– Integral Petroleum SA -v- SCU Finanz SA  EWHC 702 (Comm)
This case involves two Swiss companies who had entered into an oil trading agreement. The buying company (C) commenced proceedings in the Commercial Court against the selling company (D) for failure to deliver.
- Claim Form and response pack were served on D 21st March 2013 at D’s registered postal address in Switzerland.
- On April 15th 2013 D filed an acknowledgment of service, in which, the identity and postal address of D’s lawyer in Paris were given.
- Email exchange then took place between C and D’s lawyer, agreeing an extension of 28 days for service of C’s Particulars of Claim.
- On 10th June 2013 C served their Particulars by way of email to the very address that D’s lawyer had been using to correspond with C.
- D thereafter failed to serve a Defence within 28 days (by 9th July 2013) and so on 17th July 2013 C applied for judgment in default of defence. Judgment was entered in the sum of $1 million the same day.
D applied to set judgment aside on the following grounds:
- That service of the particulars by email was not permitted. The postal address of D’s lawyer in Paris had been provided to C, and in any event the service by C had been 5 days out of time.
- That D had a real prospect of defending the claim.
Mr Justice Popplewell adopted a wide construction of r.3.10, stating that C’s failure to comply with Practice Direction 6A, relating to email service, was an error of procedure which properly fell within r.3.10, and as such did not invalidate the C’s service of their particulars by email. The judge noted that email service was still a ‘permissible method in the circumstances…The document reached the appropriate destination in just the same way as if it had been sent by post to the Paris address given in the acknowledgement of service which would have constituted good service. [D’s lawyer] ought reasonably to have known, as a European accepting the burden of acting for a client in English High Court proceedings, that particulars of claim required to be answered by a defence, and that in default judgment might be entered. What was effected was purported service, not merely transmission for information only”.
The potential implications of such a decision are huge. Rather than relying on relief from sanctions under r.3.9, this case indicates that in some cases r.3.10 may instead be applied, where lawyers have failed to comply with a procedure or Practice Direction.