Syedur Rahman outlines the significance of Richard John Slade v Deepak Abbhi  and the implications this may have on personal service outside of the UK jurisdiction.
The judgment in the case of Richard John Slade v Deepak Abbhi  EHWC 935 (QB) emphasises how important it is to abide by the Civil Procedure Rules (CPR) on service. It shows that the court will not ignore the obligation for personal service of an order for examination of a judgment debtor.
As a case, it has implications for the serving of an order on an individual outside UK jurisdiction – and has particular relevance for litigation during the current Covid-19 pandemic.
The claimant, in this case, Richard John Slade, is a solicitor at his own firm. Deepak Abbhi, the defendant, lives in the US. Mr Abbhi is the son-in-law of a former client of the claimant. It was alleged that Mr Abbhi had agreed to pay his father-in-law’s legal fees, which were owed to Mr Slade. The fees did not get paid and so Mr Slade commenced proceedings against the defendant to recover what was owed. The case went to trial and was heard in September 2018, whereby HHJ Russen QC found in the claimant’s favour and it was ordered that the defendant must pay the claimant £430,000.00.
The order was not adhered to by the defendant and the money was not paid. As a result, under CPR 71.2, the claimant applied for and was granted, an order that would require the defendant to attend court for examination of his means in order to enforce the above order. On 15 April 2019, the order was served by email on the defendant's solicitors. The email did not make any reference to the provisions for personal service in CPR 71.3 (see below).
On 16 April 2019, the defendant's solicitor replied in a letter (sent via email) confirming receipt and, whilst again making no reference to the requirement for personal service, responded,
"…you are entitled to treat our address as Mr Abbhi's address for service. We would have expected you to serve the documents by letter, in the usual way… but are content to accept service of the documents by email".
After being notified of the date of the examination, the defendant's solicitor then wrote to the claimant's solicitor on 28 January 2020, saying that the order had not been served on the defendant personally in accordance with the mandatory terms of CPR 71.3, saying, "We did not waive the obligation to effect personal service".
On 12 February 2020, the claimant made an ex parte application to Deputy Master Kay QC to resolve the matter. The Deputy Master ordered that the letter, dated 16 April 2019, waived the requirement for personal service under CPR 71. The defendant applied to set aside or vary the terms of the order, which the claimant opposed.
The issue was that service of the Part 71 order was by email and whether the defence’s response equated to a waiver of the requirement for personal service. It was also to be considered whether the (ex parte) order was valid considering the defendant was outside the jurisdiction.
- Under CPR 71.2, a judgment creditor can apply for an order that a judgment debtor is required to attend court to provide information about their means and any other matter about which information is needed to enforce the judgment or order.
- CPR 71.3(1) makes a provision that "an order to attend court must, unless the court otherwise orders, be served personally on the person ordered to attend court not less than 14 days before the hearing ".
- Service of the claim form by an alternative method or at an alternative place is governed by CPR 6.15.
- Service on a person who resides out of this jurisdiction raises special considerations, because “in a case involving service out of the jurisdiction, it is an exercise of sovereignty within a foreign state. It requires the defendant if he is to dispute the claim, to file an acknowledgement of service and to participate in litigation in what for him is a foreign state” (paragraph 61 of Cecil v Bayat  1 WLR 3086).
- Where service is to be carried out on a defendant who resides outside of the jurisdiction but in a Hague Service Convention territory, alternative service "should be regarded as exceptional, to be permitted in special circumstances only" (paragraph 65 of Cecil).
Deputy Master Hill QC found in favour of the defendant, by setting aside the previous order explaining that the claimant initially failed to make clear that the defendant was a resident outside of the UK. The appropriate test was Cecil’s “exceptional circumstances”, which the Deputy Master deemed not to be met in any case.
On the facts, Deputy Master Hill QC also ruled in favour of the defendant’s application, saying that the defendant had not waived the requirement for personal service and that a substituted service order was not acceptable. The lack of an order for permission to serve outside the jurisdiction was deemed to be “fatal” to the ex parte application.
The case of Slade v Abbhi serves as a reminder that an attempt at personal service must first be made, before considering alternate methods. It also highlights the importance of complying with the CPR rules on service.
This may well be a concern during times of Covid-19. If there are practical difficulties in serving personally, you must be able to explain to a court why exceptional circumstances should apply. Whilst the court will have discretion to consider alternative means and methods of service, it is imperative to first show what efforts have been made and why an alternative method is required for service.
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