Summary

The wording of the CPR r.6.37(5)(b) was wide enough to confer jurisdiction on a court to order service by alternative means in respect of service out of the jurisdiction provided the court had a good reason to do so.

Facts

The court was required to determine whether a claim form and particulars in a claim brought by the claimant metal brokers (X) against the defendant (B) had been properly served on B in Peru. It was X's case against B that he had made a number of fraudulent misrepresentations as to the solvency of a company to whom X had afforded facilities. It was alleged that, in consequence of that company's subsequent insolvency, X had suffered substantial losses. Consequently, X obtained permission to serve a claim form and particulars on B in Peru. According to Peruvian Civil Procedure Code, all notifications of judicial documents had to be performed by the Judiciary Office of Notifications by means of written notices personally delivered to the recipient. In the event, X instructed a Peruvian process server to serve the documents on B. There was a dispute of evidence as to whether service was ever properly effected by the process server and B applied for relief under CPR Pt 11. X submitted, inter alia, that (1) unless a method of service was specifically prohibited by the law of the State in which service was effected, a claimant could employ any method he chose; (2) in the event that service was bad, X should be permitted to serve its claim form on B's solicitors in London pursuant to r.6.15. B contended that (1) the purported service did not comply with Peruvian law and, as such, was not a permitted method of service pursuant to r.6.40(3)(c); (2) since the coming into force of the Civil Procedure (Amendment) Rules 2008 there was no power to order service by alternative means on a party upon whom ordinary service would be governed by Pt 6 (IV).

Held

(1) Given the mandatory wording of the relevant Peruvian Civil Procedure Code, service had to be effected in the prescribed form. The fact that "long arm" jurisdiction was being exercised from the United Kingdom could not, without more, give right to a claimant's imagination in deciding how to effect service in another jurisdiction; the right to effect service overseas had always been the creature of express procedural rule as opposed to procedural custom. Whilst it was open for a claimant to lead evidence to the effect that the State in which service was said to have been effected permitted such service by conduct that was not express, a claimant could not say that where a state expressly provided for methods of service within its jurisdiction but did not expressly provide that service by other means was illegal then it was to be inferred that service by other means was permitted for the purposes of r.6.40(3)(c), Arros Invest Ltd v Nishanov (2004) EWHC 576 (Ch), (2004) ILPr 22, Habib Bank Ltd v Central Bank of Sudan (2006) EWHC 1767 (Comm), (2007) 1 WLR 470 applied and Shiblaq v Sadikoglu (Application to Set Aside) (No2) (2004) EWHC 1890 (Comm), (2004) 2 All ER (Comm) 596 considered (see paras 27-28, 39 and 40 of judgment). (2) The power to order alternative service under r.6.15 was limited to service in the jurisdiction: it did not purport to help with problems in respect of service otherwise governed by Pt 6 (IV), Habib and Brown v Innovatorone Plc (2009) EWHC 1376 (Comm), (2010) 2 All ER (Comm) 80and General Medical Council v Balouch (2010) EWHC 1380 (Admin) applied. However, the wording of r.6.37(5)(b)(i) was wide enough to confer jurisdiction on a court to order service by alternative means in respect of service out of the jurisdiction: it being impossible to contemplate a regime for service out of the jurisdiction without the power to order service by alternative means in appropriate cases, Marconi Communications International Ltd v PT Pan Indonesia Bank TBK (2004) EWHC 129 (Comm), (2004) 1 Lloyd's Rep 594 considered. However, it was not appropriate for the court in the instant case to exercise the power. X had failed to show good reason why the court should so exercise its power, (paras 64-68, 79-83 and 90-96).

Judgment for defendant.