Service out of the jurisdiction—practical considerations (Societe General v Goldas)

Service out of the jurisdiction—practical considerations (Societe General v Goldas)

This judgment deals with the validity of service outside the jurisdiction. It provides an extremely useful round-up of the principles to be applied when making an application to validate service either by the alternative method (CPR 6.15) or dispensing with service (CPR 6.16). It also considers abuse of process issues in not pursuing a case expeditiously in which freezing orders had been granted as well as being in breach of undertakings given alongside a decision not to pursue the proceedings for a considerable period of time.

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What are the practical implications of this case?

The case of Societe General v Goldas [2017] EWHC 667 (Comm) raises a number of considerations when seeking to effect valid service outside the jurisdiction:

  • it is essential to check the service regime which applies when seeking to serve a claim form out of the jurisdiction. Once the regime has been determined, service must be in compliance with that regime eg the 1965 Hague Convention on the Service Abroad of Judicial and Extraterritorial Documents in Civil and Commercial Matters (the Hague Convention) or a bilateral treaty. For assistance, see: Which service regime applies—checklist
  • when considering whether proceedings have been validly served in another country the English court will consider the comments on the certificate of service as well as the application of the procedural rules of that country covering service. If the application of the procedural rules is contested make sure that you have a certified translation of the procedural rules as well as expert evidence from an expert that has practiced in the field and can provide an insight in the application of the rules in practice in that country
  • when considering whether to make an application for service by an alternative method or to dispense with service this judgment provides a very useful summary of the relevant principles to consider in relation to the test to be applied as well as considerations as to abuse of process, limitation defence, cases involving service abroad under the Hague Convention or a bilateral treaty and the impact of dealing with a litigant in person
  • when considering applications to validate service, the fact that the defendants were aware of the claim form and its contents will be an important factor but the court will consider it in the light of all the other circumstances in the case
  • where freezing injunctions have been granted it is essential to ensure compliance with the undertakings provided, a failure to do so is an abuse of process
  • where there are concurrent proceedings in different jurisdictions, proceedings in the English courts must be pursued unless an order of the court is obtained to stay proceedings

What was this case about?

Whether service of a claim form on defendants in Turkey and Dubai had been validly served and, if not, whether relief could be obtained by an order that service be validated either by an alternative method of service or by dispensing with service.

What were the facts?

The claimant obtained freezing orders against the defendants (situated in Turkey and Dubai) and gave undertakings to serve the claim forms as soon as practicable. Service of the claim form on the defendants was attempted.

The claimant then took a commercial view to pursue insolvency proceedings against the defendants in Turkey and did not pursue the English proceedings for over eight years. In relation to the English proceedings:

  • February 2016—the defendants made applications for the English claim forms to be struck out and/or dismissed and for the freezing orders to be discharged
  • May 2016—the claimants made applications to overcome invalid service in Turkey and also in Dubai (if service there was found to be invalid) and for summary judgment of the claim

Further guidance

Our Practice Note continues on to cover the following areas:

  • Had there been valid service in Turkey?
  • Had there been valid service in Dubai?
  • Should service in Dubai be validated—the principles to be applied?
  • Should service in Dubai be validated—application of the principles
  • The good reasons/exceptional reasons put forward and rejected

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About the author:

Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolutions lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.