Dispensing of Service of Claim Forms in Exceptional Circumstances – Havlish v Islamic Republic of Iran et al

By Michael Stocks


In June, the High Court handed down a judgment which provided further insight into when a party can claim "exceptional circumstances" and so dispense with service of (in this case) a claim form pursuant to CPR 6.16. There is very little guidance on what constitutes 'exceptional circumstances' and therefore this decision is a welcome addition to the case law relevant to this issue.

In Fiona Havlish et al v Islamic Republic of Iran et al[1] the claimants were representatives of individuals who were victims of the 9/11 terrorist attack in New York. Having obtained a $7bn judgment against the defendants[2] from the United States District Court for the Southern District of New York, the claimants sought to register that judgment in the UK court and thereafter enforce it on assets held by the defendants in the UK. However, attempts made by the Foreign & Commonwealth Office ("FCO") to serve the claim form on the Ministry of Foreign Affairs in Tehran[3] had been unsuccessful, and as a result the claimants applied to the court for dispensation of service entirely under CPR 6.16.

Difficulties effecting service

The Court was referred to two letters from the Foreign & Commonwealth Office ("FCO") which supported the difficulties the claimants had experienced in effecting service. The first letter was specific to the case at hand and was written by the Deputy Head of Mission at the British embassy to Tehran. He stated that were no realistic prospects of successful service, despite there having been multiple attempts by the embassy to do so. The letter made clear that (i) it is the policy of the Iranian government and its departments to actively resist service of legal documents in cases "which it believes are against the interests of the Islamic Republic of Iran" and (ii) continued persistence in attempting to serve the documents would harm bilateral relations between the two countries. The second letter was from the Premium Service Legalisation Office of the FCO which referenced an earlier case involving service of documents in Iran and Syria. The letter noted that attempts to serve documents in that case had been ‘unsuccessful and counterproductive’.

Taking all this into account, the court held that it was prepared to exercise its discretion under CPR 6.16 to dispense with service as the claimants had shown that these were "exceptional circumstances". The court was mindful that refusing to grant the relief sought would deprive the claimants of the ability to pursue their claims. A further factor that the court relied on was that the defendants were likely to be aware of the proceedings in the US and the judgment against them. Indeed, a spokesman from the Iranian Foreign Ministry had publicly commented on the US judgment as "clumsy scenario-making" by the US. In addition, the defendants were already involved in proceedings relating to the issue before the Luxembourg courts and proceedings had been successfully served on the Central Bank of Iran in Italy, where the claimants were also seeking to enforce a judgment related to the matter. The fact that the defendants were aware of the proceedings, but still sought to obstruct service was a further factor in the Court's decision to exercise its discretion. As a result, the Court ordered that service could be dispensed with.

What is an 'exceptional circumstance'?

Under CPR 6.16 a court will only dispense with service if it is an "exceptional circumstance", but there is no specific guidance as to what constitutes such a circumstance.

Each case will turn on its own facts, but, the court will take into account all circumstances when evaluating if they are "exceptional". For example, circumstances were not considered "exceptional" where a claimant had – at the eleventh hour - served a claim form by fax on a defendant firm of solicitors without having first ascertained if they would be prepared to accept service by such means (Michael Thorne v Lass Salt Garvin (A Firm) [2009] EWHC 100 (QB)). Nor was the court impressed by an application requesting dispensation from service (the deadline for which had expired three months before the application with no extension having been requested) where documents had been posted through a letterbox at a location with which the defendant company had no more than a "transient connection" (Lakah Group v Al Jazeera Channel [2003] EXHC 123). In McManus v Sharif ([2003] 1 WLR) the Court of Appeal overturned a decision of a lower court that retrospectively permitted a claimant to dispense with service of a claim form in circumstances where the claimant solicitor had (again, at the eleventh hour) served a draft of the claim not on the defendant (or her instructed solicitors), but on the defendant's insurers (who had no authority to accept service). The Court of Appeal determined that there had been "significant departures from the rules as to the permitted mode of service" that discretion to dispense with service should not be exercised.

Whilst CPR 6.16 can offer relief to parties where they have tried and failed to serve documents in litigation, in practice, there are very limited exceptions in which the courts will find these circumstances. Left in the wake of the rules surrounding service are the shipwrecks of cases where parties have given scant regard to ensuring service has been effected, and accordingly their applications for dispensation have been dismissed. Parties to litigation (or potential litigation) must be mindful that the court will expect them (at the very least) to have explored all practical possibilities to effect service, and (critically) in good time prior to service deadlines, before they will be prepared to consider exercising their discretion to permit dispensation. Whilst, undeniably, the factual background to the Havlish case is unique, it is a good example of what 'exceptional circumstances' may mean in practice and a useful reminder that instances where the court will exercise its discretion on this issue are rare.

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[1] [2018] EWHC 1478 (Comm)
[2] In addition to the Islamic Republic of Iran, the other defendants against whom judgment was entered included Iran's Supreme Leader Ayatollah Ali Hosseini Khamenei, the former Iranian president Ali Akbar Hashemi Rafsanjani, and other emanations of the Iranian state such as the Iranian Revolutionary Guard and the Iranian Ministry of Intelligence and Security.
[3] Section 12(1) of the State Immunity Act 1978 requires service of proceedings on a state to be transmitted through the FCO to the Ministry of Foreign Affairs of that defendant state, such service to have taken place "when the writ or document is received at the Ministry"