The Claimant sought a non-party costs order against the director of a company which had unsuccessfully defended the claim. That director was resident in Russia. The evidence was that it would take 8 to 10 months to effect service in Russia by means compliant with the Hague Service Convention and that translations would be costly and time consuming to prepare. The Master made an order permitting alternative service on the director at the London office of the solicitors who had acted for the company.
On appeal to the High Court Judge, the order for service was overturned. It was held that: (i) where the respondent is overseas, it is a necessary preliminary to an order for alternative service that an order for service out of the jurisdiction is first made; (ii) where it is otherwise appropriate to order alternative service within the jurisdiction, the Hague Service Convention did not abrogate the Judge’s discretion to do so, but proper weight must be given to the factor that such an order should not be used to circumvent the Convention; (iii) in such a case, alternative service can only be ordered if ‘exceptional circumstances’ are shown, and mere delay and expense without more can never constitute ‘exceptional circumstances’ for this purpose; (iv) the Master had erred in treating delay and expense as sufficient and, applying the right test, there was no evidence of ‘exceptional circumstances’.
The judgment appears here.
Simon Salzedo QC and Sophie Shaw, instructed by Osborne Clarke LLP, represented the director on the appeal.