ASEFA YESUF IMPORT & EXPORT AND ORS (2016)

The defendant Danish shipowner challenged the jurisdiction of the court on the basis that the proceedings had not been validly served on it in Denmark and the claimant shippers applied for service to be validated or dispensed with.

 

The shipowner had issued bills of lading to the claimants, who were Ethiopian shippers who exported agricultural products, in respect of cargoes of rape seed cake loaded on board a vessel for carriage to China. Other cargoes of rape seed cake from Ethiopia had caught fire and the claimants’ cargo was discharged in Malaysia on the basis that it was undisclosed dangerous cargo prone to self-ignition. The claimants claimed that the shipowner was in breach of contract in so doing. The claimants issued proceedings against the shipowner. An English solicitor from the London office of the claimants’ solicitors travelled to Denmark and handed the claim form and other documents to an individual at the shipowner’s head office. The shipowner’s case was that that was not valid service under Regulation 1393/2007 art.15.

 

The claimants argued that what had taken place was good service under art.15; alternatively there had been a minor procedural error in effecting service which could and should be cured under CPR r.3.10, r.6.15 or r.6.16.

 

HELD: (1) CPR r.6.40(3) appeared to permit service in accordance with the Service Regulation as a method of service out of the jurisdiction, but that was a trap for the unwary since where it applied, and it applied in Denmark, the Service Regulation was a mandatory and exhaustive code for the purposes of service in civil and commercial matters, Alder v Orlowska (C-325/11) applied. Article 15 provided that service of judicial documents could be effected directly through the judicial officers, officials or other competent persons of the Member State addressed, where such direct service was permitted under the law of that Member State, and art.23 required Member States to communicate the relevant information to the Commission. The information communicated by Denmark to the Commission was that direct service through judicial officers, namely bailiffs, was permitted under Danish law. The fact that direct service by a private person of Danish proceedings was possible under Danish law did not mean that it was also permissible under art.15. Article 15 had an autonomous interpretation under EU law and Denmark had notified the Commission that the relevant person to effect service was a bailiff. Furthermore, an English solicitor could not be a competent person “of” the Member State addressed, as specified in art.15. Service of an English claim form by an English solicitor directly on a defendant in Denmark was not permitted by art.15, as applicable under Danish law, and there had been no valid service on the shipowner. The method of service employed was not a valid method of service at all under art.15 and it could not be said that there had been a minor procedural error in service under art.15 or that a permissible method of service had been poorly carried out (see paras 15, 32-36 of judgment).

 

(2) A good reason was required for the court to validate alternative service under r.6.15(2); the fact that the defendant had learned of the existence and content of the claim was not of itself a good reason, Abela v Baadarani [2013] UKSC 44, [2013] 1 W.L.R. 2043 followed. The claim form had been issued on what was arguably the last day of the limitation period and service was only attempted five months after issue and three weeks before its expiry. Even then the claimants adopted a method of service that was not permitted under art.15. The attempt was made late and not in accordance with the Regulation, when service in accordance with the Regulation would have been straightforward and could have been achieved within the period of validity of the claim form if the claimants had adopted a timely approach and used the correct procedure. There was no good reason for validating service retrospectively (paras 54-68). There were no exceptional circumstances that justified dispensing with service under r.6.16 (paras 69-70). What had occurred was not a permissible method of service carried out poorly which could be cured under r.3.10. Furthermore r.3.10 could not be used to avoid the specific criteria of r.6.15 and r.6.16, Elmes v Hygrade Food Products Plc [2001] EWCA Civ 121, [2001] C.P. Rep. 71 and Vinos v Marks & Spencer Plc [2001] 3 All E.R. 784 followed. In all the circumstances it would not have been appropriate to make an order under r.3.10. The appropriate order was to set aside service of the claim form (paras 71-78).

 

(3) If the errors that occurred meant that the service was not within art.15, then there could be no exercise of discretion under the CPR, but if there had been service within art.15 with minor errors of procedure then the CPR could be deployed, Alder, Baillies Ltd (In Liquidation), Re [2012] EWHC 285 (Ch), [2012] B.C.C. 554 and Leffler v Berlin Chemie AG (C-443/03) [2005] E.C.R. I-9611 considered. The service was not within art.15 and there was no minor procedural error, with the result that the provisions of the CPR were not available (paras 90-91).

 

Judgment for defendant

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