Shiblaq v Sadikoglu (No. 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Colman |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWHC 1890 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2001 Folio 352 |
| Date | 30 July 2004 |
[2004] EWHC 1890 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
The Honourable Mr Justice Colman
Case No: 2001 Folio 352
Mr David Quest (instructed by Lawrence Jones) for the Defendant (Applicant)
Mr Joe Smouha QC and Miss Jessica Mance (instructed by Addleshaw Goddard) for the Claimant (Respondent)
Hearing dates : 21 May and 9 July 2004
Approved Judgment No.2
Colman J.
This judgment begins where my first judgment in this matter given on 25 July 2003 ("the First Judgment") left off. There are two main issues:
a. Was the service said to have been effected on the defendant in Turkey on 7 September 2001 or earlier a valid service for the purposes of CPR 12.3(1) so as to entitle the claimant to obtain judgment in default of acknowledgement of service under CPR 12?
b. If the answer to (a) is that the service was not valid, whether this court should make an order in accordance with the claimant's applications, issued since the last hearing, under CPR 3.10, which provides as follows:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction-
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
c. and/or under CPR 6.9 which provides that the court may dispense with service of a document.
Issue (a) can be sub-divided into two parts:
a. was the method of service of foreign proceedings adopted in this case permissible under Turkish Law?
b. Alternatively, was the method of service permissible under Article 15 of the Hague Convention to which both Turkey and the United Kingdom are parties?
As to the validity of service under Turkish Law the following is a summary of the expert evidence.
Professor Helvaci of the Istanbul University Law Faculty, who was consulted on behalf of the defendant and whose opinion is referred to in paragraph 25 of the First Judgment, stated that by reason of the Anglo-Turkish Convention of 1932 valid service could only be effected through diplomatic channels. This convention continued to apply in spite of the Hague Convention. He did, however, state or at least imply that service by a notary public following the procedure in the present case, although invalid as regards foreign proceedings, could be valid as regards Turkish domestic proceedings.
Professor Yavuz of the Law Faculty of Marmara University, together with Professor Celikel and Professor Yildirim, consulted on behalf of the claimant, state that the provisions of the Hague Convention have displaced the 1932 Convention and that, if the proceedings had been Turkish domestic proceedings, they could have been served by a notary public in the manner adopted in the present case pursuant to Article 70 of the Notary Public Law. Service of the foreign proceedings in this case could be validly served by a notary public.
Professor Ata Sakmar, a Professor of Private International Law and International Business Law at Galatasaray University, Istanbul, consulted on behalf of the Defendant, stated that foreign proceedings cannot be served directly on an intended defendant in Turkey save subject to the principles of reciprocity and in any event a notary public has no power to effect service of judicial documents in Turkish domestic proceedings because that must be effected by the court authorities through the Turkish post. He did, however, agree that the Hague Convention superseded the 1932 Convention. However, since a notary public could not directly serve any judicial proceedings, that Convention did not have the effect of permitting service of foreign proceedings by such means.
In a further joint report of Professor Celikel, a former Dean of Istanbul University Law Faculty, Professor Yavuz and Professor Yildirim, it was stated that a notary public could validly serve foreign proceedings direct on an intended defendant. Even if such service was not in accordance with Turkish requirements, the effect of Article 32 of the Notification Law and Article 51 of the Notification Regulation was that if the person ineffectively served had become aware of the proceedings against him he would be treated as duly served. The facts of the purported service by the notary public in this case were such that the defendant must have come to know of the attempted service and the English proceedings soon after the notice slip was attached to the door of the shipyard. Accordingly, there was then deemed to be a valid service. In any event there was valid service under Article 10 of the Hague Convention.
In a Rejoinder Legal Opinion Professor Sakmar reiterated that a notary public does not have power directly to serve domestic proceedings. Further, Article 32 of the Notification Law only applied in cases where the person ineffectively served had formally declared or confessed that he was aware of the ineffective service. It was not open to the claimant party to prove that the contents of the document came to the attention of the addressee. Only the admission of the addressee could be relied on to establish such knowledge and the date when the addressee acquired it. Further, Article 32 could not be deployed for the purposes of the Hague Convention. Accordingly, Article 10 of that Convention could not be relied on.
There is also a yet further response by Professor Sakmar which is substantially consistent with his previous opinions. Finally the claimant's three advisers have jointly rejected Professor Sakmar's interpretation of Article 32 so as to require an admission from the addressee as a condition of its cure of an ineffective service. Moreover, the defendant's refusal in this case to receive the documents to be served was, if necessary, a sufficient admission by them of notice of the proceedings.
I am bound to say that I have found the disagreement of these Turkish professors on what amounts to valid service under Turkish law to be very surprising indeed. One would have thought that the Turkish courts would long since have conclusively determined whether proceedings – certainly domestic proceedings – could be effectively directly served by a notary public. One of the difficulties which has confronted this court in trying to evaluate the conflicting evidence is the familiar problem of the partially opaque nature of much of the English used in the translations of the articles of Turkish law and of the experts' reports. When confronted by this kind of conflict it is not easy for an English judge to place himself precisely in the shoes of a Turkish court in resolving the issues. One can, however, to some extent test the position by considering whether the propositions advanced about the meaning and effect of codified provisions of Turkish Law are tenable having regard to the translated words used and whether, with regard to the purpose of the provision, one meaning is intrinsically more likely than another. On applications such as this conducted on the basis of written reports alone and without the benefit of oral evidence, the court must also have regard to the preponderance of legal opinion before it.
With this approach in mind and doing the best I can with the translations of reports and procedural rules, I have come to the conclusion that the view shared by Professor Dr Helvaci, Prof Yavuz, Prof Celikel and Prof Yildirim that valid service of domestic proceedings on an intended defendant in Turkey can be effected directly on the defendant by a notary public is correct. It is to be observed that this was the procedure which the claimant's Turkish lawyer regarded as appropriate and which the notary public also appears to have considered within his powers. Only Professor Sakmar states that it was ineffective and I am bound to say that I find his attempt to cut down the meaning of Article 70 of the Notary Public Law extremely unconvincing.
I conclude, on the basis of the whole of Turkish legal opinion adduced for this hearing, that a notary public is empowered to effect valid service of domestic Turkish proceedings by direct service on the defendant. The question then arises whether according to Turkish Law the same rule applies to foreign proceedings.
Dr Sakmar's argument is that service of foreign proceedings by that means is impermissible. His opinion rests not only on the assertion that a notary public cannot serve domestic proceedings, but also that Turkey has registered an objection to Article 10 of the Hague Convention. This provides as follows:
"Provided the State of destination does not object, the present Convention shall not interfere with:
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination."
There is no doubt that Turkey has registered such an objection.
It will be observed that the purpose of this provision is to preserve those methods of service listed in (a), (b) and (c) in parallel with the methods specified in Article 3 to 6 (service through the Central Authority of the state addressed), Article 8 (service through diplomatic or...
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