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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Maughan v Wilmot (Rev 1)  EWHC 29 (Fam) (13 January 2016)
Cite as:  EWHC 29 (Fam),  WLR 2200,  WLR(D) 9,  2 FLR 1349,  1 WLR 2200,  Fam Law 307
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Strand, London, WC2A 2LL
B e f o r e :
| VIKI NATASHA MAUGHAN
|- and -
|RICHARD MICHAEL EDMUND WILMOT
Mr N Bowen QC (direct access) for the husband
Hearing date: 21 December 2015
Crown Copyright ©
Mr Justice Mostyn:
i) While there is a power to order service by email on a person in the jurisdiction under FPR 6.19 and PD6A paras 4.1 to 4.6 there is no comparable power in Chapter IV of FPR Part 6 (rules 6.40 - 6.48) and PD6B, which deal with service on a person outside the jurisdiction.
ii) There is no analogue to CPR 6.37(5)(b)(i) in Chapter IV. There is no power within Chapter IV which allows service by alternative means.
iii) Rather, in a case where the Hague Service Convention applies, FPR 6.45(1) requires service to be effected through the authority designated under the Hague Convention in respect of the foreign country; or (if the law of that country permits) through the judicial authorities of that country, or through a British Consular authority in that country.
iv) The US Supreme Court has held in Societe Nationale Industrielle Aerospatiale v United States District Court (1987) 482 U.S. 522 that domestic service provisions cannot overreach or modify the mandatory requirements of the Hague Service Convention. That decision should be followed here.
v) Domestic authorities in the civil sphere have emphasised that the court should be reluctant to authorise service by alternative means where the Hague Service Convention is in play.
vi) Therefore, the order of 27 February 2013 permitting email service on the husband in Turkey was null and void, as were all the later orders.
"The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily."
"65. In modern times, outside the context of the EU, the most important source of the consent of States to service of foreign process within their territory is to be found in the Hague Convention (in relation to the State parties to it) and in bilateral conventions on this matter. Because service out of the jurisdiction without the consent of the State in which service is to be effected is an interference with the sovereignty of that state, service on a party to the Hague Convention by an alternative method under CPR 6.15 should be regarded as exceptional, to be permitted in special circumstances only.
66. It follows, in my judgment, that while the fact that proceedings served by an alternative method will come to the attention of a defendant more speedily than proceedings served under the Hague Convention is a relevant consideration when deciding whether to make an order under CPR r 6.15, it is in general not a sufficient reason for an order for service by an alternative method.
67. Quite apart from authority, I would consider that in general the desire of a claimant to avoid the delay inherent in service by the methods permitted by CPR r 6.40, or that delay, cannot of itself justify an order for service by alternative means. Nor can reliance on the Overriding Objective. If they could, particularly in commercial cases, service in accordance with CPR r 6.40 would be optional; indeed, service by alternative means would become normal. In fact this view is supported by authority: see the judgment of the Court in Knauf UK GmbH v British Gypsum Ltd  EWCA Civ 1570  1 WLR 907 at paragraph 47:
'It was argued by Peters before the judge that the Hague Convention and the Bilateral Convention were a "mandatory and exhaustive code of the proper means of service on German domiciled defendants", which therefore excluded alternative service in England. The judge did not accept that submission, pointing out that those Conventions were simply not concerned with service within the English jurisdiction. Peters did not repeat that submission on its appeal. Nevertheless, it follows in our judgment that to use rule 6.8 as a means for turning the flank of those Conventions, when it is common ground that they do not permit service by a direct and speedy method such as post, is to subvert the Conventions which govern the service rule as between claimants in England and defendants in Germany. It may be necessary to make exceptional orders for service by an alternative method where there is "good reason": but a consideration of what is common ground as to the primary method for service of English process in Germany suggests that a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.'
68. Service by alternative means may be justified by facts specific to the defendant, as where there are grounds for believing that he has or will seek to avoid personal service where that is the only method permitted by the foreign law, or by facts relating to the proceedings, as where an injunction has been obtained without notice, or where an urgent application on notice for injunctive relief is required to be made after the issue of proceedings. In the present case, the only reason for urgency in serving the Defendants arose from the Claimants' delay in seeking and obtaining their permission to serve out of the jurisdiction: a delay resulting in part from their decision not to proceed with their claim until they had obtained funding for the entire proceedings. Furthermore, their application for permission to serve out was not particularly complicated.
69. This does not mean that a claimant cannot bring proceedings to the attention of a defendant by email, fax or other more speedy means than service pursuant to CPR r 6.40. The Claimants could have done so in the present case. But, as I have indicated, service is more than this. In my view, the judge confused this possibility with service itself.
70. It follows that in my judgment there was no good reason for an order granting permission to serve the Defendants by alternative methods."
"In his judgment in the Court of Appeal, Longmore LJ described the service of the English Court's process out of the jurisdiction as an "exorbitant" jurisdiction, which would be made even more exorbitant by retrospectively authorising the mode of service adopted in this case. This characterisation of the jurisdiction to allow service out is traditional, and was originally based on the notion that the service of proceedings abroad was an assertion of sovereign power over the Defendant and a corresponding interference with the sovereignty of the state in which process was served. This is no longer a realistic view of the situation. The adoption in English law of the doctrine of forum non conveniens and the accession by the United Kingdom to a number of conventions regulating the international jurisdiction of national courts, means that in the overwhelming majority of cases where service out is authorised there will have been either a contractual submission to the jurisdiction of the English court or else a substantial connection between the dispute and this country. Moreover, there is now a far greater measure of practical reciprocity than there once was. Litigation between residents of different states is a routine incident of modern commercial life. A jurisdiction similar to that exercised by the English court is now exercised by the courts of many other countries. The basic principles on which the jurisdiction is exercisable by the English courts are similar to those underlying a number of international jurisdictional conventions, notably the Brussels Convention (and corresponding regulation) and the Lugano Convention. The characterisation of the service of process abroad as an assertion of sovereignty may have been superficially plausible under the old form of writ ("We command you…"). But it is, and probably always was, in reality no more than notice of the commencement of proceedings which was necessary to enable the Defendant to decide whether and if so how to respond in his own interest. It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like "exorbitant". The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum."
"This Part applies to the service of documents, except where –
(a) another Part, any other enactment or a practice direction makes a different provision; or
(b) the court directs otherwise."