Background
The claimants, liquidators of MBI International, held a final judgment of over €67 million against the First Defendant, Sheikh Mohamed bin Issa Al Jaber. To enforce the debt, the claimants obtained a final charging order over a London property owned by the Sheikh. They then commenced new proceedings seeking an order for the possession and sale of that property to satisfy the judgment debt.
Prior to issuing the claim, the claimants’ solicitors attempted to mail a pre-action letter to the Sheikh’s address in Paris, but the letter was never delivered or collected. The claimants also contacted the Sheikh’s long-standing solicitors, Kingsley Wood, who confirmed they were instructed in the matter but stated they were not authorized to accept service of proceedings on his behalf. The claimants then obtained an order, without a hearing, permitting them to serve the claim on the Sheikh by emailing it to Kingsley Wood. The Sheikh applied to set aside that order for alternative service.
The Court’s Holding
Deputy Master Holden dismissed the Sheikh’s application and upheld the validity of the alternative service order. The court clarified that when seeking to serve a defendant in a country party to the Hague Service Convention (like France) which has not objected to service by postal channels, the test for permitting an alternative method of service is not “exceptional circumstances,” but simply whether a “good reason” exists.
The court found there was good reason in this case for several cumulative reasons. First, the proceedings were for the enforcement of a final judgment, making it important to proceed expeditiously. Second, the court inferred a “real possibility” of evasion. This was based on the combination of the Sheikh’s unexplained failure to collect the pre-action letter sent to his Paris address and the “tactical instructions” given to his solicitors to refuse service while they were fully engaged in the proceedings. Finally, the court concluded that service via his solicitors was the most effective and efficient means of bringing the claim to the Sheikh’s attention, which is the fundamental purpose of service.
Key Takeaways
- The test for authorising alternative service on a defendant in a Hague Convention country that permits postal service is “good reason,” not “exceptional circumstances.”
- A court may infer a defendant is attempting to evade service from a combination of a failed postal delivery and their solicitor’s refusal to accept service on their behalf.
- In enforcement proceedings for a final judgment, courts may place significant weight on the need for the case to proceed expeditiously.
- The court’s primary concern in matters of service is ensuring the proceedings are effectively brought to the defendant’s attention, and it may approve an alternative method it deems most likely to achieve that goal.
Why It Matters
This decision demonstrates the English courts’ pragmatic approach to service, particularly in the context of judgment enforcement. It shows that courts are unwilling to let defendants use procedural rules to delay or obstruct justice, especially when there is evidence of tactical “game-playing.” The ruling signals that instructing solicitors to refuse service, while they remain actively involved in the case, is a high-risk strategy that may lead a court to infer an evasive motive and authorise a more direct method of service, such as email to those same solicitors.