Serving Proceedings in Russia: Service Valid Despite Being Returned “Not Served”

In disputes involving international parties, the challenges of serving judicial documents in other countries can be central to an effective overall strategy.

In some countries, it is all too easy for defendants to refuse to accept documents served through official channels and for the documents to be returned to the court of origin.  We have witnessed seemingly absurd rounds of procedural ping-pong as documents are batted back and forth between authorities in different states.

Difficulties in effecting service regularly arise in the context of the service of English claim documents in Russia. Although Russia is a signatory to the Hague Convention[3] on service of judicial documents, service of proceedings in Russia is notoriously difficult to achieve.

The considered this issue in the recent case of Sloutsker v Romanova [4].  This was a libel case involving two Russian nationals (the Court separately considered whether England was the appropriate jurisdiction for the dispute, and concluded that it was).

Attempts at Service

In Sloutsker, the Claimant filed a claim and followed the procedure for serving proceedings out of the jurisdiction under the Hague Convention, by filing the relevant documents with the Foreign Process Section of the Royal Courts of Justice.  The Foreign Process Section duly made a request of the Russian Ministry of Justice, which assigned the documents to the relevant District Court in Moscow to execute service at a “service hearing”, in accordance with Russian Procedural rules.  The District Court issued a summons, which was despatched to the defendant by registered mail and by personal telegram, but the defendant failed to appear at the hearing.

The District Court certified that the documents had not been served due to the non-appearance of the defendant at the hearing and the request for service was returned to the English High Court as having not been executed.  The claimant’s Moscow advocate subsequently made a number of attempts to serve the documents personally, but the claimant did not attempt to argue that this constituted effective service under the Hague Convention.

Service under the Hague Convention

The defendant maintained that service had not taken place in accordance with the Hague Convention, which required that service be effected by a method prescribed by Russian law, and applied to the English court for such a declaration.  In considering whether service had been effected by a method prescribed by Russian law, the Court considered expert evidence on Russian procedural law. The Court also considered the English case of Vis Trading Co Ltd v Nazarov & Ors[5], in which a party had attended the service hearing but refused to accept the documents.

An Improbable Gap

Having considered the case law and expert evidence, the Court considered that “it would be a very strange and improbable gap in Russian procedural law if it permitted a defendant to evade effective service of proceedings by the simple expedient of not turning up at a Service Hearing.”

Instead, the Court was satisfied that, under Russian procedural law, if a defendant had received a summons for a service hearing but simply failed to turn up, service would be deemed to have been validly effected in their absence.

How Will This Help Parties?

This case will give some hope to parties struggling to get confirmation of valid service abroad, in Russia or elsewhere, and illustrates that the issue of validity is a matter to be determined by the English court, applying the applicable procedural law.  You may be able to establish valid service even in the absence of confirmation from a foreign state.

Of course, in some circumstances, the risk may be that issues over service will come back to haunt the claimant when it comes to international enforcement and so considering the long term strategy is key. Practically speaking, those attempting to serve proceedings in Russia should ensure that they comply with and exhaust the available procedural avenues for executing service and keep clear records of the steps taken.

For international parties considering contracting with Russian parties, stipulating an agreed service address or service agent within their own jurisdictions, or inserting an arbitration clause with appropriate notice provisions into the contract could save considerable time and effort should something later go wrong.

Andrew Barlett, Daniel Hayward.

Andrew is a partner and Daniel is a Senior Associate with Osborne Clarke in London.

[3] Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965

[4] [2015] EWHC 545

[5] [2013] EWHC 491 (QB)

Reprinted with permission of the authors