Failure to follow service rules is the end of a claim

In Asefa Yesuf Import and Export v A.P. Moller-Maersk A/S (16 June 2016) Simon Bryan QC (as a Deputy Judge of the High Court) made an important decision on service under EU rules.  I was instructed for the successful defendants.

The Judge set aside service of a claim form on defendant shipowners in Denmark on the basis that the proceedings had not been validly served under EU Regulation 1393/2007 on service of judicial documents on the territories of the Member States.

Although service did not establish substantive jurisdiction in this case, which was based on the Judgments Regulation, the failure to serve the claim form led the court to declare that it had no jurisdiction (in the narrow sense) to hear the case under CPR Part 11. The consequence for the claimants was that they had to issue a new claim form.  Unfortunately for the claimants, by this time, their claims had been extinguished under the one-year time bar in the contracts of carriage on which they wished to sue.

From a conflict of laws point of view, this judgment is an important decision on the harmonisation of Member States’ rules on service under the Regulation and the interplay between its provisions and the national law rules to which they partly defer. In that regard, it decides that an English solicitor is not a “competent person” to serve proceedings under Article 15 of the Regulation (direct service) as it does not operate as a choice of law rule in favour of the domestic rules for process in the Member State concerned (here, Denmark).

The case also establishes that EU law ousts the procedural rules of the lex fori to cure defects in service (such as those in CPR 6.15, 6.16 and 3.10) where a claim form has been served by a method that is “outwith” the Regulation, but that it preserves national rules to remedy “minor procedural errors” in service by a method inside the Regulation.

Notwithstanding his conclusion on this issue, the Judge also considered whether he would have made the orders sought under CPR 6.15, 6.16 or 3.10 to cure defective service under the Regulation. The Judge found that there was no good reason to make the orders sought. In this regard, the judgment is a helpful reminder of the strict approach that the Court adopts to applications to cure defects in service under CPR 6.15, 6.16 and/or 3.10 (as discussed in a previous blog post here).

A full bulletin on the decision is available here.