A v B [2017] EWHC 503 (Comm)
For the Claimant in successfully resisting an application made by the Defendant to set aside an order in favour of the Claimant permitting service by an alternative method on the Defendant’s lawyers in India of an order permitting to enforce an English arbitration award as a judgment.
This case was reported at Lawtel in which the English Commercial Court has upheld an order permitting alternative service of an arbitration-related court order on lawyers in India, who were instructed in the underlying London-seated arbitration. The decision dates back to January 2017 but has only just been published.
The claimant (A) obtained awards against the defendant (B), an Indian company. B did not challenge the awards in the English court but failed to comply with them. A obtained an order from the English court, permitting enforcement of the awards as English judgments. Rather than serving the order on B in India under the Hague Service Convention, A obtained permission for service by an alternative method, on the Indian law firm that had acted for B in the arbitration. B applied to set aside that alternative service order.
Knowles J acknowledged that there had to be good reason for service to take place quicker than under the applicable service convention. Further, the relative speed of service by an alternative method as compared with service under the applicable convention was not, of itself, a sufficient reason for an alternative service order. However, it was a factor for the court to take into account.
In all the circumstances, this was a case where alternative service by an alternative method should be permitted. Otherwise, the delay in the enforcement proceedings would likely be so long that the validity of the claim form would have to be extended. Furthermore, apart from failing to comply with the awards, the defendant had not responded to correspondence and their Indian lawyers had not indicated that they were no longer instructed. At the same time, it was clear that all correspondence sent to those lawyers and to the defendants had been received.
Each case will be considered on its own facts, but this decision lends further support to the proposition that, where the underlying arbitration had its seat in England and Wales, the court will find that there is good reason for alternative service in respect of arbitration applications, particularly those related to enforcement.