CPR 6.40(3) lists service in accordance with EU Regulation 1393/2007 (the “Service Regulation”) as one of several permissible methods of service of proceedings out of the jurisdiction. However, service under the Service Regulation is actually the only permissible method of service where proceedings are served on the territory of a Member State in respect of a civil or commercial matter (see C-325/11 Alder v Orlowska [24-25]).
In Asefa Yusuf v A.P. Moller [2016] EWHC 1437 (Admlty) cargo claimants’ English solicitor purported to serve proceedings on shipowners in Denmark in which the Service Regulation applies by virtue of a declaration made by Denmark ([2008] OJ L331/21). However, art. 15 of the Service Regulation provides that service may be made “through the judicial officers, officials or other competent persons of the member state addressed, where such direct service is permitted under the law of that member state.” In the case of Denmark this meant service through a bailiff. Accordingly service was not within art.15 and Simon Bryan Q.C. , acting as a Deputy Judge of the English High Court, held that there could be no exercise of discretion under any English CPR Rule (such as CPR 6.15, 6.16 or 3.10). This could only be done if there was service within Article 15 with minor errors of procedure, but this was not the case here where service was effected through an English solicitor, rather than through a Danish bailiff.
Accordingly the High Court had no jurisdiction to try cargo’s claim against owners and the Admiralty Claim Form and service of the Admiralty Claim Form were set aside.
