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31 March 2015
Following a recent English High Court decision, it should now be more difficult for parties to evade the effective service of English court documents in Russia.
In Sloutsker v Romanova(1) the High Court held that service on the defendant of an English claim form and particulars of claim had been validly effected in Russia under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, notwithstanding the Russian court having certified that the documentation had not been validly served.
The claimant and defendant were both Russian citizens (the claimant a businessman, the defendant a journalist married to a former business associate of the claimant). The claimant sued the defendant for libel in respect of the publication, in England and Wales (as well as Russia), of allegations of fabricating evidence, conspiracy to murder and the bribery and corruption of the prosecutor and judges in criminal proceedings in Russia.
Having obtained the appropriate permission from the court, the claimant took steps to serve the proceedings on the defendant in Moscow under the Hague Convention. However, the validity of those steps was contested.
The general scheme of the Hague Convention is that each contracting state designates a central authority which undertakes to serve documents under the terms of the convention on request made by another contracting state. Article 5 of the Hague Convention provides that a central authority:
"shall itself serve the document or shall arrange to have it served by an appropriate agency… [including by] by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory."
Having been informed by the defendant's (then) English solicitors that they had no instructions to accept service, the claimant filed the claim form and accompanying documents (with translations) at the Foreign Process Section of the High Court. A request was made to Russia for service of those documents pursuant to the Hague Convention.
The defendant was subsequently summoned to appear at a hearing before the Tagansky District Court on October 25 2013, for execution of the service request, by:
The defendant did not appear at the October 25 2013 hearing, but the Tagansky District Court determined that she had been duly notified of the hearing at her Novospassky address, and proceeded with the hearing in her absence. Despite having proceeded with the hearing in the absence of the defendant, the Tagansky District Court subsequently certified on the standard Hague Convention form that the claim form and accompanying documents had not been served "by reason of the non-appearance of O Romanova [the defendant]". Subsequently, the Russian Ministry of Justice passed the documents back to the English courts "in connection with an inability to execute a request for the service of judicial documents upon O Romanova", stating that "the request was not executed owing to the failure of [the defendant] to attend the appointed court hearing".
Meanwhile, a Moscow advocate acting for the claimant made a further attempt to serve the proceedings on the defendant. According to the advocate's evidence, she handed the relevant documents personally to the defendant on July 6 2014 at her Moscow office. The defendant took receipt but declined to sign an acknowledgement. Further, the advocate also arranged for the documents to be delivered by registered post to the Novospassky address and they were recorded as having been received by the defendant's husband.
The defendant filed an application challenging jurisdiction and disputing that service had been effected. In her supporting witness statement, she asserted that service of documents by registered post to her home address did not amount to valid service under Russian law or, by extension, under the Hague Convention. She stated that service in Russia under the Hague Convention should be by summons to court, but that "[She] was not at any point summoned to any court of the Russian Federation".
On the application to the English High Court, the judge noted that the defendant had not responded to the claimant's evidence, including in relation to her summons to the hearing before the Tagansky District Court. The judge concluded that, contrary to the defendant's witness statement, she had received the telegram from the Tagansky District Court summoning her to appear before that court. In reaching his conclusion regarding the veracity of the defendant's evidence, the judge noted that in his view, "the defendant had consciously failed to disclose the fact of that visit" to her office on July 6 2014 by the claimant's Moscow advocate.
It was accepted by the claimant that under Russian law, service by registered post is not valid service. Further, no suggestion was made that personal service on the defendant is valid service under Russian law.
However, the claimant contended that, nevertheless, service had been validly effected on the defendant (a 'service recipient'). The claimant relied on expert evidence as to the procedural rules for valid service in Russia and whether those rules had been complied with in this case (the defendant had the opportunity to do so, but did not file her own expert evidence on this point).
The expert's evidence was that the Russian procedural rules provided for the execution of a request for service from a foreign court pursuant to the Hague Convention by summons to a hearing, but that if the service recipient refuses to accept the summons, he or she is deemed to have been notified. There is no separate procedure for serving the documents on the defendant. The report stated:
"If the Service Recipient does not appear at the Service Hearing having been duly notified, the Serving Court is not required to take any further steps to notify the Service Recipient and can proceed with the Service Hearing."
The report referred to a court decree which was summarised as stating that "if a Service Recipient notified of the Service Hearing refuses to take receipt of the documents at the Service Hearing he/she is deemed served with regard to the court proceedings abroad."
Accordingly, under the Russian procedural rules, the expert's view was that there is no difference between a situation in which a recipient appears, but refuses to take receipt of the documents, and one in which the service recipient fails to appear at the hearing. The expert therefore concluded that the procedural steps taken in the present case "were sufficient and constitute effective service".
Having considered the relevant part of the expert report and the key authority on which it relied, and notwithstanding the evidence to the contrary in the form of the certificate from the Tagansky District Court, the judge was "persuaded that in Russian law the steps taken would be considered sufficient to effect service on the defendant". As such, the proceedings had been served in accordance with the Hague Convention and English Civil Procedure Rule 6.40. The judge was fortified in reaching this conclusion by a point raised by the claimant's counsel that it would be a strange and improbable gap in Russian procedural law if it permitted a defendant to evade effective service of proceedings by simply not turning up at a service hearing.
Given the continuing prevalence and importance of proceedings involving Russian litigants before the English High Court, this case provides a useful guide as to what constitutes good service of English proceedings in Russia. It also serves as a reminder that reliable expert evidence can sway the court, even when apparently contradicted by a certificate from the Russian court.
For further information on this topic please contact Andy McGregor or Alan Williams at RPC by telephone (+44 20 3060 6000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(1)  EWHC 545 (QB).
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