Serving proceedings in Russia: Service valid despite being returned "not served"

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

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 English High Court 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. 

[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)