Bush v Baines, Taylor and Attorney General

• Jurisdiction: Cayman Islands
• Judge: (Mangatal, J.)
• Judgment Date: 11 October 2016
• Court: Grand Court (Cayman Islands)
• Date: 11 October 2016

Grand Court

(Mangatal, J.)

BUSH

and

BAINES, TAYLOR and ATTORNEY GENERAL

G. Cox, Q.C. and I. Huskisson for the plaintiff;

M. Griffiths, Q.C. and D. Schofield for the second defendant.

Attorneys: Travers Thorp Alberga for the plaintiff; Attorney General's Chambers.

Cases cited:

(1) AB Jnr. v. MB, 2013 (1) CILR 1, referred to.referred to.

(2) Abela v. Baadarani, [2013] UKSC 44; [2013] 1 W.L.R. 2043; [2013] 4 All E.R. 119, applied.

(3) Ahmad Hamad Algosaibi & Bros. Co. v. Saad Invs. Co. Ltd., 2010 (2) CILR 289, referred to.referred to.

(4) Al-Malki v. Reyes, [2015] EWCA Civ 32; [2016] 1 W.L.R. 1785; [2016] 2 All E.R. 136, applied.

(5) Cable & Wireless (C.I.) Ltd. v. Information & Communications Technology Auth., 2007 CILR 273, considered.considered.

(6) Cecil v. Bayat, [2011] EWCA Civ 135; [2011] 1 W.L.R. 3086; [2011] C.P. Rep. 25, applied.

(7) Chile Holdings (Cayman) Ltd. v. Santiago de Chile Hotel Corp. S.A., 1997 CILR 319, considered.considered.

(8) Deutsche Bank AG v. Sebastian Holdings Inc., [2014] EWHC 112 (Comm); [2014] 1 All E.R. (Comm) 733, referred to.

(9) Embassy of Brazil v. de Castro Cerqueira, [2014] 1 W.L.R. 3718; [2014] I.C.R. 703, applied.

(10) Gabato v. Immigration Appeals Tribunal, 2011 (1) CILR N [6], applied.applied.

(11) Habib Bank Ltd. v. Central Bank of Sudan, [2006] EWHC 1767 (Comm); [2007] 1 W.L.R. 470; [2007] 1 All E.R. (Comm) 53, applied.

(12) Hellenic Lines Ltd. v. Moore, 345 F.2d 978 (D.C. Cir. 1965), followed.

(13) Insurco Intl. Ltd. v. Voluntary Purchasing Groups Inc., 1999 CILR 532, referred to.referred to.

(14) Knauf UK GmbH v. British Gypsum Ltd., [2001] EWCA Civ 1570; [2002] 1 W.L.R. 907; [2002] 2 All E.R. 525, considered.

(15) MRG (Japan) Ltd. v. Englehard Metals Japan Ltd., [2003] EWHC 3418 (Comm); [2004] 1 Lloyd's Rep. 731, considered.

(16) Masri v. Consolidated Contractors Intl. Co. SAL, 2010 (1) CILR 265, referred to.referred to.

(17) Maughan v. Wilmot (No. 2), [2016] EWHC 29 (Fam); [2016] 1 W.L.R. 2200; [2016] 2 FLR 1349, applied.

(18) Memory Corp. plc v. Sidhu, [2000] 1 W.L.R. 1443; [2000] C.P.L.R. 171; [2000] F.S.R. 921, referred to.

(19) Renchard v. Humphreys & Harding Inc. (1973), 59 F.R.D. 530; 17 Fed. R. Serv. 2d 762, referred to.

(20) Saipem SpA v. Dredging VO2 BV, [1988] 2 Lloyd's Rep. 361; [1989] E.C.C. 16, considered.

(21) SociÃÆ'©tÃÆ'© GÃÆ'©nÃÆ'©rale de Paris v. Dreyfus Bros. (1885), 29 Ch. D. 239, considered.

(22) Zumax Nigeria Ltd. v. First City Monument Bank plc, [2016] EWCA Civ 567; [2016] 1 C.L.C. 953, applied.

Legislation construed:

Grand Court Rules, O.65, r.4(1):

“If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order for substituted service of that document.”

Civil Procedure — service of process — substituted service — substituted service (under GCR, O.65, r.4) on ambassador (previously Governor of Cayman Islands) in British Embassy in Mexico permitted by email and courier — personal service legally impossible — not essential to serve through diplomatic channels

The plaintiff brought proceedings against the defendants alleging inter alia malicious prosecution and breach of constitutional duties.

At the commencement of these proceedings, the plaintiff was the leader of the opposition and a member of the Legislative Assembly. He brought proceedings against the first defendant, the Commissioner of the Royal Cayman Islands Police Service; the second defendant, a British diplomat who had been Governor of the Cayman Islands between January 2010 and September 2013; and the third defendant, the Attorney General. The plaintiff alleged, inter alia, malicious prosecution, that the defendants had conspired to cause him to lose political office as Premier of the Cayman Islands, and that in so doing the first and second defendants breached their constitutional duties as Police Commissioner and as Governor respectively.

The plaintiff made an ex parte application to the court for leave to serve the writ of summons and statement of claim on the second defendant, who was now the British Ambassador to Mexico, by way of substituted service rather than personal service. The court granted leave, pursuant to the Grand Court Rules, O.65, r.4, for substituted service by way of delivery by FedEx courier addressed to the second defendant at the British Embassy in Mexico City and by email. Service was subsequently effected.

Order 65, r.4 provided that if it appeared to the court to be impracticable for any reason to serve a document personally on a person, the court could make an order for substituted service of that document.

The second defendant applied to set aside the ex parte order. He submitted inter alia that (a) the plaintiff had failed to make full and frank disclosure, including failing to draw the judge's attention to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention provided that contracting states would designate a Central Authority that would undertake to receive requests for service from other contracting states- Mexico had designated the Ministry of Foreign Affairs); (b) the order didnot satisfy the requirements of an order for substituted service, as it was not a case of practical impossibility; (c) the court had been incorrectly referred to the Vienna Convention of 1967 (which was not applicable to the second defendant) rather than the Vienna Convention of 1961 (which provided that the premises of an embassy, the person of a diplomat and his private residence were inviolable); (d) no attempt had been made to comply with the Hague Convention; (e) it did not appear that any evidence had been put forward as to Mexican law on service of proceedings; (f) the methods of service provided for in the ex parte order did not comply with Mexican law; and (g) the proper way to serve a British diplomat in Mexico would have been through the Mexican Ministry of Foreign Affairs using the note verbale procedure.

The second defendant's summons had inadvertently been filed out of time and he therefore filed a second summons seeking an extension of time. It was submitted that the delay had caused no prejudice to the plaintiff.

The plaintiff opposed both applications on the basis that the writ and statement of claim had now been served on the second defendant and these applications therefore served no purpose other than to cause unnecessary delay. He submitted inter alia that (a) personal service on the second defendant would have been impracticable; (b) the substituted service had in fact successfully notified the second defendant of the proceedings; and (c) there was no evidence that the chosen methods of service contravened the general law of Mexico.

Held, ordering as follows:

(1) The application for an extension of time would be granted. There were three stages of enquiry when considering applications for extension of time: (a) identifying and assessing the seriousness and significance of the default; (b) identifying the cause of the default; and (c) evaluating all the circumstances of the case. The court should consider in the round whether there was an acceptable reason for the delay that justified departing from the time limits and whether granting an extension would prejudice the other party. The delay in the present case could not properly be regarded as serious or significant. Whilst the reasons for the delay were not altogether satisfactory (namely careless mishaps), the plaintiff had not been prejudiced in any way. In particular, his counsel had already been served in the correct time with supporting affidavit evidence and the listing form, which indicated the very matters which the summons would seek. With regard to all of the circumstances, dealing with the application justly required the court to grant the extension sought (paras. 49-52).

(2) The second defendant's application to set aside the ex parte order would, however, be dismissed. In the present case, service by email and by courier were acceptable methods of substituted service. There was no settled law or evidence to suggest that an ambassador had to be served through diplomatic channels. Indeed, service through this process had been described in previous authorities as unreliable or difficult. In anyevent, the process suggested by the second defendant was very roundabout and circuitous. The second defendant had received notice of the plaintiff's claim by email and courier without any personal service having been effected on him. His objection was very technical. The correct Vienna Convention should have been brought to the judge's attention at the ex parte hearing and there should have been some discussion of the Hague Convention. Non-disclosure did not have to be intentional to be critical, indeed the failure to observe the golden rule of full and frank disclosure on ex parte applications could entitle the court to discharge the order even if the circumstances would otherwise justify the grant of relief. However, a due sense of proportion must be maintained. It would be disproportionate and contrary to the overriding objective of dealing with cases justly to set aside the ex parte order. It could not be said that if service by email were allowed then no one would proceed via the route of the Hague Convention. In the unusual circumstances of the present case, substituted service was appropriate because it was legally impossible, and therefore impracticable, to serve the second defendant personally (paras. 108-117).

(3) The following principles were derived from the Grand Court Rules, the case law and the Hague Convention:

(a) The purpose of service of proceedings was to bring the proceedings to the notice of a defendant. It was not about playing technical games.

(b) A writ for...