Abela v Baadarani

Two things happened when the appeal in Abela v Baadarani 1 reached the Supreme Court. The claim alleged fraud and mis-selling. To establish jurisdiction, the claimant relied on Art.4 of the Brussels I Regulation,2 and thereby on rules for English law which allowed him to apply for permission to serve the defendant out of the jurisdiction. He obtained his permission, but his attempts to effect service according to the letter of the law, whether that law was English or Lebanese,3 were unavailing. Various efforts were made to find out where the defendant was, but no one who knew was willing to say anything useful. Process was delivered to the defendant’s Lebanese lawyer, but he claimed to have no instructions to accept it. Nevertheless, there was more than enough evidence to allow the judge to conclude that the defendant knew sufficiently or perfectly about the proceedings which had been commenced against him in England. In due course the judge made an order under CPR r.6.15(2)4 that the efforts which had been made should stand as good service. The Court of Appeal reversed him.5 Its judgment was in its turn comprehensively criticised and reversed by the Supreme Court. Lord Clarke, in a wholly convincing analysis, with which the rest of the court agreed, held that r.6.15 had allowed the judge to make the order which he had, and the Court of Appeal had had no business interfering. A court has to have a mechanism for allowing a claimant to proceed to judgment even though the defendant has resisted or evaded service, and r.6.15 is part of it. The judgment is a textbook piece of common law and common sense, which refuses to see the slight awkwardness of the wording of the rules as sufficient to frustrate the ordinary resolution of disputes. Points taken by defendants on service, especially where service (or something which might be regarded as a more than fair effort at service) has been attempted within the period of validity of the claim form for service, often have an unattractive cast to them. Such was the case for the defendant, and it got the response which it merited, all done by means of sensible and clear legal reasoning. If the court can forgive a blameless muddle