Shiblaq v Sadikoglu

Factual and Procedural Background

This judgment continues from an earlier judgment in the same matter. The case concerns whether service of foreign proceedings on the defendant in Turkey was valid under the Civil Procedure Rules (CPR) and applicable international conventions, specifically the Hague Convention. The claimant sought to obtain judgment in default of acknowledgment of service based on this service. The defendant challenged the validity of the service, leading to the court’s detailed examination of procedural and substantive issues relating to service of foreign proceedings. The judgment also addresses applications by the claimant under CPR 3.10 and CPR 6.9 to remedy or dispense with defects in service after the initial hearing.

Legal Issues Presented

1. Whether the service effected on the defendant in Turkey was valid for the purposes of CPR 12.3(1) to entitle the claimant to obtain judgment in default of acknowledgment of service under CPR 12.
2. If the service was not valid, whether the court should make an order under CPR 3.10 to remedy the procedural error.
3. Whether the court should make an order under CPR 6.9 to dispense with service of the document.
4. Whether the method of service was permissible under Turkish law.
5. Alternatively, whether the method of service was permissible under Article 15 of the Hague Convention.

Arguments of the Parties

Claimant's Arguments

• The service effected on the defendant in Turkey by a notary public conformed with Turkish domestic law and thus should be considered valid for foreign proceedings under Article 15 of the Hague Convention.
• The court should exercise its discretion under CPR 3.10 to cure any defects in service, as the defendant had actual notice of the proceedings and failed to respond appropriately within the relevant time.
• The court should dispense with service under CPR 6.9 retrospectively, as the defendant had informal notice of the claim, making formal service unnecessary and avoiding prejudice to the defendant.
• Relied on precedent such as The Goldean Mariner to support curing irregularities in service where the defendant has notice.
• Argued that service by post under Article 10(a) of the Hague Convention was effective by reciprocity, despite Turkey’s objection to Article 10.

Defendant's Arguments

• Service was invalid because Turkish law requires service of foreign proceedings through diplomatic channels, not by a notary public.
• Turkey has registered an objection to Article 10 of the Hague Convention, rendering direct service methods impermissible.
• Article 15 of the Hague Convention does not create an alternative method of service, but sets minimum standards for service under the Convention.
• CPR 3.10 cannot be used retrospectively to validate defective service or to create a duty to acknowledge service that did not exist at the relevant time.
• CPR 6.9 cannot be used retrospectively to dispense with service in a manner that circumvents the formal requirements of service conventions.
• Relied on the principle of international comity and relevant case law, including Knauf UK v. British Gypsum Ltd, to argue against circumventing service conventions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Goldean Mariner [1990] 2 Lloyd's Rep 215	Application of predecessor to CPR 3.10 to cure procedural irregularities in service.	Distinguished; court held that CPR 3.10 cannot retrospectively validate defective service to create a duty to acknowledge service.
Elmes v. Hygrade Food Products plc [2001] EWCA CIV 121	Limits on retrospective application of CPR 3.10 to validate defective service.	Supported the view that CPR 3.10 cannot be used retrospectively to validate defective service and justify judgment in default.
Godwin v. Swindon Borough Council [2002] 1 WLR 997	Retrospective application of CPR 6.9 to dispense with service is generally not permitted.	Referenced as authority that CPR 6.9 cannot be used to circumvent time limits on service retrospectively.
Anderton v. Clwyd County Council (No.2) [2002] 1 WLR 3174	Distinction between no attempt and ineffective attempt to serve; exceptional circumstances for retrospective application of CPR 6.9.	Adopted to support that CPR 6.9 may be applied retrospectively only in exceptional cases where defendant had actual notice.
Chambers v. Southern Domestic Electric Services Ltd	Exceptional case where retrospective dispensing with service was appropriate.	Referred to illustrate circumstances where CPR 6.9 was granted retrospectively.
Cranfield v. Bridgegrove Ltd [2003] EWCA Civ 656	Scope and limitations of CPR 6.9 in dispensing with service.	Used to emphasize that CPR 6.9 is for exceptional cases and must be strictly applied.
Bas Capital Funding Corporation [2004] 1 Lloyd's Rep 652	Application of CPR 6.9 to service outside jurisdiction and importance of proper service.	Referenced for the principle that proper service is crucial in international cases and caution in dispensing with service.
Knauf UK v. British Gypsum Ltd [2002] 1 WLR 907	Prohibition on circumventing service conventions by alternative service methods.	Applied to reject attempts to subvert Hague Convention requirements by alternative service methods.

Court's Reasoning and Analysis

The court began by examining expert opinions on whether service by a notary public in Turkey was valid under Turkish law. There was conflicting expert evidence: some professors opined that a notary public could validly serve domestic proceedings and, by extension, foreign proceedings; others contended that service of foreign proceedings must be through diplomatic channels and that a notary public lacked authority.

The court found the majority view—that a notary public can validly serve domestic proceedings—more convincing but distinguished domestic from foreign proceedings. It noted Turkey’s formal objection to Article 10 of the Hague Convention, which precludes certain direct service methods, including those by a notary public, for foreign proceedings.

The court rejected the claimant's argument that Article 15 of the Hague Convention allowed service by domestic methods to suffice for foreign proceedings. It held that Article 15 sets minimum standards for service methods under the Convention and does not override the prohibition caused by Turkey’s objection to Article 10.

The court further analyzed the claimant's applications under CPR 3.10 and CPR 6.9 to cure or dispense with defective service. It held that CPR 3.10 cannot retrospectively validate defective service or create a duty to acknowledge service that did not exist at the relevant time, as this would be absurd and contrary to established case law.

Similarly, the court found that CPR 6.9 could only be applied retrospectively in exceptional cases where the defendant had actual notice within the time for service. Even then, it should not be used to circumvent binding international service conventions.

The court emphasized principles of international comity and adherence to service conventions, rejecting attempts to use procedural rules to bypass these requirements. It concluded that the service method used was impermissible under Turkish law and the Hague Convention, and thus the judgment in default based on that service must be set aside.

Holding and Implications

The court’s final decision is to SET ASIDE the judgment in default of acknowledgment of service under CPR 13.2.

The claimant’s applications under CPR 3.10 and CPR 6.9 to cure or dispense with defective service were refused. The court held that it cannot retrospectively validate defective service or impose a duty to acknowledge service where none existed. The defendant is entitled as of right to have the judgment set aside due to invalid service.

The claimant must serve the defendant by a method permitted under the Hague Convention to which Turkey has not registered an objection. No new precedent was established; the decision reinforces strict adherence to international service rules and the limits on retrospective procedural remedies where international conventions and domestic laws prescribe specific methods of service.