Bill Kenwright Ltd v Flash Entertainment FZ LLC [2016] EWHC 1951 (QB)

[2016] EWHC 1951 (QB)Case No HQ15X01436
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2016
Before
MR JUSTICE HADDON-CAVE
Between
Bill Kenwright LimitedClaimantFlash Entertainment FZ LLCDefendant
Adam Johnson and Emily Blanshard (instructed by Herbert Smith Freehills LLP ) for ClaimantTamara Kagan (instructed by Allen & Ovary LLP) for DefendantHearing Hearing dates: 23 June 2016
Judgment ApprovedMr Justice Haddon-Cave :Introduction
[1]This is an application by the Defendant, Flash Entertainment FZ LLC, to challenge service of proceedings on it in Abu Dhabi by the Claimant, Bill Kenwright Limited, on the grounds that:(a) it does not have a sufficiently arguable case on the merits;(b) it does not have a sufficiently arguable case on the jurisdictional gateways;(c) forum non conveniens; and(d) various other grounds related to service.[2]The Claimant is an independent theatre and production company incorporated in England. Its Chief Executive is Bill Kenwright. The Defendant is an organiser and promoter of live events in Abu Dhabi, including sporting and theatre events. The Defendant is incorporated in the United Arab Emirates and is a wholly-owned subsidiary of the Government of Abu Dhabi. Its Chief Executive is John Lickrish.[3]The Claimant alleges that it entered into three agreements with the Defendant, each of which was breached:(1) The First Agreement, said to have been concluded on or about 27th June 2010 with involvement of an independent broker, Mr Rod Gunner, and the Defendant’s Head of Projects, Mr Brett Judd, whereby the Claimant would present “Jekyll & Hyde” over a three-week period in Abu Dhabi in February 2011 for the sum of £780,000.(2) The Second Agreement, said to have been concluded on or about 15th January 2011, again with involvement of Mr Gunner and Mr Judd, whereby it was agreed that the productions of “Jekyll & Hyde” would be moved to September 2011 and the Claimant would be entitled to payment of a further £260,000 in compensation for the postponement, i.e. £1,040,000 in total.(3) The Settlement Agreement, said to have been reached on 4th November 2011 in an international telephone conversation between Mr Kenwright in London and Mr Lickrish in Abu Dhabi, whereby the Claimant alleges that the Defendant agreed to pay a total sum of £500,000 in settlement of the breaches of the First and Second Agreements, payment to be made in three tranches: £200,000 to be paid on 4th November 2011, £150,000 on 9th January 2012 and a further £150,000 on 9th January 2013.[4]By these proceedings, the Claimant claims against the Defendant £500,000 due under the Settlement Agreement.[5]The Defendant admits that there were negotiations regarding the Claimant bringing “Jekyll & Hyde” to Abu Dhabi in 2011, but denies that any binding agreements were concluded and denies the existence of the Settlement Agreement.

Procedural background

[6]The following summary of the procedural background is taken from the Claimant’s skeleton argument.[7]The Claim Form was issued on 6th March 2015. The Particulars of Claim are dated 17th July 2015. By application notice dated 23rd July 2015, the Claimant applied for permission to serve the Claim Form, Particulars of Claim and other documents on the Defendant out of the jurisdiction ("Application for Service Out"). An application for Service Out was granted by Order of Master McCloud dated 24th July 2015 ("Order for Service Out").[8]By application notice dated 27th August 2015, the Claimant applied:(i) for permission to serve the Claim Form, Particulars of Claim and other documents on the Defendant by registered mail; and(ii) for an extension of time for service of the Claim Form until 31st July 2016. By Order of Master McCloud dated 27th August 2015 the period for service of the Claim Form was extended to 31st October 2015.[9]By application notice dated 14 October 2015, the Claimant applied:(i) for permission to serve the Claim Form, Particulars of Claim and other documents on Flash by registered mail; and(ii) for an extension of the time for service of the Claim Form until 31st July 2016 ("Second Application for Service by Alternate Method"). By Order of Master McCloud dated 20th October 2015 the period for service of the Claim Form was extended until 31st July 2016. By Order of Senior Master Fontaine dated 27th October 2015, headed “Service by an Alternative Method”, the Claimant was permitted to serve the Claim Form, Particulars of Claim and other documents on the Defendant by registered mail. The Order for Service by Alternate Method directed that documents were to be “deemed” served on the second business day after posting. The Claim Form and Particulars of Claim were posted by registered mail to the Defendant at its address (Floor 3, Park Rotana Building, twofour 54 Media Zone, Khalifa Park, PO Box 77828, Abu Dhabi, United Arab Emirates) on 16th December 2015.[10]By application notice dated 2nd February 2016, the Defendant sought declarations/orders that:(i) the Defendant be granted permission to rely on the expert evidence of Dr Habib;(ii) the courts of England and Wales do not have/will not exercise jurisdiction over the Defendant;(iii) the Order for Service Out dated 24th July 2015, the Orders for extension of time dated 27th August 2015 and 20th October 2015 and the Order for Service by an Alternative Method dated 27th October 2015 issued by this court be set aside;(iv) the Claim Form be set aside; and(v) service of the proceedings (and any other document in the proceedings) on the Defendant be set aside.

The Law

[11]The law in this area is well understood and needs no elaborate rehearsal. The following summary of the applicable principles will suffice:(1) The courts are traditionally careful before allowing a writ to be served on a foreign defendant out of the jurisdiction and must scrutinise most jealously the factor(s) which gives rise to jurisdiction (Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814 at [17] CA; and c.f. Pearson J in Societe Generale de Paris v Dreyfus Bros (1885) 29 Ch D 239, 242-243).(2) The court will have jurisdiction if, and only if, the claimant can show a “good arguable case” that the claim falls within one of the jurisdictional gateways in Practice Direction 6B.(3) Where, as here, the issue goes to both the question of jurisdiction and the substantive merits at the trial, the claimant must show that it has a “much better argument on the material available” that the claim falls within a gateway (seeWaller LJ in Canada Trust Co v. Stolzenberg (No. 2) [1998] 1 WLR 547; and Brownlie v Four Seasons [2016] 1 WLR 1814 at [18]).(4) The words “much better argument” mean more than simply the case is arguable: the evidence must achieve an acceptable level of quality and adequacy (Brownlie v Four Seasonsibid at [23]).(5) The so-called Canada Trustgloss means that the court is concerned with a question of “relative plausibility” on evidence adduced on an interlocutory basis, which the court must decide without prejudice to any ultimate decision the court might have to make at trial; and there is both a relative element and an absolute standard to be met (per Cooke J in Erdenet Mining Corp. v. Kazakhstan [2016] EWHC 299 at [13]).[12]The editors of Dicey, Morris & Collins summarised the approach as follows (at paragraph 11-147): "The question before the court is one which is normally decided on affidavits from both sides and without full disclosure and/or cross-examination, and the power to order a preliminary issue will seldom be used because trials on jurisdiction issues are to be strongly discouraged. The court must be concerned not even to appear to express some concluded view on the merits, e.g. as to whether the contract existed or not. 'Good arguable case' reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e.

(A) Factual Question

[13]The Claimant’s case on jurisdiction depends upon proof of the existence of the Settlement Agreement.

Analysis of the evidence

[14]The Defendant accepts that preliminary discussions took place in 2010 between one of its employees, Mr Judd, and Mr Gunner, concerning the possibility of the Claimant bringing several productions to Abu Dhabi, including “Jekyll and Hyde” but denies that binding agreements to this effect were ever concluded. The Defendant contends that:(i) Mr Judd lacked authority;(ii) matters never progressed beyond due diligence; and(iii) in any event, no formal written agreements were ever signed by it. It is not necessary, however, to resolve the arguments as to the existence of the First or Second Agreements. The reason is that the current proceedings are based solely on the Settlement Agreement as a self-standing agreement. The central issue is whether the Claimant has “the much better argument” as to the existence of the Settlement Agreement.[15]The following points on the evidence are pertinent. First, there is cogent evidence that the parties were in a dispute regarding the musical “Jekyll & Hyde” and that the Claimant was claiming that:(i) the parties had agreed binding terms for the musical to be shown in Abu Dhabi in February 2011 (the First Agreement);(ii) the Defendant had reneged on those terms and the Claimant had agreed to put back the production six months until September 2011, subject to the Defendant paying compensation for the delay (the Second Agreement);(iii) it had incurred considerable pre-production costs in preparing to bring the musical “Jekyll & Hyde” to Abu Dhabi in 2011 pursuant to these agreements; and(iv) it was entitled to compensation from the Defendant for its losses. The Defendant denied that there were any binding terms.[16]Second, there is cogent evidence to suggest that the dispute escalated over time and did not go away. The Claimant’s position (and Mr Kenwright’s frustration) was made known to the Defendant by Mr Gunner as early as June 2011. It was evident to the Defendant that the Claimant regarded there to be a problem between them and wanted satisfaction.[17]Third, there is cogent evidence to suggest that both CEOs became directly involved in the dispute. Mr Lickrish was sent a detailed briefing note prepared by Mr Gunner on the dispute on 25th June 2011. It is common ground that Mr Kenwright spoke to Mr Lickrish on the telephone on 13th July 2011. There is disagreement as to precisely what was said but Mr Lickrish accepts that Mr Kenwright "said that Flash was supposed to put on a show but that it had been cancelled or postponed".[18]It is common ground that a meeting took place between the two chief executives in London on 4th August 2011 at which Mr Gunner was present. Mr Kenwright and Mr Gunner give similar accounts of the meeting. They say that the purpose of the meeting was to discuss the Defendant’s failure to fulfil its obligations in relation to “Jekyll and Hyde” and Mr Lickrish apologised for the problems which had occurred, and indicated a willingness to make amends by making a payment to the Claimant. Mr Gunner’s evidence is that Mr Lickrish said he would prefer any settlement sum to be labelled as a ‘retainer’ rather than as a settlement agreement because Mr Judd had been fired from the Defendant and people were in danger of losing their jobs as a result of the “Jekyll and Hyde” situation. The details of the compensation to be paid were left to be resolved through further discussion. Mr Lickrish denies this account. He says he was taken by surprise by the complaint and "did a lot of listening" but made no apology.[19]In my judgment, Mr Kenwright and Mr Gunner’s account of the meeting is much more plausible than Mr Lickrish's account for the following reasons. First, it seems doubtful that Mr Lickrish was in fact surprised at the subject matter of the meeting given the evidence that he was aware that Mr Kenwright was not happy with what he saw as the Defendant’s failure to comply with its obligations in relation to “Jekyll and Hyde” (see above); and it is more natural to suppose that the meeting involved discussing a solution to their differences, rather than identification of a problem for the first time. Second, Mr Gunner’s evidence as to Mr Lickrish’s suggestion of any settlement being called a ‘retainer’ is striking and has the ring of truth about it. It stands to reason that, if Mr Lickrish felt his employees might be vulnerable to criticism from its parent company, a subsidiary of the Government of Abu Dhabi, he might well wish to want to draw a veil over the problem and utilise the fig leaf of calling any settlement a ‘retainer’. Third, it is telling that after the meeting Mr Kenwright sent Mr Gunner an email saying that it seemed: " … pointless that he [Mr Lickrish] should make an offer which might require Board approval, so why don't you [Mr Gunner] get back to me when everyone has signed up to a proper compensation package".[20]Accordingly, in my view, there are compelling reasons to suggest that the outcome of the meeting of 4th August 2011 was that Mr Lickrish agreed in principle that the Defendant would pay compensation to the Claimant and Mr Gunner was to sort out the details of a settlement package.[21]What transpired subsequently is consistent with this picture. Mr Lickrish sent an email to Mr Gunner dated 12th October 2011 in which he proposed payment by the Defendant to the Claimant of "150k this year 150k in the January of 2012 and 150k for 2013 as a retainer to develop the theatre season plus fees per event that we produce each year", i.e. making a total of £420,000 spread over three years. Mr Gunner then forwarded this email to Mr Kenwright, with a covering email in which he said:
"The retainer concept which John [Lickrish] is suggesting would I think … not be publicised, and would not require you to do anything other than talk to me …"
. Mr Kenwright’s response on 13th October is instructive and compelling: "Obviously the “retainer” idea is, as we thought might happen, to get Flash off the hook. It truly doesn't sit well with me as I'd rather have the truth, and a cheque in settlement. … However … If people are in danger of losing their jobs over this, then a part of me understands".[22]On 13th October 2011, Mr Kenwright responded with a counter-offer demanding an immediate payment of £200,000 and then two further sums in 2012 and 2013 of £150,000 each, making a total of £500,000. On 16th October 2011, Mr Gunner forwarded this counter-offer to Mr Lickrish.[23]On 4th November 2011, a telephone conversation took place between Mr Kenwright (in England) and Mr Lickrish (in Abu Dhabi). The fact that a telephone call took place is not in dispute. Mr Kenwright says that during the call Mr Lickrish accepted the revised offer terms put forward by him on 13th October 2011 and asked that the Claimant provide two invoices, one which stated "Jekyll and Hyde Abandoned Seasons in Abu Dhabi", and the other stating "For Theatre Consultancy services in accordance with our discussions".[24]Mr Lickrish's account of the telephone call of 4th November 2011 is nuanced but not inconsistent with the Claimant’s case. He accepts that he asked Mr Kenwright to "send me the invoices" (plural) during the telephone call, but says that the idea of framing any proposal as a retainer came from Mr Gunner. This leaves unexplained why there should be two invoices. The most logical explanation is, in my view, that provided by the Claimant, namely that they were to get the Defendant ‘off the hook’.[25]On 4th November 2011, the Claimant’s finance director, Alan Sharp, sent two invoices to Mr Lickrish. The first was headed “Jekyll and Hyde Abandoned Seasons in Abu Dhabi” and the second “For Theatre Consultancy services in accordance with our discussions”. Both invoices were for £500,000, with £200,000 to be due on receipt, £150,000 on 9th January 2012 and a further £150,000 due on 9th January 2013. This was consistent with Mr Kenwright’s counter offer of £500,000 to be paid in three tranches (see above). It is telling that Mr Lickrish acknowledged their receipt without demur in his e-mail of 4th November 2011 which read simply “Regards”.[26]Mr Lickrish forwarded Mr Sharp’s e-mail to the Defendant’s Finance Director, Nabih Bouery, and emailed on 6th November 2011 as follows:
“Let’s discuss … I don’t believe we had any contract nor any documentation for these events but they are claiming that [Mr Judd] approved these shows and they incurred 1m BP in cost”
. The Defendant submits that Mr Lickrish’s email is inconsistent with any settlement agreement having been reached on 4th November 2011. At best it is Mr Lickrish simply stating he believes there were no binding contracts concluded. At worst it is Mr Lickrish telling Nabih Bouery what he preferred her to hear.[27]Mr Gunner was not involved in the telephone call of 4th November 2011. In my view, his subsequent e-mails dated February 2012 are necessarily inconsistent with the idea that any Settlement Agreement was concluded on 4th November 2011.

Mr Kenwright’s diary entries

[28]The Claimant’s case on the facts and narrative is strongly supported by the contemporaneous documents, in particular Mr Kenwright’s contemporaneous diary entries, viz. in particular:(1) 13th July 2011: “John Lickrish – - +971505 260110 – Told him situation: will ring tomorrow.”(2) 14th July 2011: “John Lickrish – Accepts faults here and liability – can’t do it in September.As can’t advertise in Ramadan – and would play to no audiences.Will work out settlement with Rod. Very apologetic. “This isn’t the way that Flash does things.””(3) 4th August 2011: “Rod Gunner – John suggesting $500-350k. I said not enough.Rod thinks it needs to be dressed up as some kind of consulting agreement.I said that wouldn’t fit really well.”(4) 16th August 2011: “Rod Gunner – John Lickrish wants Rod to come up with a way to ‘make it work creatively’ i.e. not let his bosses know the company has fucked up.”(5) 4th November 2011: “John Lickrish - +971 505 260 110 Re Jekyll – 260 per week i.e. £780 + 260 = £1040.May Enquiry – June Deal – (August 4)// was in [?] rehearsals. Sorry I didn’t call you earlier –so you are asking for 500k for your costs. john@thinkflas.ae No I am asking for ½ of what I’m owed. Agreed payment from next Wednesday. Send invoice. Summary[29]For the above reasons, in my judgment, it is clear that the Claimant has “the much better argument” on the evidence as to the existence of the Settlement Agreement. I am satisfied on the evidence that the Claimant succeeds in proving its case to the requisite standard.

(B) Gateways

[30]The Claimant relies upon three jurisdictional gateways:(i) gateway 3.1(6)(a) (a contract made within the jurisdiction);(ii) gateway 3.1(6)(c) (a contract governed by English law); and/or(iii) gateway 3.1(7) (a contract breached within the jurisdiction). (i).

(a) )

[31]It is trite law that, where a contract is concluded by instantaneous communications such as a phone call:(a) the contract is only complete when the acceptance is received by the offeror; and(b) the contract is made at the place where the acceptance was received (c.f.Entores LD. v Miles Far East Corporation [1955] 2 Q.B. 327).[32]I am satisfied that the Claimant has satisfied this gateway PD6B 3.1(6)(a)to the requisite standard in the present case. As set out above, during the telephone call of 4th November 2011 between Mr Lickrish (in Abu Dhabi) and Mr Kenwright (in England), Mr Lickrish accepted Mr Kenwright’s counter offer made in London on 13th October 2011 and agreed to pay £500,000 compensation to the Claimant. Accordingly, this is a classic example of the application of the rule in Entores v. Miles.[33]The Claimant therefore succeeds on its first gateway and it is not necessary to go to consider the other gateways, but I do so briefly in deference to counsels’ arguments. (ii).

(c) )

[34]The relevant provisions are those contained in the Rome 1 Regulation, Article 4. Absent express choice of law, the governing law of a contract is that of the country with which it is most closely connected. Where a contract is not covered by Article 4(1) of Rome I, the closest connection for the purpose of the governing law of a contract is presumed to be that of the country where the party required to effect the “characteristic performance” of the contract has habitual residence (Article 4(2), Rome I). The presumption is displaced in a case where it is clear from all the circumstances that a contract is more closely connected with a country other than that indicated (Article 4(3)). Where the applicable law cannot be determined under Article 4(1) or (2), the contract shall be governed by the law of the country with which it is most closely connected (Article 4(4)).[35]Ms Kagan for the Defendant submits that the matter is governed by Article 4(2) of Rome I (Regulation (EC) No. 593/2008) and that the “characteristic performance” of the (alleged) Settlement Agreement was the payment of the settlement amounts by the Defendant and, accordingly, the governing law was the law of the United Arab Emirates where the Defendant has its habitual residence.[36]Mr Johnson for the Claimant submits that the matter is governed by Article 4(3) of Rome I and that the “characteristic performance” of the Settlement Agreement was not the payment of the settlement amount by the Defendant but the forbearance by the Claimant not to sue, and the governing law was the law of England because the contract was “manifestly more closely connected” with England. He submitted that:(i) the Guiliano-Lagarde Report origins of Rome I (and its precursor the Rome Convention) established as a general rule that the characteristic performance of a contract was not the mere payment of money but the performance for which payment was due; and(ii) a negative obligation may in principle be characteristic, such as an obligation by one party not to exploit its trademarks in competition with those of another party (Apple Corps Ltd v Apple Computer Inc [2004] 2 CLC 720; [2004] EWHC 768 (Ch) at [53]).[37]In my judgment, however, where as here one is concerned with a ‘vanilla’ settlement agreement, i.e. the mere payment of money by A to discharge a debt or sums due by way of compensation to B with no obligation on B save for forbearance to sue, the “characteristic performance” of the settlement agreement may properly to be regarded as the payment of money.[38]However, in the present case, the presumption is weak and displaced by the fact that the Settlement Agreement is more closely connected with England than Abu Dhabi, in particular because the key meetings and negotiations took place in England at Mr Kenwright's offices and the invoices provided for payment in England. (iii). Claim made in respect of a breach of contract committed within the jurisdiction (Practice Direction 6B, paragraph 3.1(7))[39]In my view, for the reasons given above, English law is the putative proper law of the Settlement Agreement (and it is not necessary to consider the expert evidence on UAE law). Under English law "it is the duty of the debtor to seek out their creditor at their residence or place of business” (see the Notes in the White Book at para. 6.37.41 (Vol. 1, p. 305)). In any event, the invoices provided for payment by the Defendant to be made to the Claimant’s bank account in England. Accordingly, any breaches by the Defendant to pay were made in England.

(C) Forum Conveniens

[40]In my view, England is the natural forum for these proceedings on the Settlement Agreement (c.f. Lord Goff in Spiliada Martime Corp. v.Cansulex [1987] AC 460 and Dicey, Morris & Collins at paras. 12-029ff) for three main reasons.[41]First, availability of witnesses. The central issue in the case will be as to whether a binding Settlement Agreement came into existence. This will turn principally on the witness evidence of Mr Kenwright, Mr Gunner and Mr Lickrish. The former two gentlemen are both resident in England and Mr Lickrish, although resident in Abu Dhabi, travels frequently to England for business "doing the rounds" as he puts it.[42]Second, the negotiations took place in English and the correspondence and documents are in English. Article 4 of the UAE Code of Civil Procedures (“Federal Law no.11 for the year 1992”) provides as follows:
“The language of the courts is Arabic, and the courts must hear the statements of the parties or witnesses or others who do not know Arabic through an interpreter after he has taken the oath, unless he has been sworn in upon his being appointed or upon his being licensed as an interpreter.”
[43]Thus, if proceedings were commenced in the UAE, it would be necessary to have the witnesses’ evidence and the documents translated into Arabic, with all the attendant extra costs and complexity. A case which turned on the evidence of English witnesses would be better conducted before a court which had English as its first language.[44]Third, the Settlement Agreement is governed by English law (see above) and it would be best to have matters of English Law determined by an English court. In my view, UAE law will have little role to play in any trial because questions of Mr Judd's actual or ostensible authority are not germane to the key issues in relation to the existence of the Settlement Agreement. In my view, Article 10 of Rome I is not engaged.[45]Accordingly, the Claimant succeeds in demonstrating that England is the forum conveniens (natural forum).

(D) Alternative and ‘deemed’ service

[46]Ms Kagan on behalf of the Defendant submits that Senior Master Fontaine’s Order for Alternative Service dated 27th October 2015 and related orders extending time for service should be set aside:(a) because there was no good reason for an order for alternative service; and(b) the court did not have the power to deem service to be effective two business days after posting.

Alternative service

[47]The issue is whether there was "good reason" within CPR 6.15, for an Order permitting service by an alternative method, i.e., by registered mail. In my view, Senior Master Fontaine was justified in finding that there was “good reason” to effect alternative service of these proceedings and entitled to order service on the Defendant on its Khalifa Park address in the UAE for the following reasons.[48]First, the risk of serious delay. There was evidence from the Claimant’s UAE lawyer and indications from the Foreign Process Section at the Royal Courts of Justice that service in the UAE via diplomatic channels under the Service Treaty between the UK and the UAE would take up to eight months. Ms Kagan submits that the delay would only be three months. However, I am satisfied that Senior Master Fontaine was entitled to assume the longer period and regard it as inordinate delay in the context of the case.[49]Second, the Defendant was aware of the dispute but said in its letter dated 23rd August 2012 that it would not accept service by fax or email, although proceedings could be served on its Khalifa Park address: "Should you decide to issue proceedings before providing us with adequate details of your claim, you should note that Flash does not accept service of documents by email or fax. Our address is Flash Entertainment, Building 2, Floor 3, twofour 54 Media Zone, Khalifa Park, PO Box 77828, Abu Dhabi, United Arab Emirates. Packages should be marked for the attention of the Legal Department".[50]Third, service by registered post is not contrary to UAE law.[51]Fourth, I am satisfied that there was no inordinate delay on the part of the Claimant prior to or post the issue of proceeding for the reasons given by Mr Watts in his second witness statement.[52]I am also satisfied that the Claimant made proper attempts to serve the proceedings on the Defendant at the Khalifa Park address (as evidenced by the Emirates Post ‘Track and Trace’ Documents) and that in any event, copies of the Claim Form, Particulars of Claim and relevant Orders were sent to Flash's General Counsel under cover of a without prejudice email on 6th November 2015 and further copies (including Senior Master Fontaine's Order) were provided on 5th January 2016.[53]Ms Kagan relied upon Deutsche Bank v Sebastian Holdings [2014] EWHC 112 and Knauf UK GmBH v British Gypsum Ltd [2002] 1 WLR 907 to suggest that:(i) the service treaty must therefore represent the prime way of service (Deutsche, para.27);(ii) service otherwise than in accordance with the service treaty must be permitted only in special circumstances, otherwise, the service treaty would be subverted (Deutsche, para. 27); and(iii) matters of convenience and speed will not constitute a good reason for an order for alternative service and, in particular, delay caused by following service treaty processes will not constitute a good reason (Knauf, paras 28-31).[54]It is clear that the existence of a Service Treaty is relevant to the court’s discretion as a matter of comity and must be taken into account when considering whether there is good reason to make an order for alternative service. However, the matter is not immutable. In my view, both Deutsche and Knauf are clearly distinguishable from the present case. In Deutsche, unlike the present case,it was not suggested that the delay there to service would be significant in the context of the proceedings. In Knauf, unlike the present case,there was evidence that the claimant was trying to steal a march in order to gain priority under the Brussel’s Convention by serving using a quicker method than that provided for by Treaty. The application for alternative service in the present case was not characterised by a mere desire for speed but included proof of lengthy delay in the context of the case if the Service Treaty method was used.[55]Finally, I am satisfied that the Defendant has been aware of these proceedings for a long time and engaged London solicitors and it would be pointless, and not in accordance with the overriding objective, to make the Claimant re-serve proceedings of which the Defendant was already entirely cognisant.

Deemed service

[56]Ms Kagan for the Claimant takes a further point, namely that Court has no power to make an order for ‘deemed service’ in cases which involve service out of the jurisdiction. Ms Kagan relies upon CPR 6.35, 6.37 and 6.47 and submits in summary as follows:(i) The source of the court’s power to prospectively permit alternative service and retrospectively to validate alternative service in a service out case is CPR 6.37(5)(b) which provides that the court “may give directions about the method of service”.(ii) When the court does so, it is also required to specify the periods in which the defendant may file an acknowledgment of service, an admission or a defence, in accordance with the table in Practice Direction 6B: CPR 6.37(5)(a).(iii) CPR 6.37(5) is a self-contained code for service out. Ms Kagan also relies upon various parts of the commentary in CPR6:
“[6.35.2] In this rule [CPR 6.35, period for responding to the claim form where permission was not required for service out], and in para. 6 of Practice Direction 6B, the response periods are fixed as a certain number of days ‘after service’. Where a document is served within the jurisdiction, it is deemed served on a day as calculated in accordance with r.6.14 and r.6.26. Where a document is served out of the jurisdiction, those deeming provisions do not apply.” (Emphasis added.)
[6.47 and 6.47.1] “Rule 6.47 [Proof of service before obtaining judgment] … prevents a claimant from taking further steps against a defendant served with a claim form out of the jurisdiction, until the claimant files written evidence showing that such service has been duly effected”. [6.47.1] The principle is that when service takes place out of the United Kingdom there is no deemed service, so written evidence of service must always be filed in such cases whether there is a fixed date or not”. (Emphasis added.)[57]The short answer to Ms Kagan’s point is that the court’s power in CPR 6.37(5)(b)(i) to "give directions about the method of service" in cases involving service out of the jurisdiction includes the power or discretion conferred by CPR 6.15 to specify service “by an alternative method”.[58]Contrary to Ms Kagan’s submission, Senior Master Fontaine granted the Claimant an order for service “by an alternative method” pursuant to CPR 6.15, not CPR 6.37(5)(a). Senior Master Fontaine’s Order dated 27th October 2015 provided that service by the alternate method (i.e. by registered post to the Defendant’s Khalifa Park address) was to be “deemed” served on the second business day after posting and the Defendant had 22 days after service to file its Acknowledgement of Service.[59]CPR 6.15 provides as follows:
“Service of the claim form by an alternative method or at an alternative place 6.15 – (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. (3) An application for an order under this rule – (a) must be supported by evidence; and (b) may be made without notice. (4) An order under this rule must specify – (a) the method or place of service; (b) the date on which the claim form is deemed served; and (c) the period for – (i) filing an acknowledgment of service (ii) filing an admission; or (iii) filing a defence.” (i) filing an acknowledgment of service (ii) filing an admission; or (iii) filing a defence.”
[60]It is settled that the provisions in CPR 6.15 dealing with service “by an alternative method” apply to cases involving service out of the jurisdiction (Abela v. Baadarani [2013] 1 WLR 2043; and White Book at 6.40.5). Lord Clarke said at [20]:
“ The judge was to my mind correct to hold in para 71 that, just as the power under rule 6.15(I) prospectively to permit alternative service in a service out case is to be found in rule 6.37(5)(b)(i) or is to be implied generally into the rules governing service abroad (because that must have been the intention of the drafter of the 2008 amendments to CPR Pt6), so rule 6.37(5)(b)(i) is to be construed as conferring the power, via rule 6.15(2), retrospectively to validate alternative service in such as case, or such a power is to be implied generally into the rules governing service abroad.”
[61]CPR 6.15(4)(b) expressly requires an order for alternative service to specify "the date on which the claim form is deemed served". It follows the Court must have the power to include a deeming provision since otherwise any order would be defective.[62]Ms Kagan misunderstands the scope of CPR 6.47. CPR 6.47 requires that "written evidence that the claim form has been duly served in accordance with this Part". "This Part" is a reference to CPR Part 6, which includes CPR 6.15. In my judgment, the requirements of CPR 6.47 are clearly satisfied if written evidence is produced which shows that such steps as the Court may have specified under CPR 6.15 have been complied with. In such a case, the claim form will have been "duly served in accordance with this Part".[63]CPR 6.15(1) provides that the power to order service “by an alternative method” is exercisable where there is a "good reason" to do so. Proof that a defendant is seeking to evade service may be good reason (c.f. Abela at [38]-[39]). In such cases, it will ex hypothesi be difficult or impossible for the claimant to show that actual service has taken place.[64]Lord Clarke said at [23] of Abela(supra) that an appellate court should only interfere with a decision of a lower court under CPR 6.15 if satisfied that the judge erred in principle or was wrong to reach the conclusion that he did. In my view, for the reasons given above, Senior Master Fontaine had jurisdiction to make the order for “deemed service” and I am satisfied that her decision was not wrong.

Conclusion

[65]For the reasons given above, the Defendant’s various challenges to service of proceedings are all dismissed. In my judgment, the Claimant’s service upon the Defendant out of the jurisdiction in Abu Dhabi was good service.

Postscript

[66]The distinguished editors of the White Book (which include Senior Master Fontaine) may wish to revisit CPR Part 6 in order to clarify any confusion that some readers might find between the notes to CPR 6.15, 6.35, 6.37 and 6.47.

Cited in 9 later judgments