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Retrospective orders in relation to service out of the jurisdiction

In Abela & Others v Baadarani [2013] UKSC 44 the SC was concerned with the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service.

In April 2009, C brought a claim a claim for damages for fraud against D in connection with a contract to purchase shares in an Italian company that were either worthless or were worth significantly less than the purchase price.

The contract expressly provided that it was governed by English law.

In September 2009, C was granted permission to personally serve the claim form upon D at an address in Beirut, Lebanon. The time for service of the claim form was extended to the 31st of December 2009.

After 4 consecutive days of attempted service it became apparent that D could not be traced.

In October 2009, the claim form was served on D’s lawyer, in Beirut. The lawyer gave evidence that he had not been given instructions to accept service of documents on behalf of D in this matter.

In April 2010, C was granted another extension of time for service of the claim form and was also granted permission for alternative means of service - on D’s English solicitors OR Lebanese, which was effected in May 2010.

Sir Edward Evans-Lombe declared that the steps taken in October 2009 constituted good service of the claim form. His decision was reversed by the CA, which held that the various orders granting extensions of time for service of the claim form should not have been granted.

The SC allowed C’s appeal unanimously. Delivering the leading judgment, Lord Clarke considered the judge’s decision to make the order under 6.15(2) had been appropriate.

The most important purpose of “service” is to ensure that the contents of the document served are communicated to the D. The judge had had regard to the fact that service through diplomatic channels in Lebanon had proved impractical and that any attempt to pursue it further would lead to unacceptable delay and expense. The judge also noted that D had been unwilling to co-operate by refusing to disclose his address in Lebanon. Whilst he may not have been under a duty to disclose his address, his refusal to co-operate was ‘a highly relevant factor’ in deciding the issue.

Further, even though there had been a 3.5 month delay between the issue of the claim form and an application for an order under 6.15(2), and even though the claim may have been time barred, the judge had been entitled to make his order.

‘The critical points were that the documents were delivered within the 6 months’ validity of the claim form and brought to D’s attention and that service via diplomatic channels had proved impracticable.’

'The full version of this article will appear in the New Law Journal in August'.

Bernard Pressman / 1st Aug 2013


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