Fridman v Agrofirma Oniks LLC & Anor

Factual and Procedural Background

The Plaintiffs commenced proceedings by claim form dated 9 February 2024 naming Property A as the address for service of the Defendant. The Defendant, a wealthy dual-national individual who had until March 2022 held indefinite leave to remain and was the registered proprietor of Property A, was designated under the Russia (Sanctions) (EU Exit) Regulations 2019 and became an "excluded person" under section 8B of the Immigration Act 1971 (the Travel Ban), with his leave to remain cancelled and a freezing of certain assets. The Plaintiffs sent pre-action correspondence in August 2023 to Property A while the Defendant accepted he was resident there. The Defendant left the jurisdiction on 27 September 2023. The Claim Form was posted and hand-delivered to Property A and, on later occasions, to several alternative addresses including Company A (the entity said to manage Property A), The Law Firm (the Defendant's solicitors in prior sanctions proceedings), and Company B. At first instance Judge Bryan held that service at Property A was valid, concluded the court had jurisdiction, and dismissed the Defendant's CPR Part 11 challenge. The Defendant obtained limited permission to appeal from Judge Males, and the appeal was heard.

Legal Issues Presented

1. Whether the Defendant was validly served with the claim form at Property A despite being an "excluded person" and subject to the Travel Ban.
2. Whether the common law territorial principle that presence within the jurisdiction is required for personal service remains part of the law, or whether Part 6 of the CPR displaces that principle.
3. Whether the court had personal jurisdiction over the Defendant given the Travel Ban and the circumstances of service.
4. Whether alternative addresses or methods relied on by the Plaintiffs were effective to bring the claim form to the Defendant's attention.

Arguments of the Parties

Attorney Craig (for the Defendant)

• The common law rule ties jurisdiction to the Defendant's presence in the jurisdiction; an individual barred from entry (an "excluded person") cannot be treated as present for the purposes of service and jurisdiction.
• The CPR do not abrogate the underlying common law principle; the Defendant's incapacity to enter the jurisdiction makes it incoherent for the court to assert jurisdiction based on presence.

Attorney Hayman (for the Plaintiffs)

• The judge at first instance was correct; the court may exercise jurisdiction where service complies with the CPR regardless of the Defendant's inability to return.
• Alternatively, the CPR have superseded the older common law restriction so that valid service in accordance with Part 6 is sufficient.
• The Plaintiffs also relied on the practical point that alternative addresses ensured the claim form came to the Defendant's attention.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed (i) the source and nature of the common law principle linking personal jurisdiction to presence within the territorial jurisdiction, (ii) whether the Civil Procedure Rules displaced that principle, and (iii) whether on the facts the Defendant was "present" or otherwise amenable to jurisdiction at the time of service.

The court concluded that the presence requirement is not a mere procedural rule but derives from principles of international law and territoriality. Consequently, CPR provisions must be interpreted against that background and a presumption against extraterritorial extension applies. The court reviewed conflicting authorities (notably Kamali and SSL) and determined that they conflict; it preferred the reasoning in SSL and the House of Lords' acceptance in Barclays that presence (subject to the qualification that temporary absence does not extinguish presence where the person retains the right to return) is a substantive jurisdictional requirement.

Applying those principles to the facts, the court accepted that temporary absence can preserve presence for jurisdictional purposes only within narrow bounds and where return is realistically within the person's control. The Defendant had been designated an "excluded person" with an indefinite Travel Ban preventing lawful return; this state-enforced expulsion was not a "temporary" absence in the relevant sense. The Defendant's ownership of Property A, staffing arrangements and stated intention to return were insufficient to establish presence or residence for jurisdictional purposes while the Travel Ban remained in force.

The court therefore held that, despite compliance with CPR service provisions, the court did not have personal jurisdiction over the Defendant as of right and the first-instance judge erred in holding otherwise.

Holding and Implications

APPEAL ALLOWED

Holding: The court allowed the appeal, concluding that service at Property A did not, as of right, found personal jurisdiction because the Defendant was not present within the jurisdiction for the purposes of the common law territorial rule due to the Travel Ban.

Implications: The direct effect is that the first-instance order is set aside. If the Plaintiffs wish to pursue the claim they must obtain the court's permission to serve proceedings outside England and Wales under CPR r 6.36 and PD 6B (establishing one or more "gateways"); if permission is granted they may then apply for substituted service at Property A under the appropriate rules. The court's reasoning affirms the continued relevance of the territoriality principle and prefers the reasoning in SSL over Kamali where those authorities conflict; the decision resolves the appeal without purporting to create novel substantive law beyond that analysis.