Bush v Baines, Taylor and Attorney General

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

BUSH

and

BAINES, TAYLOR and ATTORNEY GENERAL

(Mangatal, J.)

Grand Court

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

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 service within the jurisdiction in the Cayman Islands must be served personally on the defendant unless an order for substituted service was made.

(c) A writ for service out of the jurisdiction need not be served personally if it was served by a method that accorded with the law of the country in which service was to be effected.

(d) Where a writ was to be served on a defendant in any country that was party to the Hague Convention, the writ could be served though the authority designated under the Convention in respect of that country or, if the law of that country permitted, through the judicial authorities of that country.

(e) Where the Hague Convention applied, and service could be effected by one of the means provided for under the Convention, then service should ordinarily be effected in that manner. However, an order for substituted service could nevertheless be made in the Cayman Islands on the grounds that it was impracticable to serve the writ personally.

(f) An order for substituted service could be made in relation to a writ for service out of the jurisdiction, however the Rules did not authorize and the court must not order the doing of anything in a country that was contrary to the law of that country.

(g) The words “contrary to the law of that country” in O.11, r.5(2) meant expressly or positively prohibited by the laws of the other country. An alternative method of service might be ordered even if it were not expressly permitted by the foreign jurisdiction. It was not required to be a method permitted by the other country's laws. The method must not be one prohibited by the law of the foreign jurisdiction.

(h) Substituted service of a writ might be ordered where it was impracticable for any reason to serve the writ personally.

(i) “Impracticable” meant a practical impossibility of actual personal service.

(j) The terms of O.65, r.4 were of very wide application and gave a wide discretion to the court.

(k) Service through diplomatic channels might be impracticable.

The overriding objective was to deal with the case justly, expeditiously and economically in interpreting O.65, r.4 and the other relevant rules. A just and reasonable interpretation of the rule was that “impracticable” encompassed legal impossibility (paras. 96-97).

(4) The court derived the following from the Vienna Convention and the case law, authorities and evidence:

(a) Personal service on an ambassador at an embassy was prohibited by art. 22 of the Vienna Convention. The second defendant could not have been served in person at the British Embassy in Mexico.

(b) Personal service on an ambassador was also prohibited at his residence or anywhere else (art. 29 of the Convention).

(c) Service within the jurisdiction by post or by email could be effected on an ambassador at the embassy or private residence.

(d) There was no reason why the same principle would not apply to service on an ambassador outside of the jurisdiction except that the court's leave to serve out of the jurisdiction and for substituted service had to be obtained.

(e) If the British Embassy were to be regarded as governed by UK law, service on a diplomat at an embassy by post or email within the English jurisdiction would be proper service.

(f) Service through diplomatic channels might be difficult and unreliable (para. 98).

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.”

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...