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The English High Court has clarified one aspect of service of English proceedings in Russia under the Hague Convention.
The English Courts remain an attractive venue for Russian related
litigation. A claimant wishing to serve proceedings on a Russian based
defendant will invariably need permission from the English Court and several
recent cases have clarified the circumstances in which permission will be
granted. In the case of Sloutsker v Romanova though the issue
that arose was rather how service in Russia could be effected once permission
had been granted. The Court ruled that service of proceedings in Russia had
been validly effected under Russian law notwithstanding that a Russian Judge
had certified to the contrary.
The Facts
Mr. Sloutsker, a
prominent Russian citizen, now resident in Israel, brought proceedings in
England against Ms. Romanova for libel arising from defamatory publications in
this country. Ms Romanova, also a Russian citizen, is resident in Russia.
Service of English
proceedings in Russia ordinarily has to be effected under the Hague Service
Convention. As Russia has opted out of allowing service by post under the
Convention, service is effected by the often painfully slow process of the
English Court sending a request for service to the Russian Ministry of Justice,
which then sends the English proceedings to the relevant court in the area
where the defendant officially resides. That court then summons the defendant
to appear at a Service Hearing to take receipt of the English proceedings.
In this case, the
English proceedings were eventually provided to the Tagansky District Court to
effect service. In accordance with usual practice Ms. Romanova was summoned to
appear before the Court at a specific time and date by way of a telegram, which
according to the Court official was handed to Ms. Romanova in person.
Ms. Romanova failed to
appear at the Service Hearing. The Russian Judge then certified that the
English proceedings had not been served by reason of Ms. Romanova’s non
appearance. The documents were then returned to the English Court via the
Russian Ministry of Justice.
The Decision
Ms. Romanova sought a
declaration from the English Court that she had not been validly served and
denied that she had been summoned to the Russian Court. The English Judge held
that she had in fact been summoned but then had to address the fact of the
Russian Judge’s certificate that service had not been effected. The question
was whether there had in fact been valid service under Russian law. Based on
expert evidence as to Russian law served on behalf of Mr. Sloutsker, the Judge
concluded that there was valid service.
The evidence accepted
by the Court was that under Russian law:
- If the summons is delivered and
received by the recipient he/she is deemed notified of the date and time
of the Service Hearing, even if he/she refuses to accept the summons.
- Based on a Decree of the
Federal Arbitrazh Court of the Urals District, if a recipient notified of
a Service Hearing refuses to take receipt of the documents he/she is
deemed served.
- Under the Russian Civil Procedure Code there is no difference between the situation in which the party appears at the Service Hearing and refuses to take the documents and one in which the party fails to appear at the hearing at all.
While the Judge was
troubled by the fact that the Russian Judge had certified that the defendant
had not been served, he was satisfied that there was effective service under
Russian law. As the Judge observed it would be a strange gap in Russian
procedural law if it permitted a defendant to evade effective service simply by
not turning up at the Service Hearing.
Comments
This decision is
plainly helpful to claimants seeking to serve defendants residing in Russia.
Although the case concerned an individual defendant who resided in Russia, the
same principles should apply to corporations domiciled in Russia.
We understand that Ms.
Romanova is seeking to appeal the decision and a further update will follow its
outcome. For the moment, it is important to note that Ms. Romanova did not
attend, and was not represented at, the English hearing. There was therefore no
evidence before the English Court seeking to challenge the claimant’s expert
evidence as to the correct position under Russian law. Even if Ms. Romanova’s
appeal fails, it remains to be seen whether the Russian Courts would recognise
the validity of an English judgment obtained in the circumstances described in
the Sloutsker case if an attempt is made to enforce the
judgment in Russia.
Sloutsker v Romanova –
[2015] EWHC 545 (QB)
