Source: All England Reporter
Publisher Citation: [2008] All ER (D) 152 (Jan)
Neutral Citation: [2008] UKHL 1
Court: House of Lords

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Mance

Representation Alan Steinfeld QC, Richard Millett QC, John Stephens and Jessica Hughes (instructed by Lane & Partners LLP) for the claimants.
  John Martin QC and Thomas Lowe (instructed by Withers LLP) for the defendants.
Judgment Dates: 23 January 2008


Claim form - Service - Service out of the jurisdiction - Dispensing with service - Proceedings involving same cause of action between same parties in courts of different states - Proceedings commenced in England against Swiss defendants - Failure to serve claim form on Swiss defendants - Swiss defendants commencing proceedings in Switzerland - English claimants applying for order in English proceedings dispensing with service of claim form - Whether proper exercise of court's jurisdiction - Whether English court seised of proceedings before Swiss court - , art 21 - CPR 3.10, 6.9.

The Case

In the instant case service was declared to have been effective under CPR3.10 or alternatively by the application of CPR6.9 where there had been an omission of the English claim from from documents served on the defendants in Switzerland due to the Swiss judge or his clerk removing that form from the package of documents which were to be served and accordingly the English courts were seised of the matter. Having regard to CPR3.10, the question of whether service should be declared to have been effective was purely one for domestic law, just as the question of when an English court was seised of proceedings was purely one for domestic law and, indeed, the question of precisely what documents had to be served to achieve effective service out of the jurisdiction under the Hague Convention. Moreover, even if a dispensing order under CPR6.9 was properly to be regarded as retrospectively validation what would otherwise have been ineffective service, it would be within the court's power to make such an order because, again, the question of seisin was purely for the national court. Therefore, applying its own procedural rules to dispense with service of a particular document, it could make an order which was effective retrospectively to validate what would otherwise have been an invalid form of service. Nevertheless, the power was one to be exercised sparingly and only in the most exceptional circumstances.

Practice Areas

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