The High Court has followed three recent Commercial Court decisions in holding that the court can dispense with service of the claim form in a case against a foreign state.
The claim was for more than $250 million under a commercial loan agreement between the claimant and the first defendant subject to English law and jurisdiction. Section 12 of the State Immunity Act 1978 provides that any writ or other document required to be served for instituting proceedings against a state shall be served by being transmitted through the FCO to the state’s ministry of foreign affairs. However, the claimant was unable to effect service through the FCO because the Eritrean Government had stipulated that any court documents be re-legalised by the Eritrean Embassy, but the Embassy would not cooperate in this process.
The claimant applied for permission to dispense with service of the claim form. The court held that Section 12 should not be interpreted in such a way that a foreign state could frustrate service and avoid its legal obligations altogether. In this case there were exceptional circumstances that justified dispensing with service under CPR 6.16.
This decision is likely to be controversial given the opposite conclusion reached, also at first instance, by Lord Justice Males in General Dynamics United Kingdom Ltd v State of Libya [2019] EWHC 64 (Comm). More certainty may be provided by the forthcoming judgment in the appeal in General Dynamics. (Qatar National Bank v Government of Eritrea and another [2019] EWHC 1601 (Ch) (27 June 2019).)
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