A CLAIM FORM WAS NEVER SERVED PROPERLY AND THE ACTION WAS STRUCK OUT: A TRULY EXTRAORDINARY CASE OF FAILED SERVICE ON A FOREIGN DEFENDANT

I am grateful to barrister Feliks Kwiatkowski for sending me a copy of the judgment  today of District Judge Lumb in Perisi -v- Secret Surgery Ltd & Dr Ahmed Eslaftawy, a copy of that judgment is available here  Perisi v Secret Surgery and Elsaftawy judgment final as handed down.  The judgment deals with the claimant’s attempts to serve a defendant abroad, which the judge held were wholly ineffective, involving (incidentally) a document said to come from the High Court Foreign Process section, which it did not.  The judge held that the second defendant could not be deemed to have accepted jurisdiction in circumstances where there had not been any valid attempt to serve upon him.  Further the court would not exercise its jurisdiction to dispense with service in these circumstances, particularly  given the conduct of the claimant’s solicitor in serving, what the judge described, as a “bogus” court document.

“Followers of the popular legal blog “Civil Litigation Brief” by barrister Gordon Exall will be aware of how frequently cases relating to the service of the Claim Form have featured over the past 11 years. Each time Mr Exall predicts with confidence that the latest case is the final word on the subject as every possible point that could be taken has been covered. This case may show that confidence to be misplaced” (District Judge Lumb).

WEBINAR ON SERVICE OF THE CLAIM FORM

As the District Judge recognises it is unwise to ever claim to have seen the last word on the subject.  This, and many other, cases will be examined in detail in a webinar. Such is the certainty that claim form issues will continue to cause problems throughout the year I am presenting a webinar on the 19th November reviewing the cases in 2024. Booking details are available here.

THE CASE

The claimant underwent cosmetic surgery in Poland. The travel was arranged by the First Defendant (a defunct company which has not taken part in the action) and carried out by the second defendant.  Liability was denied.

THE PROCEDURAL HISTORY

The  proceedings were issued twice the original claim form was sent for issue just inside the limitation period. Some preparatory work was done in relation to service abroad, but there was no attempt to serve. The reasons for this failure were never explained.

The second action was issued after the expiry of the limitation period.

NON-SERVICE OF THE SECOND ACTION

“The Second Claim Form was issued after the expiry of the primary limitation period.
The sealed Claim Form was returned to the Claimant’s solicitors to serve. They made
no attempt to serve during the 6-month validity period of the Claim Form. Instead,
before the expiry of that period, made an application to extend the validity period
initially (and mistakenly) under the EC Service Regulations. Then, having been
corrected by the Foreign Process Section, that Polish service was now only feasible by
the Hague Convention via a bailiff of the local Polish Court, they applied under the
Hague Convention. That application to extend was successful and was confirmed by
the Order dated 6 March 2021 extending the time for service until 14 June 2021. Even
then, no attempt has ever been made to serve the Claim Form, whether in compliance
with the strict and mandatory CPR provisions for foreign service, and in accordance
with the Hague Convention, or at all.”

ATTEMPTED “INFORMAL” SERVICE ON THE SECOND DEFENDANT

“10. Instead, while waiting for the application to extend time to be determined, but within
the existing period of validity of the second Claim Form, the Claimant’s solicitors sent
by post and email a 100-page packet of documents (including translations into Polish)
that included the Claim Form, Particulars of Claim, a response pack, medical evidence
and a purported letter from the High Court Foreign Process Section. The purported
letter is clearly not a genuine document produced by the Court as it is undated and refers
to the EC Service Regulations rather than the Hague Convention. This letter and the
covering letter from the Claimant’s solicitors referred to the documents being sent “by
way of service” which clearly, they were not and, as has been quite properly conceded
by Miss Prager KC, who appears on behalf of the Claimant, were not intended to be by
way of service. There is no explanation provided in the witness evidence before the
Court why these misleading statements were made nor why a letter that had clearly not
been generated by the High Court Foreign Process Section was sent.”

THE CHAOTIC MUDDLE THAT FOLLOWED

“The Second Defendant, upon receipt of the documentation, consulted local solicitors in
Poland. They were sceptical that what the Second Defendant had received amounted to
valid service as it did not accord with the requirements of service of domestic
proceedings in Poland. They sought advice from English agents who it transpired were
management agents who happened to have a director who had qualified as a solicitor
in England and Wales. The advice received at the 11th hour was that an
Acknowledgement of Service indicating an intention to defend the claim should be
filed. The Acknowledgement of Service was duly filed on 22 February 2021. This was
followed four days later by a very brief Defence and a medical report in support of that
Defence.
12. Between that time and 13 April 2023, the case proceeded as if everything was normal,
albeit somewhat chaotic. There was one substantive hearing of a costs and case
management conference and various adjourned hearings for a variety of reasons
including the making of applications on both sides and an abandoned video hearing due
to technical difficulties. It was only at the hearing on 13 April 2023 that the Second
Defendant woke up to the realisation that the second Claim Form had never been served
and that this could found an argument to strike out the claim. The Second Defendant’s
application to strike out was then duly issued as was a cross application by the Claimant
for service of proceedings to be dispensed with.”

THE APPLICATIONS: WAS CPR PART 11 ENGAGED?

The major substantive issue in the applications was whether CPR Part 11 was engaged. If it was then the second defendant would be treated as having accepted jurisdiction to hear the claim.

THE JUDGE’S FINDINGS 1: PART 11 WAS NOT ENGAGED BECAUSE THERE HAD NEVER BEEN ANY VALID ATTEMPT TO SERVE THE CLAIM FORM

“It is not surprising that Miss Prager seeks to rely upon the application to dispense with
service as merely a backup should her primary position that CPR Part 11 is engaged
fails. If Part 11 is engaged then, given my analysis in paragraph 20 above, her arguments
would be bound to succeed and the Court would not need to go on and consider whether,
after a careful balancing exercise, its discretion should be exercised in favour of
dispensing with service of the Claim Form altogether.
30. I do not accept her submission that the same strict rigour should be applied in the
circumstances of the present case to the provisions of CPR Part 11 where as a matter of
fact an Acknowledgement of Service form was filed when it was not needed, as to that
under CPR Parts 6 and 7 regarding service where strict compliance with the rules has
been required consistently by the higher Courts since cases such as Vinos v Marks &
Spencer [2001] 3 All ER 784 and indulgence to correct any procedural irregularity
under CPR Part 3.10 has been refused.

Although there is no direct authority on the point, I conclude that, in relation to the
filing of the Acknowledgement of Service in the present case, this was of no effect as
it was a response to something that did not exist, as there had been no service of the
Claim Form whether effective or defective and indeed there had not even been an effort
to serve.
32. In those circumstances, CPR Part 11 was not engaged. The Claimant’s solicitors who
at the time of sending the documents to the Second Defendant were awaiting the
outcome of their application to the Court for an extension of time to serve the second
Claim Form, which was subsequently granted, should have gone through the proper
process of formal service in accordance with international conventions and the rules.
That part of the Second Defendant’s application therefore was not appropriate nor
necessary as the Claimant’s argument that CPR Part 11 is engaged fails.

SHOULD THE ACTION BE STRUCK OUT OR SHOULD THE COURT MAKE AN ORDER DISPENSING WITH SERVICE?

As to the appropriate outcome of the cross applications to strike out by the Second
Defendant and to dispense with service of the Claim Form by the Claimant, I propose
to deal with these together as the considerations are for all material purposes, the
opposite side of the same metaphorical coin.
34. The Claimant has been in clear breach of the CPR regarding service and sending
documents by a method that the Claimant’s solicitors knew could not amount to valid
service (as opposed to a mistake as to whether the method used could be valid service)
and including a document (the purported letter from the High Court Foreign Process
Section) that was known not to be genuine, could be construed as an abuse of process.
CPR 3.4 (2) (b) and (c) are engaged.
35. There is a substantial overlap between the balancing exercise in furthering the
overriding objective as to whether striking out is an appropriate sanction or permission
to dispense with service of the Claim Form should be given.

The burden is on the Claimant to prove to the satisfaction of the Court that there are
exceptional circumstances that would justify a decision that its discretion should be
exercised in his favour to dispense with service.

37. It having been established that the Claimant is in breach of the rules and with a strong
argument in favour of a finding of abuse of process, the Defendant bears the burden of
persuading the Court that striking out is a proportionate sanction in furtherance of the
overriding objective. The Claimant’s fall-back position could then be that the
appropriate sanction could be an award of costs, albeit subject to QOCS, and that
striking out would be too harsh and disproportionate and the Court could instead give
a direction that formal service be dispensed with.

38. I do not agree that this method of achieving dispensing with service “by the back door”
could be achieved when there is an express rule that deals with the matter in CPR 6.16
which requires the test of “exceptional circumstances” to be met. Mr Kwiatkowski is
correct to argue that under CPR 3.4(2) (c) that if the Claimant’s application fails then
the only remaining realistic option is for the Claimant’s statement of case and therefore
his claim to be struck out.

CPR 3.4.(2)(b)

The position regarding the application under CPR 3.4.(2)(b) and any inherent power
reserved by CPR 3.1 is rather more nuanced.
40. The leading case is Cable v Liverpool Victoria Insurance Limited [2020] EWCA
Civ 1015. Giving the lead judgment Coulson LJ quoted from the well-known speech of
Lord Diplock in Hunter and Chief Constable of West Midlands Police [1982} AC
529 regarding “the inherent power which any Court of Justice must possess to prevent
misuse of its procedure in a way which, although not inconsistent with the literal
application of its procedure rules, it would nevertheless be manifestly unfair to a party
to litigation before it, or otherwise bring the administration of justice into disrepute
amongst right-thinking people. The circumstances in which abuse of process can arise
are very varied… It would in my view most unwise if this House were to use this
occasion to say anything that might be taken as limited to fixed categories the kind of
circumstances in which the Court has a duty to exercise this salutary power”

He also referred to the working definition of abuse of process, set out by Lord Bingham
in AG v Barker [2000] 1FLR 759 as “use of the Court process for a purpose in a way
which is significantly different from the ordinary proper use of the Court process.”

PREJUDICE TO THE PARTIES

The judge set out the arguments of both sides in detail. He rejected the claimant’s argument that the second defendant was not prejudiced.

“6. I do not accept that there is no prejudice suffered by the Second Defendant. At present
he is not indemnified by his own insurers and one of the extant applications before the
Court that is yet to be determined is the joining of those insurers as Third Parties to the
proceedings. He is therefore presently subject to the QOCS regime in a personal
capacity and even if successful in defending the claim on it’s merits will still have to
fund his costs of defending the claim from his own pocket as he would be unlikely to
obtain an enforceable order for costs against the Claimant.”

THE INTERNATIONAL CONTEXT

“In my view, the authorities concerning setting aside judgment where there has been
defective service are of limited benefit in considering the circumstances of the present
case where there had not even been an attempt at service. Had the Second Defendant
not filed an Acknowledgement of Service or Defence and judgment in default had been
obtained then he would have had an unanswerable case to have that irregular judgment
set aside.
48. In BAS Capital Funding Corp [2004] 1 Ll Rep 652 Lawrence Collins J considered
the position where there had been defective service outside the jurisdiction in Malta. In
considering an application to allow service by an alternative method or dispensing with
service altogether in what was then CPR 6.9 (now 6.16) he stated that, “service is
particularly important in international cases, where the basis of jurisdiction is service”.
In the event he adjourned the application so that proper service could be effected as
there was still time for this to be done.
49. In Knauf GmbH v British Gypsum [2002] WLR 907, a case about permitting service
by an alternative method, Henry LJ emphasised the importance of complying with the
requirements of the Hague Convention in service out of the jurisdiction. He stated “in
our judgment there can’t be a good reason for ordering service in England [as opposed

to in Germany in accordance with the Hague Convention] by an alternative method on
a foreign defendant when such an order subverts, and is designed to subvert, in the
absence of any difficulty about effecting service, the principles on which service and
jurisdiction are regulated by agreement between the United Kingdom and its
convention partners. This is not a matter of mere discretion, but of principle.”

50. This principle was restated in Shiblaq v Sadikoglu (Application to Set Aside) (No1),
[2005] 2 CLC 380 (2003) in the context of seeking to substitute “a form of service or
avoiding a defect in service which is inconsistent with the service convention binding
as between this country and the country of service. Where it is sought to apply CPR 6.9
[now 6.16] retrospectively, if the effect of dispensing with service is to place the
Defendant in the same position as he would have been in if service had not been by an
impermissible method but by a method provided for by such service convention, no
order should be made. The impleading of a foreign Defendant which is provided for by
international convention should not be effected by a fictional device aimed at
circumventing the formal requirements of the relevant convention. This is an emanation
of the fundamental principle of international comity and is not amenable to dilution by
any feature of the overriding objective in CPR 1.1”

“In my judgment, it is this latter dictum that trumps all the other considerations, even the
passage of time before the application was made two years after the filing of the
unnecessary Acknowledgement of Service.”

THE DELAY BY THE DEFENDANT

Although the delay in bringing the application meant that the Claimant had long since
run out of time for service in accordance with the Hague Convention it was negligent
to not complete proper service when there was still time to do so. Given that one Claim
Form had already been issued and had been allowed to lapse without service, I cannot
accept as certain that the Claimant’s solicitors would definitely have ultimately served
the Claim Form correctly and within time. Rather, they had merely lost the chance to
do so.

53. Where a party is throwing themselves on the mercy of the Court to exercise a
discretionary power in their favour their conduct should be beyond reproach
particularly where the relevant test is to show exceptional circumstances. Sadly, for the
reasons listed by Mr Kwiatkowski that cannot be said of the actions of the Claimant’s
solicitors. That is not to say that the approach of the Second Defendant and his advisors
in only waking up to the possibility of their application so very late in the day cannot
be exempt from criticism. In the final analysis, the culpability for the procedural mess
that has been created in this case falls principally at the feet of the Claimant and his
advisors. The application to dispense with service is therefore refused.

THE RESULT

“As I have determined that CPR Rule 11 was not engaged on the facts of this case, that
the actions of the Claimant through his solicitors amounted to an abuse of process in
addition to a clear and deliberate breach of the CPR and of the requirements of the
Hague Convention in relation to service out of the jurisdiction, together with the refusal
of the Claimant’s application that service of the Claim Form be dispensed with, I have
arrived at the conclusion that the proportionate and indeed only remaining realistic
option is to order that the Claimant’s statement of case and therefore his claim as against
the Second Defendant be struck out and judgment be entered for the Second Defendant.”

THE ADDENDUM TO THE JUDGMENT

There is a short addendum to the judgment where the judge considers an issue as to whether the claimant had attempted to serve the second proceedings.  The judge considered, in detail, a witness statement made by the claimant’s solicitor in support of an application under Section 33 of the Limitation Act 1980.

Pausing there, it is clear that the Claimant’s solicitors knew that service could only take
place through the FPS and that as at the 3 March 2021 service had not taken place or
even been attempted and knew that they had to apply for an extension of time to serve
as time for service was due to expire after 14 March 2021. There is no suggestion in
that witness statement, signed with a statement of truth, that the Claimant’s solicitors
considered at that time that they had “served” the Second Defendant. This was at a time
almost 2 months after the documents had been posted to the Second Defendant.
60. Paragraph 24 of the witness statement explained how the FPS returned the service
papers to the solicitors and asked them to return them once the extension of time had

been granted by the Court. Paragraph 27 confirms that no further attempt to serve was
made via the FPS.
61. I simply do not accept on the facts as set out in the Claimant’s solicitors own witness
statement that the packet of documents sent with the covering letter of 15 January 2021
was intended to or could even amount to service of the Claim Form, not even defective
service. The reference in the covering letter to “by way of service” can only be regarded
as an insincere sham and certainly not a bona fide attempt at service or even at defective
service. No explanation has been forthcoming as to why those misleading words were
used or why the bogus letter purporting to be from the FPS was sent.
62. In the circumstances, I see no reason to amend my judgment and for the avoidance of
any doubt confirm my conclusions and the reasoning behind them

COSTS

The judgment does not mention costs. However Mr Kwiatkowski informs me that the judge made a fully enforceable costs order against the claimant, with a notice to show cause being issued against the claimant’s solicitors.