Asefa Yesuf Import and Export v A.P.Moeller-Maersk
In this Admiralty Court decision handed down this morning, Alexander Thompson, acting for defendant shipowners AP Moller –Maersk AS, successfully challenged the jurisdiction of the High Court under CPR Part 11 on the basis that there was no valid service on Owners under the EU Service Regulation. Simon Bryan QC sitting as Deputy Judge of the High Court found that service of an English claim form by an English solicitor directly on Owners in Denmark is not permitted by the Service Regulation as applicable under Danish law, and thus that there was no valid service by Cargo upon Owners. A key issue in the judgment was the judge’s characterisation that service by an English solicitor under Article 15 of the Regulation was not an example of a permissible method of service carried out poorly, but an impermissible method of service under the Service Regulation. The case is of particular note, since this led the Judge to conclude that the English Court did not have power as a matter of EU law to remedy the errors. In any event, the Judge held that he would not have exercised his discretion under CPR 6.15 and/or 6.16 and/or 3.10 to remedy the errors, even if the English Court had such a power. On that point, a firm warning can be found in the judgment for legal advisors. Notwithstanding any lack of prejudice suffered by Owners, the Judge stated: ‘ultimately the rules as to service are there to be obeyed, all the more so in the context of a regulation such as the Service Regulation. What was done here was too little, too late, does not amount to a mere error of procedure …’
A detailed briefing note on this will be published later today.