Olafsson v Gissurarson
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Dyson,Jacob L JJ. |
| Judgment Date | 03 March 2008 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 March 2008 |
Court of Appeal (Civil Division).
Sir Anthony Clarke MR, Dyson and Jacob L JJ.
Hugh Mercer (instructed by Olswang Solicitors) for the claimant.
Jasbir Dhillon (instructed by Eversheds LLP) for the defendant.
The following cases were referred to in the judgment:
Anderton v Clwyd County Council (No. 2)UNK [2002] EWCA Civ 933; [2002] 1 WLR 3174.
Barclays Bank of Swaziland Ltd v HahnUNK [1989] 2 All ER 398; [1989] 1 WLR 506.
BAS Capital Funding Corp v Medfinco LtdUNK [2003] EWHC 1798 (Ch); [2004] 1 Ll Rep 652.
Chare v FaircloughUNK [2003] EWHC 180 (QB). Cherney v DeripaskaUNK[2007] EWHC 965 (Comm). Collier v WilliamsUNK[2006] EWCA Civ 20; [2006] 1 WLR 1945. Cranfield v Bridgegrove LtdUNK[2003] EWCA Civ 656; [2003] 1 WLR 2441. Dresser UK Ltd v Falcongate Freight Management Ltd (The Duke of Yare)ELR[1992] QB 502.
Godwin v Swindon Borough CouncilUNK [2001] EWCA Civ 1478; [2002] 1 WLR 997.
Golden Ocean Assurance Ltd v Martin (The Goldean Mariner)UNK [1990] 2 Ll Rep 215.
Hagen, TheELR [1908] P 189.
Hashtroodi v HancockUNK [2004] EWCA Civ 652; [2004] 1 WLR 3206. Isabelle Lancray SA v Peters und Sickert KGECAS (Case C-305/88) [1990] ECR I-2725.
Klomps v MichelECAS (Case 166/80) [1981] ECR 1593.
Knauf UK GmbH v British Gypsum LtdUNK [2001] EWCA Civ 1570; [2002] CLC 239; [2002] 1 WLR 907.
Kuenyehia v International Hospitals Group LtdUNK [2006] EWCA Civ 21.
Molins plc v GD SpAWLR [2000] 1 WLR 1741.
Nussberger v PhillipsUNK [2006] EWCA Civ 654; [2006] 1 CLC 819; [2006] 1 WLR 2598.
Phillips v SymesUNK [2008] UKHL 1; [2008] 1 CLC 29.
Scania Finance France SA v Rockinger Spezialfabrik fur Anhangerkupplungen GmbH & CoECAS (Case C-522/03) [2005] ECR I-8639. Shevill v Presse Alliance SAECAS (C-68/93) [1995] ECR I-415.Shiblaq v SadikogluUNK[2004] EWHC 1890 (Comm); [2005] 2 CLC 380. Wilkey v BBCUNK[2002] EWCA Civ 1561; [2003] 1 WLR 1.
Service out of jurisdiction — Dispensing with service — Limitation period — Lugano Convention — Defamation claim against Icelandic defendant — Attempted service in Iceland through consular channels not in accordance with Icelandic law because defendant did not sign declaration of receipt — Exceptional case in which court should exercise discretion to dispense with service — Where justice required order dispensing with service in Lugano Convention case, to ensure that domestic time bar would not defeat claim, no reason why court should not make order sought in exceptional case — UK and Iceland not both parties either to Hague Convention or any other relevant bilateral treaty or convention — Convention provisions permissive not mandatory — Dispensing with service did not subvert Convention — Lugano Convention, art. 5(3), First Protocol, art. IV — Civil Procedure Rules 1998, r. 6.9, 6.19(1), 6.24(1)(a).
This was an appeal by the defendant from an order under CPR 6.9 dispensing with service of the claim form.
The claimant was an Icelandic businessman. The defendant was a professor of political science at the University of Iceland and domiciled in Iceland. The basis of the claim was the alleged publication on the defendant's website in England of defamatory material relating to the claimant. Iceland was a party to the Lugano Convention and the English court had jurisdiction under art. 5(3).
The claimant's solicitors took steps to have the claim form served on the defendant in Iceland, making a request to the High Court on the prescribed form. The relevant documents were served in Iceland by a member of the consular staff. The defendant received, read and retained the documents. However the documents were not served on the defendant in accordance with Icelandic law because he was not asked to and did not sign any written receipt for them.
The defendant did not acknowledge service and the claimant obtained judgment in default. On the defendant's application to set aside the judgment, the issue arose as to whether an order could and should be made under CPR, r. 6.9 dispensing with service of the claim form. The judge held that the court had jurisdiction to make an order dispensing with service of the claim form under r. 6.9, that it should only do so in an exceptional case but that this was an exceptional case.
The defendant submitted that the judge was wrong to make an order under r. 6.9: the time for service of the claim form had expired and it was not appropriate to exercise the discretion to implead a foreign defendant by dispensing with service of the claim form thereby retrospectively validating the claim.
Held, dismissing the appeal:
1. This was an exceptional case. In the circumstances, it had been understandable for the claimant and his solicitors to think that the claim form had been served in accordance with Icelandic law, even though it had not. This was a case in which the claimant made an ineffective attempt in time to serve a claim form by a method allowed by the rules. Personal service was permitted by Icelandic law, so that the method was allowed by the rules in Iceland, but it was ineffective under Icelandic law for want of a declaration signed by the defendant. The judge approached the matter in that way and was correct to do so. Viewed from a national perspective, the judge had not erred in principle nor was his exercise of discretion outside the parameters laid down by the authorities. (Anderton v Clwyd County Council (No. 2)UNK[2002] EWCA Civ 933; [2002] 1 WLR 3174applied.)
2. There was no reason why the general principles identified in the domestic law cases should not be applied to the exercise of the court's discretion to dispense with service under CPR, r. 6.9 whether the purported service was invalid in England or elsewhere. In an English action it was only the English court that was concerned with the sufficiency of the service of English process abroad. There was no reason why a court of a member state should not have a provision which was capable of validating irregular service retrospectively. Where the circumstances were such that justice required an order dispensing with service in a Lugano Convention case, for the purpose of ensuring that an otherwise potential domestic time bar would not defeat the claim, there was no reason in principle why the court should not make the order sought in an exceptional case. There would be no prejudice to the defendant because, as in this case, it was almost certain that he would have received the court documents in time, have understood them and decided to take no part in the proceedings for tactical reasons. (Phillips v SymesUNK[2008] UKHL 1; [2008] 1 CLC 29applied.)
3. The position might well be different in a non-Convention or non-Judgment Regulation case, where permission was required to serve the proceedings out of the jurisdiction. The court had traditionally regarded the exercise of its jurisdiction in such a case as the exercise of an exorbitant jurisdiction.
4. There was nothing in the Lugano Convention, including art. IV of the First Protocol, to invalidate r. 6.9, which gave the court power to dispense with service. On the facts of this case, to dispense with service of the claim form did not subvert the Convention. On the contrary, such a dispensation was consistent with the second paragraph of art. 20 of it. Article IV either had no application to these facts or, if it did, was not mandatory and was not therefore relevant to the determination of the appeal. If, contrary to that view, the claimant was bound to serve the proceedings in accordance with the second paragraph of art. IV, that fact did not invalidate r. 6.9.
Sir Anthony Clarke MR:
1. This is an appeal brought with the permission of Moore-Bick LJ from an order made by Mackay J (“the judge”) on 20 December 2006 in which he made an order under CPR 6.9 that service of the claim form be dispensed with. In order to understand the issues in this appeal it is necessary for me to refer briefly to the nature of the case, the procedural history of the action and the earlier decision made by the judge on 8 December 2006.
2. I can take the relevant facts from [3] and [4] of the judgment of 8 December. The respondent, whom I will call “the claimant”, is an Icelandic businessman. The appellant, whom I will call “the defendant”, is a professor of political science at the University of Iceland and domiciled in Iceland. The basis of the claimant's claim is the alleged publication on the defendant's website in England of defamatory material relating to the claimant. Solicitors for the claimant wrote to the defendant on 8 June 2004 setting out the claimant's complaints in some detail and on 3 July 2004 the defendant disconnected the home page on his website. On 5 July the claimant's solicitors sent an email to the defendant warning him that proceedings would be issued.
3. The claim form in this action was issued on 4 August 2004. The claimant's solicitors took immediate steps to have the claim form served on the defendant in Iceland. As explained in more detail below, on the same date they made an appropriate request to the court by signing and submitting Form PF 7. Less than a month later, on 2 September 2004, on the instructions of the International Matters Unit of the Foreign and Commonwealth Office (the “FCO”), Mr Simon Minshull, who was Deputy Head of Mission at the British Embassy in Iceland and HM Consul, went to an address in Reykjavik in order to serve the process on the defendant, who is a well known figure in Iceland and was known to him.
4. He identified the defendant and gave him the claim form and all the other relevant documents including the response pack. The defendant, who reads and understands English, opened the envelope and read the contents. He retained the documents but did not sign any written receipt for them. He was not asked to do so. None of this is in dispute. To put it at its lowest, the...
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