Koza Ltd and Akin Ipek v Mustafa Akcil and Ors
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 26 February 2018 |
| Neutral Citation | [2018] EWHC 384 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No HC-2016-002407 |
| Date | 26 February 2018 |
[2018] EWHC 384 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (CHD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Richard Spearman QC
(sitting as a Deputy Judge of the Chancery Division)
Claim No HC-2016-002407
Siward Atkins (instructed by Gibson Dunn & Crutcher LLP) for the Claimants
David Caplan (instructed by Mishcon de Reya LLP) for Mischon de Reya LLP
Hearing dates: 26 th February 2018
Richard Spearman Q.C.:
On 22 December 2017, the claimants in these proceedings issued an application seeking the following orders: first, that eight new parties be added as defendants to this claim; secondly, for permission to serve the amended claim form and amended particulars of claim in the forms attached to the application notice on the new parties; and, thirdly, that service of the application and, if permission to amend is granted, the amended claim form and the amended particulars of claim on the new parties be permitted (i) by service on the solicitors for the existing defendants in the proceedings, Mishcon de Reya LLP (“Mischon de Reya”), or, in the alternative, (ii) by postal channels on the proposed 7th defendant only and by service on Mishcon de Reya in respect of the proposed 8th to 14th defendants.
The proposed 8th to 14th defendants were directors of Koza Altin, which is the first defendant in these proceedings, and the immediate holding company of the first claimant, Koza Limited.
The proposed 7th defendant, which is known for short as the SDIF, is an organ of the Turkish State, and it has caused those individuals to be appointed as directors of Koza Altin.
Only part of the third limb of the relief sought by the application notice is before me today, namely that permission be granted to serve the application itself on the proposed eight new parties by alternative means. The grounds upon which that aspect of the relief is sought are identified in the application notice at paragraph 3, as follows:
“Mishcon acts for the 8th to 14th defendants, and in substance for the 7th defendant as well; if that is not correct, however, service via postal channels on the 7th defendant should be permitted, as it has previously accepted documents via such means.”
The application was made pursuant to CPR 6.15(1) which provides:
“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.”
Since the application was issued there have been a number of developments. In addition to an exchange of correspondence and of witness statements, those developments in summary and principally are as follows.
First, three of the proposed new defendants, that is to say the proposed new defendants numbered 9, 12 and 14 have ceased to be members of the board of Koza Altin, and accordingly the application is no longer pursued so far as those three individuals are concerned.
Second, Mishcon de Reya are now instructed by the remaining proposed individual defendants, numbered 8, 10, 11 and 13 on the original list, and service on Mishcon de Reya so far as concerns those defendants has been, or will be, effected by service on that firm as the solicitors now acting for them within this jurisdiction without the need for any order.
Third, as set out in paragraph 6 of the fifth witness statement of Mr Rocher of the claimants' solicitors, dated 22 February 2018, delivery of the application notice and relevant supporting documents has been effected as a matter of fact on the SDIF, at an address in Turkey given in that paragraph of his witness statement on 3 January 2018. The relevant cover letters and proof of delivery receipts from the courier company (relating not only to delivery to the SDIF but also to the other proposed new defendants) are exhibited to that witness statement.
Mr Siward Atkins, who appeared before me for the claimants, indicated that in light of that third development he would seek permission to amend the application notice and the order sought, to seek an order in the alternative pursuant to CPR 6.15(2), which provides:
“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.”
In the result, Mr Atkins proposed, first, that the court should order that service on the SDIF by service on the London offices of Mishcon de Reya should be permitted as an alternative means of service on the SDIF; secondly, that an order should be made under CPR 6.16(2) to treat the delivery of the relevant documents that has taken place at the offices of the SDIF as being good service of the documents on the SDIF; and, thirdly, an order for alternative service at the same address in Turkey, by the same means as on his clients' evidence has already been effected to provide notification to all the proposed new defendants, namely by private courier or by post. Then, lastly, and in the course of the hearing, for an order to the effect that service on the directors of Koza Altin by service on the solicitors who now act for those directors in these proceedings, Mishcon de Reya, at the London offices of those solicitors, should be treated as service on the SDIF. The details of that last way of putting the application were not articulated in any final written form during the course of the hearing, but that was the thrust of the submission, as I understood it to be.
Neither any of the existing defendants nor any of the proposed new defendants appeared before me or were represented in front of me. However, Mr David Caplan of counsel appeared on behalf of Mishcon de Reya and made written and oral submissions on behalf of that firm.
Mr Atkins addressed first the question of whether CPR 6.15(1), and for that matter CPR 6.15(2), both of which refer, on the face of it, to a claim form, applied to the application notice in the present case, and his submissions in this regard are encapsulated in paragraphs 4 onwards of his skeleton argument.
On that first question of whether the rule applies to an application notice as well as a claim form, he referred to two provisions. First, CPR 6.2(c), which provides that an application made before action or to commence proceedings should be construed as a claim or as a claim form for the purposes of the rule. He submitted that an application to join new parties is a pre-action application against them for the purposes of the definition in CPR 6.2(c). It is made before proceedings have started, so far as they are concerned. Its purpose is to commence proceedings against them. Therefore it is a claim form for the purposes of CPR 6.15(1). Second, he submitted that, in any event, CPR 6.27 extends the application of CPR 6.15(1) to service of an application notice, and provides that CPR 6.15:
“Applies to any document in the proceedings as it applies to the claim form and reference to the defendant in that rule is modified accordingly.”
I accept those submissions, both of which seem to me to be correct, and either of which, if right, will suffice for the purposes of the submission that CPR 6.15 applies to the application notice in the present case as well as to a claim form.
Next, Mr Atkins addressed the issue of whether CPR 6.15 applies to a service out case like the present. His submissions, in summary, are, first, that it is clear that CPR 6.15 applies to a case where service out of the jurisdiction is not required, because it falls within that part of CPR 6 which applies to cases of service within the jurisdiction; and, second, that it is clear on the authorities that CPR 6.5 applies to cases where service out of the jurisdiction arises and where permission to serve out is required, and for that submission he relied principally on the decision of the Supreme Court in Abela v Baadarani [2013] 1 WLR 2043 [19] and [20].
The thrust of his argument, more fully set out in paragraphs 5 to 9 of his skeleton argument, is that, given that CPR 6.15 applies to cases involving service in the jurisdiction, and also to cases involving service out of the jurisdiction where permission to serve out is required, it would be anomalous, surprising, and without any clear logical foundation if the rule did not extend also to cases for service out where permission is not required. He relied in particular on the judgment of Lord Clarke in Abela at [20], where Lord Clarke stated that the power to apply CPR 6.15 and permit alternative service in a service out case is to be found in rule 6.37(5)(b)(i) or “is implied generally into the rules governing service abroad (because that must have been the intention of the drafter of the 2008 amendments to CPR 6)”.
Mr Atkins submits that it is unnecessary to rely upon CPR 6.37(5)(b)(i) as the source of the power to extend CPR 6.15 to cases for service out where permission is not required. It is one gateway to the exercise of that power, but it is not the only source of that power, and there is a general implication in the rules to the effect that the power can be exercised in cases of service abroad.
I think that Mr Atkins needed to make that submission, because CPR 6.37(5)(b)(i) is confined to cases where the court has given permission to serve a claim form out of jurisdiction, as the introductory words of sub-paragraph (5) make clear.
Mr Atkins also referred me to a decision of Mr David Foxton QC sitting as a deputy judge of the High Court in Marashen Limited v Kenvett Limited [2018] 1 WLR 288, as effectively following that...
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