Supreme Court rules on alternative service on foreign defendants

In overturning an earlier Court of Appeal decision (reported in the March 2012 Litigation Review), in Albert John Martin Abela & ors v Ahmad Baadarani & anr, the Supreme Court has confirmed a more pragmatic, modern and claimant-friendly approach to the circumstances in which the courts will grant an order for alternative service. The decision is of particular note as it represents a discernible move away from the traditional approach to service out of the jurisdiction and reflects the court’s willingness to make it easier for claimants to conduct international litigation in London.

An order for alternative service out of the jurisdiction can be an important tool for a claimant looking to serve an English claim form on a foreign defendant, particularly when the defendant is situated in a country that is not a signatory to a bilateral service treaty. The court’s power under CPR 6.15(2) to validate retrospectively steps taken to serve a claim on a defendant is useful for a claimant who is unable to serve a claim form under the terms of an order. However, the power is controversial and its use is regarded by some as undermining the sovereignty of foreign jurisdictions.

Mr Abela and two companies he controlled (the claimants) brought a claim for damages for fraudulent misrepresentation and conspiracy against Mr Baadarani (the defendant) in connection with a contract for the purchase of shares. The claimants alleged that they were persuaded to purchase shares worth substantially less than their purchase price as a result of the defendant’s concealment of the true finances of the company…

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