Olafsson v Gissurarson [2008] EWCA Civ 152 (03 March 2008)

Olafsson v Gissurarson [2008] EWCA Civ 152 (03 March 2008)

The court held that it had jurisdiction to dispense with service of the claim form under CPR 6.9 in a truly exceptional case where the defendant had received and understood the claim form in time, the only defect being technical non-compliance with foreign law. The exercise of discretion was justified to avoid injustice to the claimant, who would otherwise be barred by limitation, and was consistent with both domestic and international procedural law as clarified by the House of Lords in Phillips v Nussberger (No 3).

Citation
[2008] EWCA Civ 152
Parties
Claimant/respondent: Jon Olafsson; Defendant/appellant: Hannes Holmsteinn Gissurarson
Jurisdiction
England and Wales
Judgment Date
03 March 2008
Procedural Posture
Appeal (civil) / Appeal From High Court Order Dispensing With Service of Claim Form Under CPR 6.9
Outcome
Appeal dismissed
Legal Topics
Service of Process, Dispensing With Service, Lugano Convention, Limitation Periods, Jurisdiction, Default Judgment, Retrospective Validation of Service
Civil Procedure Private International Law Defamation Service of Process Dispensing With Service Lugano Convention Limitation Periods Jurisdiction +2 more

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Parties

Jon Olafsson

Claimant/respondent

Hannes Holmsteinn Gissurarson

Defendant/appellant

Procedural Posture

Appeal (civil) / Appeal From High Court Order Dispensing With Service of Claim Form Under CPR 6.9

Legal Issues

  1. 1 Whether the court had jurisdiction to dispense with service of the claim form under CPR 6.9 in an international case where service was ineffective under foreign law
  2. 2 Whether the exercise of discretion to dispense with service was appropriate in the circumstances
  3. 3 Whether dispensing with service retrospectively is permissible under English procedural law and the Lugano Convention

Ratio Decidendi

The court held that it had jurisdiction to dispense with service of the claim form under CPR 6.9 in a truly exceptional case where the defendant had received and understood the claim form in time, the only defect being technical non-compliance with foreign law. The exercise of discretion was justified to avoid injustice to the claimant, who would otherwise be barred by limitation, and was consistent with both domestic and international procedural law as clarified by the House of Lords in Phillips v Nussberger (No 3).

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court dispensing with service of the claim form under CPR 6.9 affirmed
  • Proceedings to continue on the merits