ministry of Foreign Affairs is established on the present evidence, and this is sufficient to fulfil the requirements of that section. In Certain Underwriters at Lloyds v Syrian Arab Republic [2018] EWHC 385 (Comm) , Mr. Andrew Henshaw QC (as he then was) decided that the receipt of documents was sufficient. A defendant could not therefore evade service by simply declining to accept delivery: see paragraphs [19] and [23]. Although the deputy judge's decision on another point was disapproved by the Court of Appeal in General Dynamics, no doubt was cast upon his approach to s.12 in the present context. Mr. Malek did not submit that the deputy judge was wrong, and I do not think that he was. 91. It follows, subject to two points, that service of the order sufficient to fulfil the requirement of s. 12 (if applicable) was indeed effected, and there is on any view a very strong case that that is so. It must equally follow, in my view, that there was service sufficient to meet the requirements of CPR r. 6.44. Egypt contended that s.12 and CPR r. 6.44 go hand-in-hand, and there was therefore no suggestion that there is a more stringent requirement under CPR r. 6.44 than under s. 12 of the SIA. 92. The first of these points concerns the justification for the return of the documents which is advanced in Mr. Gadhia's second witness statement. He says, in paragraph 10 (set out in full above), that: ' The reason the documents were returned and no service was effected was because the process for service of documents in foreign proceedings on the Defendant, as a State, requires that those documents be directed to the correct department within the Defendant's government (which is not the Assistant's Office)'. 93. I do not consider that this provides a justification for the return of the documents, or provides a reason why service was not successfully accomplished. There is nothing in s. 12 of the SIA 1978, or CPR r. 6.44, which requires service to be directed to the 'correct department within the Defendant's government', save only that s.12 does refer to the 'Ministry of Foreign Affairs of the State'. In the present case, this department of state was where the documents were sent and indeed received."

"33. The role of the FCDO under section 12(1) is to act as a channel of communication. In his judgment in the present case, Males LJ stated (at para 29) that section 12 SIA "gives to the executive which is responsible for the conduct of this country's international relations a legitimate role in deciding whether, when and how a foreign state should be made subject to the jurisdiction of the English courts"

"26. The procedure for service via the FCDO laid down in section 12(1) of the State Immunity Act is the exclusive and mandatory method for service on a foreign state in the absence of an agreement within section 12(6) of the State Immunity Act (see General Dynamics v. Libya [2022] AC 318 UKSC at para.37). Service, therefore, has to be effected by transmission through the FCDO to the Ministry of Foreign Affairs of a defendant state and takes effect when the document is received at that Ministry of Foreign Affairs. 27. It may be noted that the requirement is for service "at" and not merely "on" the Ministry of Foreign Affairs: see Kuwait Airways Corporation v. Iraqi Airways Company [1995] 1 WLR 1147 at 1155H to 1156D, where Lord Goff rejected the submission that service of a writ on the Iraqi Embassy in London, with a request for onward transmission, which was not effective, constituted service at the Iraqi Ministry of Foreign Affairs, for the purposes of section 12(1)). 28. The documents must be transmitted to the Ministry of Foreign Affairs through the FCDO, which is a process called, in General Dynamics, "service through a diplomatic channel" in which the FCDO acts as a channel of communication. The word used in section 12(1) is "transmitted"

"45. One reason for the enactment of the SIA was to permit the United Kingdom to become a party to the European Convention on State Immunity, Basle, 16 May 1972, ETS No 74 ("the ECSI"), a Council of Europe Convention. Section 12 SIA has its origin in article 16 of the ECSI which provides: Article 16 1. In proceedings against a contracting state in a court of another contracting state, the following rules shall apply. 2. The competent authorities of the State of the forum shall transmit - the original or a copy of the document by which the proceedings are instituted; a copy of any judgment given by default against a State which was defendant in the proceeding. through the diplomatic channel to the Ministry of Foreign Affairs of the defendant state, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant state. 3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs. 4. time-limits within which the State must enter an appearance or appeal against any judgment given by default shall begin to run two months after the date on which the document by which the proceedings were instituted or the copy of the judgment is received by the Ministry of Foreign Affairs. 5. If it rests with the court to prescribe the time-limits for entering an appearance or for appealing against a judgment given by default, the court shall allow the State not less than two months after the date on which the document by which the proceedings are instituted or the copy of the judgment is received by the Ministry of Foreign Affairs. 6. contracting state which appears in the proceedings is deemed to have waived any objection to the method of service. 7. If the contracting state has not appeared, judgment by default may be given against it only if it is established that the document by which the proceedings were instituted has been transmitted in conformity with paragraph 2, and that the time-limits for entering an appearance provided for in paragraphs 4 and 5 have been observed.."

"61. I would add that Bahrain sought in the court below to rely on statements made in Parliament during the passage of the Bill. The judge held that these statements did not satisfy the requirements set out in Pepper v Hart [1993] AC 593 , and that they were therefore inadmissible. That decision has not been challenged on appeal. Notes on Clauses which were private to Ministers are an a fortiori case. 62. In fact it is too simple, and therefore inaccurate, to say that the purpose (or even a purpose) of the 1978 Act was to implement the ECSI as a matter of domestic law. The true position is that the Act gave broad effect to the ECSI, but departed from it in a number of respects. This is made clear by a number of statements of high authority. For example, in La Générale des Carrières & des Mines v FG Hemisphere Associates LLC [2012] UKPC 27 , [2013] 1 All ER 409 , Lord Mance said that: ''10. The Act was aimed at giving broad effect to (though not following precisely the wording of) the European Convention on State Immunity (Basle, 16 May 1972; Misc 31 (1972); Cmnd 5081), which was agreed under the aegis of the Council of Europe at Basle on 16 May 1972 and which entered into force on 11 June 1976.' 63. To similar effect, in General Dynamics Lord Lloyd-Jones pointed out at [48] and [76(4)] that the 1978 Act 'deliberately diverges from the ECSI' in relation to the enforcement of arbitration awards against a state. He concluded, therefore, that its provisions cast little light on the correct reading of section 12 of the 1978 Act, which is concerned with service of court process on states. Other examples where the Act diverges to a greater or lesser extent from the Convention include contractual obligations (cf. section 3(1)(b) of the Act and Article 4(1) of the ECSI), employment contracts (cf. section 4(1) and Article 5(1)), and companies (cf. section 8(1) and Article 6(1)). It should therefore come as no surprise to find that section 5 is another provision which diverges from the equivalent provision in the ECSI."

"56. Although Mr Amedu denies the existence of the agreement (on behalf of the Federal Government of Nigeria), he does not do so on the basis of any documentary record or any information emanating from the Solicitor-General said to have made this agreement on behalf of the Federal Government of Nigeria, i.e., Mr Abidogun. The only reason given by Mr Amedu for denying the existence of such agreement is the fact that there was no High Commissioner between August 2015 and October 2017. 57. Relying on the mere fact that there was no High Commissioner at the relevant time does not go far enough. In his First Affidavit, (which was admittedly light on detail) Dr Williams said that the agreement was that "the Nigerian High Commission" would accept service – not that the High Commissioner would do so. In his Second Witness statement, Dr Williams said that the Solicitor General said that he would instruct "the Ambassador in London" – but this was on any view loose language, this being the wrong title for the senior person within the High Commission. When he provided more detail in his Second Affidavit – made as long ago as November 2018, long before Mr Amedu's evidence that there was no High Commissioner in February/March 2016 – Dr Williams said that the Solicitor General referred to the Acting High Commissioner: his evidence was that the Solicitor General said that the claim form should be delivered to the High Commission, and that he would instruct the Acting High Commissioner to accept service and forward the documents to the Attorney General. 58. Mr Kaihiva said that Dr Williams's evidence about the agreement reached with the Solicitor General was hearsay about a mere oral agreement and should not be given any weight. However, it is the only evidence that I have available, and it has been repeated by Dr Williams several times. I consider that I have not been given any real reason not to accept it. 59. Furthermore, Dr Williams's evidence that in March 2016 he spoke to the acting High Commissioner, Ambassador Bamgbose, who confirmed that he had received such instructions, tends to corroborate Dr William's case on this point. So, too, does the evident fact that the claim form was in fact forwarded to the Attorney General. 60. Mr Amedu does not deny any of the following: i) The Solicitor General in February 2016 was Mr Abidogun. ii) It was in Mr Abidogun's power, as Solicitor General, to make an agreement of this kind, on behalf of the Federal Government of Nigeria. iii) Conversations such as Dr Williams asserts may have taken place, in particular between Mr Abidogun and Mr Sowemimo. iv) Although there was no High Commissioner in February/March 2016, Ambassador Bamgbose was the Acting High Commissioner. v) At all events, Mr Abidogun, as Solicitor General, appears to have instructed Ambassador Bamgbose to be the Acting High Commissioner in this specific regard, in the sense of acting as High Commissioner by accepting service and forwarding the documents to the Attorney General. 61. I therefore accept that, on the evidence presented to me, it seems likely that the Federal Government of Nigeria agreed to accept service by delivery to the High Commission in London, as duly happened. This was an agreement within section 12(6) of the State Immunity Act 1978."

"60 The present case is concerned, more specifically, with how the process by which one State is subjected to the jurisdiction of the courts of another State is initiated. Clearly, there is a need to ensure that the jurisdiction is properly invoked and that the process does not give rise to any breach of international law. Serving legal proceedings on a State is a relatively unusual matter and there are advantages in establishing clear procedures by which it might be effected. There is a danger here that, otherwise, an attempt may be made to serve process on a representative of the defendant state or on diplomatic premises in a manner which gives rise to a breach of international law. In particular, there is a danger that an attempt to serve on diplomatic premises would infringe their inviolability under article 22 of the Vienna Convention on Diplomatic Relations, 1961 (Fox and Webb, The Law of State Immunity, p 235)."

"11 (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. (2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10. (3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction. (4) An application under this rule must – (a) be made within 14 days after filing an acknowledgment of service; and (b) be supported by evidence. (5) If the defendant – (a) files an acknowledgment of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including – (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form was served; and (d) staying the proceedings. (7) If on an application under this rule the court does not make a declaration – (a) the acknowledgment of service shall cease to have effect; (b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and (c) the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed. (8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim. (9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file – (a) in a Part 7 claim, a defence; or (b) in a Part 8 claim, any other written evidence."

"27. The first provision to note, not considered in the authorities summarised above, is CPR 3.10, by which: "

"10.1 Acknowledgment of service (1) This Part deals with the procedure for filing an acknowledgment of service. (2) … (3) A defendant may file an acknowledgment of service if – (a) he is unable to file a defence within the period specified in rule 15.4; or (b) he wishes to dispute the court's jurisdiction. (Part 11 sets out the procedure for disputing the court's jurisdiction.) 10.2 Consequence of not filing an acknowledgment of service If – (a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and (b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgment if Part 12 allows it' The closing words, "if Part 12 allows it", mean that, contrary to one of Marketing's submissions, CPR 10.2 does not say that default judgment may be entered after a (late) acknowledgment of service has been filed. That depends on what Part 12 says and in particular, therefore, on what CPR 12.3(1) means. 29. CPR 10.5 requires an acknowledgment of service to be signed by the defendant or the defendant's legal representative (CPR 10.5(1)(a)) and to include the defendant's address for service (CPR 10.5(1)(b), with a cross-reference to CPR 6.23 for rules as to addresses for service). 30. Turning to CPR Part 11, CPR 11(1) provides that a defendant who wishes to dispute jurisdiction or argue that the court should not exercise jurisdiction may apply for an order declaring that the court has no jurisdiction or should not exercise jurisdiction, but by CPR 11(2), "

"30. Although Collyer Bristow have been instructed since 3rd October, and although Mr. Tolley told me at the hearing on 31st October that his clients intended to challenge the jurisdiction and seek to set aside the proceedings against them, no acknowledgement of service was served by the second defendants until 12th November, that acknowledgement of service being the prerequisite of any challenge to the jurisdiction under CPR Part 11. Accordingly, that acknowledgement of service was filed 75 days late. The time for acknowledgement of service having expired on 29th August, the application under Part 11, insofar as it was made in the Commercial Court, should have been filed 28 days later, by 26th September. 31. The first question I have to consider is whether to give the second defendant permission to serve the acknowledgement of service out of time and to grant the necessary extension. In support of his application, Mr. Tolley submits that this is not a case where the second defendant is seeking relief against sanctions under CPR 3.9. He says the court is simply exercising its discretion under CPR 3.1(2)(a) so that the principles established in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 , [2014] 1 WLR 795 , as clarified in Denton v TH White Limited [2014] EWCA Civ 906 , [2014] 1 WLR 3926 , simply do not apply. In support of that proposition he relies upon the judgment of Moore-Bick LJ in the recent Court of Appeal decision of Altomart v Salford Estates (No.2) Ltd [2014] EWCA Civ 1408 . That was a case where a respondent was seeking an extension of time to file a respondent's notice in the Court of Appeal under CPR 52.5(2)(b). Mr. Tolley relied upon para.10 of that judgment, where Moore-Bick LJ said: ' In my view it is clear from the language of rule 3.8 that it is concerned with a sanction imposed by the very rule, practice direction or order of which the applicant is in breach, hence the use of the words "imposed by the rule, practice direction or court order."

' In Mitchell itself, however, the sanction from which relief was sought had not been prescribed as a consequence of default by any rule practice direction or previous order of the court. It was a sanction imposed by the court in the exercise of its discretion for a failure to comply with a rule that itself prescribed no sanction for default. To that extent it might be thought that the case did not fall within the natural ambit of rules 3.8 and 3.9. Liberty to apply for relief from that sanction appears to have been given in order to allow fuller argument at a later date when more time could be made available; otherwise one might have thought that an appeal against the order imposing it would have been the more appropriate course. Nonetheless, the application proceeded under rule 3.9 and laid down principles which are intended to govern applications under that rule. The question remains, however, whether they were intended to govern applications, such as the present, for extensions of time where no sanction is prescribed for the default. 13. The consequences of failing to file a respondent's notice within the prescribed time are not spelled out in the rules, so on the face of it there is no sanction within the meaning of that expression in rules 3.8 and 3.9 from which the respondent needs relief. However, in a number of cases dating back more than a decade the courts have recognised the existence of implied sanctions capable of engaging the approach contained in rule 3.9 and therefore now the Mitchell principles. The first was Sayers v Clarke Walker [2002] EWCA Civ 645 , [2002] 1 WLR 3095 '

'"In Mitchell itself the court made it clear at paragraphs 49-51 that it considered that similar principles applied in other cases of failure to comply with the rules, describing an application for an extension of time for service of particulars of claim as being in substance an application for relief from sanctions under CPR 3.9, and since then the concept of the implied sanction has played a prominent part in a number of decisions…'

'Accordingly, I think it is now established that an application for permission to appeal out of time is analogous to an application under rule 3.9 and is therefore to be decided in accordance with the same principles.'

'The purpose of the respondent's notice is to enable Altomart to rely at the hearing of the appeal on grounds for upholding the judgment that were not before the court below. If an extension of time is not granted it will be unable to do so. To that extent that area of dispute will not come before the court. In my view for a respondent to be prevented from pursuing the merits of a case it wishes to pursue on the appeal is no more or less of an implied sanction than it is for an appellant to be prevented from pursuing its case on appeal. In my view, therefore, the Mitchell principles apply with equal force to an application for an extension of time in which to file a respondent's notice.' 33. In my judgment, that reasoning is equally applicable to the second defendant's application for an extension of time in which to file an acknowledgement of service. The consequence of not being granted an extension would be that the acknowledgement of service filed on 12th November will have to be set aside as a nullity, and the second defendant will not be permitted to mount his challenge to the jurisdiction. That is clearly an implied sanction, just as the respondent's inability to pursue its case on the merits was in Altomart. Accordingly, in my judgment, the Mitchell principles apply. 34. The applicable principles are clarified in Denton v White and usefully summarised in Moore-Bick LJ's judgment in Altomart at paras.19 and 20, where he says as follows: '

"The court clearly contemplated that if the default is not serious and significant, relief is likely to be granted."

"37. As I have said, Deputy Master Teverson's order provided in effect that service of the claim form would have to be carried out by 13 October 2021. None of the defendants filed an acknowledgment of service by that date. The disposal hearing was listed well before the first, third and sixth defendants filed their acknowledgments on 6 December 2021. CPR rule 11(2) is mandatory: there must be compliance with Part 10 in filing the acknowledgment of service before a challenge can be made. Here, rule 10.1(2) refers on to rule 8.3. In my judgment, those defendants cannot on the one hand ignore the time limit for filing an acknowledgment of service, and yet claim the benefit of CPR rule 11.4(a) as if they had complied with that time limit, in order to prevent the listed disposal hearing from going ahead. In my judgment they should at the least have applied for an extension of time in which to file their acknowledgments. Then the court could have decided whether the benefits that would accrue from granting such an extension should indeed be conferred. 38. My conclusion is supported by the decision of Popplewell J (as he then was) in Taylor v Giovani Developers Ltd [2015] EWHC 328 (Comm) , another case on a jurisdictional challenge where the acknowledgment of service had been filed out of time. The judge said: '"14. The first question which arises is whether the First Defendant can apply for an extension of time of nine days within which to mount the jurisdiction challenge without also seeking an extension of time for entering an acknowledgment of service. Rule 11(2) provides: 'A defendant who wishes to make such an application [to dispute the court's jurisdiction or argue that the court should not exercise its jurisdiction] must first file an acknowledgment of service in accordance with Part 10.' 15. On behalf of the First Defendant, Mr. Harding argued that an acknowledgment of service which complied with the formalities of Part 10 satisfied Rule 11(2), whether or not it had been served timeously. On behalf of the Claimants, Mr. Davies submitted that in order to qualify under Rule 11(2), an acknowledgment of service must comply in all respects with Part 10, and an acknowledgment of service which does not comply with the time provisions set out in Part 10 is not an acknowledgment of service in accordance with Part 10. 16. The Claimants' submissions are to be preferred on this question. The wording of Rule 11(2) is clear. The acknowledgment of service must be "in accordance with Part 10"

"167. It therefore seems to me that one way or another the Defendants will have to obtain consent or permission to file acknowledgments of service out of time and where the Claimants are likely to contend that such should only occur on condition that no challenge to jurisdiction (and, perhaps, to the late service of the Particulars of Claim – although I have heard no argument and express no view on that) is made or succeeds (effectively a conditional order under CPR3.1(3)). Those matters are not such that I consider that I can properly, on the limited material and submissions before me, determine in this judgment."

"3.9(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with 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."

"60. There are also two intermediate possibilities. One is that the time when the conditions in rule 12.5 must be satisfied is when the claimant makes a request to the court office to enter judgment. A variant of this approach would be, where the claim is for "some other remedy," to treat the critical time as the time when an application under rule 12.10(5) is made."

"22. Here I pause. There seems to me some distinction to be made between a party that seeks to set aside a judgment that has been entered in default, and therefore engage in questions under CPR 12 as to reasonable prospects of success in the proposed defence, and a party that seeks to rely upon permission for a retrospective extension of time to file and serve a defence in the absence of judgment having been entered. The distinction seems to me this the draft defence in the latter scenario does not have to have quite the same cogency as to prospects of success as a party who is seeking to set aside a judgment that has been entered regularly. That is not to say that the court is not entitled to have regard to any defence that is put before the court as part of such an application. But providing the proposed defence in the context of an extension of time application is sufficiently coherent such that it does not fall within the parameters of abuse of process, or constitute an obvious attempt to waste time or delay further, it generally ought to be found sufficient at least for the purposes of that application subject of course to the underlying explanation for the delay. The distinction I describe is really the difference between the very necessary explanation that would be required in a relief from sanction (which I treat setting aside a regularly obtained judgment as being in effect) and the explanation and presentation that, whilst drawing upon the court's discretion and consideration as to good case management, does so without a clear adverse decision already having been made. In effect, the point being made in Yesss (A) Electrical v Warren."

" Conditions to be satisfied 12.3. (1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered - (a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. (2) Judgment in default of defence (or any document intended to be a defence) may be obtained only— (a) where an acknowledgement of service has been filed but, at the date on which judgment is entered, a defence has not been filed; (b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed, and, in either case, the relevant time limit for doing so has expired. (Rule 20.4 makes general provision for a defendant's counterclaim against a claimant, and rule 20.4(3) provides that Part 10 (acknowledgement of service) does not apply to a counterclaim made under that rule.) (3) The claimant may not obtain a default judgment if at the time the court is considering the issue (a) the defendant has applied— (i) to have the claimant's statement of case struck out under rule 3.4; or (ii)for summary judgment under Part 24, and, in either case, that application has not been dealt with; (b )the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment; (c)(i) the claimant is seeking judgment on a claim for money; and (ii )the defendant has admitted liability to pay all the money claimed but has requested time to pay (d) notice has been given under rule 82.21 of a person's intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been dealt with."