Aditya Khanna & Anor v Navin Khanna & Ors

MR DAVID HALPERN KC :

1. On 13 May 2025 Master Pester made an order for service of these proceedings on the First Defendant (“D1”) (I shall refer to this as the “Order”). The Order provides for (i) service out of the jurisdiction in India, (ii) by email and (iii) with an extension of time to 1 July 2026. No objection has been taken to (i) and (iii), but D1 objects to (ii) and has issued two applications: an application for permission to appeal (granted by Leech J on 6 August 2025) and an application to set aside the Order. Both applications are now before me. In addition, the Second Defendant (“D2”) applies for an extension of time for service of his Defence, if D1 is successful.

2. Many of the issues raised on behalf of D1 have been characterised as “game playing” by Mr Daniel Petrides, counsel for the Claimants (“C”). Mr Duncan McCombe, counsel for D1 and D2, frankly admits that D1 is taking technical points which are not immediately attractive, but insists that it is legitimate for D1 to stand on his rights, so long as he does not take active steps to evade service. It will be necessary for me to consider whether in the present case D1’s approach amounts to game-playing and, if so, what are the consequences. The facts

3. C1, C2 and D1 are all siblings. D2 is D1’s son and D3-5 are companies incorporated in the British Virgin Islands. C assert in their Particulars of Claim that all three companies were controlled by D1 at all material times; D1 has adduced no evidence to the contrary.

4. The Claim Form, issued on 19 December 2024, comprises three heads of claim: i) A claim against D1 and D2 relating to a bearer share giving control of a restaurant business known as the Tamarind Collection. D1 claims that there is a trust over this share for the benefit of members of the Khanna family (including C1). It is alleged that in 2013 the share was transferred to D1 and/or D3 in breach of trust and was subsequently transferred to D1 and D2 in further breach of trust. C1 claims to have discovered this in May 2022. ii) A claim against D1 and D4 relating to 6 Victoria Road, London W8 5RD. It is alleged that this property was held on trust for members of the family (including C1 and C2). It is alleged that in 2011 the property was transferred to D4, who sold it in 2017 to a bona fide purchaser without accounting for the proceeds of sale. Claims are made against D1 and D4. iii) A claim against D1 and D5 relating to flats at 6 Ennismore Gardens London SW7 1NL. It is alleged that the flats are held by D1 and/or D5 on trust for C1, but that they were let to third parties from 2018 without D1 or D5 accounting to C1 for the rents. C1 claims to have discovered this in 2019 and seeks a declaration that the flats are held on trust for him, as well as an account of rents.

5. C issued their application on 26 April 2025. Although it was a “without notice” application, C in fact gave informal notice to W Legal. On 8 May 2025 W Legal wrote to the court, referring to their client as being D2, but said in the course of their letter: “ There is no basis for substituted service on the proposed First Defendant by email in any event ”.

6. On 9 May 2025 C’s application was heard by Master Pester. Since the only issue before me relates to the order for service by alternative means, I shall confine my consideration of the hearing to that issue.

7. At the start of the hearing the Master noted that someone called “Sophie” was attending the hearing remotely. He thought that she was probably someone at W Legal, but he made no formal finding to that effect and merely said that whoever it was did not have permission to make a recording and should leave the hearing.

8. D1 submits that the transcript shows that the only submissions made by C to the Master related to delay and that there was no attempt to weigh the delay against considerations of comity. I do not accept this. Although the Master did not give a formal judgment, I consider that his reasons can be gleaned sufficiently by looking at the evidence and the two skeleton arguments from Mr Petrides that were before him and at the transcript of the hearing. I find that his reasons were as follows: i) Under the Hague Service Convention (“HSC”), India only permits a single method of service, which can take a year to effect. ii) As explained in Marashen Ltd v Kenvett Ltd [2018] 1 WLR 288 (“ Marashen ”) and Celgard LLC v Shenzhen Senior Technology Material Ltd [2020] FSR 37 (“ Celgard ”), it is necessary for the applicant to show “exceptional” or “special” circumstances in order to justify an order for service by alternative means. However, as Lord Sumption said in Abela v Baadarani (set out below), the court is less precious than it once was about the circumstances in which permission is given. iii) Whilst the Master does not expressly refer to comity or to the need to carry out a balancing exercise by which comity is weighed against the circumstances said to justify alternative service, that is implicit in his recognition that this is a case in which exceptional circumstances are required. iv) Although Mr Petrides submitted that delay of 12 months might be close to being of such exceptional length as to be incompatible with the administration of justice, the Master applied Celgard , where it was held that a delay of that order was insufficient, by itself. v) An additional factor, not present in Celgard , is that D2 is within the jurisdiction and D3-5 were due to be served in the BVI in relatively short order (they were in fact served on 28 May 2025). A 12-month delay in serving D1 would hold up the progress of the claims against D2-5. vi) A further additional factor is that D1 appeared to be aware of the hearing, as evidenced by W Legal’s letter. The Master did not expressly refer to game-playing on the part of D1, but Mr Petrides’s second skeleton argument before the Master referred to “ what appears to be the procedural game-playing of D1 in having refused to accept service via W Legal whilst now using W Legal as a vehicle via which to oppose the Application ”. I infer that the Master had this point in mind. vii) The Master held that these additional factors were sufficient, when combined with the delay, to justify service on D1 in India by alternative means, viz. by email.

9. D1 has issued an application to set aside the Order and also appeals against the Order. Both rely on the same grounds, viz.: “1. The Master did not have the power, in the circumstances, to grant alternative service by email as the Claimants had not discharged the burden of showing that it is a method of service permitted in India, as required by CPR 6.40(4).

2. The Master was wrong to find that there was a good reason (for the purposes of CPR 6.15(1)) to grant alternative service by email and/or was wrong to grant permission for alternative service by email pursuant to CPR 6.37(5)(b).” There was a third ground, but D1’s skeleton confirms that it is no longer pursued. Is D1 required to elect between the appeal and the set-aside application?

10. On the one hand D1 discerns a potential advantage in appealing, in that no new evidence may be adduced by C unless C is able to satisfy the court that it could not with reasonable diligence have been obtained for the hearing on 9 May ( Ladd v Marshall [1954] 1 WLR 1489 ). On the other hand, D1 discerns a potential advantage in seeking to set aside the Order, because that requires a re-hearing and not merely a review.

11. In these circumstances C argues that D1 should not be permitted to pursue both applications but should elect between them. In my judgment there is an analogy with a defendant who applies to strike out a claim and also seeks summary judgment dismissing the claim. It is well established that such a defendant may make both applications in the alternative. As Lord Nicholls said in Tang Man Sit v Capacious Investments Ltd [1996] AC 518 at 521-2, election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. In Bank of Scotland plc v Pereira [2011] 1 WLR 2391 at [26] Lord Neuberger MR said that a party who does not attend a trial may seek permission to appeal at the same time as applying under CPR r.39.3 to set aside the judgment. I therefore consider that there is no objection to D1 pursuing both routes, provided that the court considers each ground in relation to each application separately, in order to avoid impermissibly creating a hybrid test.

12. I should also record that at the hearing C was concerned that D1 might seek a second “bite at the cherry” by making an application under CPR Part 11 following acknowledgment of service but Mr McCombe confirmed that no such application would be made. It is therefore unnecessary for me to consider this issue. The set-aside application

13. CPR r. 23.10(1) states: “ A person who was not served with a copy of the application notice before an order was made under rule 23.9 may apply to have the order set aside or varied. ” D1 is therefore entitled, as of right, to apply under CPR r. 23.10 to set aside the Order which was made without (formal) notice under r.23.9. The court is required to rehear the case and not merely to review the Master’s decision.

14. D1 submits that, whilst the court may hear new evidence, that evidence has to relate to facts which existed at the date of the original hearing: Satfinance Investment Ltd v Athena Art Finance Corp [2020] EWHC 3527 (Ch) at [41-43] per Morgan J. C submit that Satfinance was an application to set aside permission to serve out of the jurisdiction and does not extend to an application to set aside an order for alternative service. However in my judgment the underlying rationale is the same, viz. that the court is required to consider whether or not to set aside an order made on a particular date, and hence the evidence must relate to the position on or before that date. However, I also bear in mind the dictum of Hoffmann J (as he then was), quoted in Satfinance at [42], that “ subsequent events may throw light upon considerations which were relevant at that time ”. Ground 1

15. It was faintly submitted by D1 that C’s failure to adduce expert evidence before the Master was a failure to make full and frank disclosure on a “without notice” application. I have no hesitation in rejecting this submission. For the reasons explained below in relation to the appeal, I consider that there was no duty to put this evidence before the Master. But, in any event, the duty to make full and frank disclosure is confined to facts or law which are or may be adverse to the party making the application without notice. It does not apply to points in his favour. Ground 2: the need for “exceptional circumstances”

16. In Abela v Baadarani [2013] 1 WLR 2043 (“ Abela ”) at [20] the Supreme Court confirmed that the power under r.6.15(1) to permit service by alternative means extends to service out of the jurisdiction under r.6.37(5)(b). R.6.15(1) requires the claimant to show “ good reason ” for service by alternative means. Accordingly, the same test applies to service out of the jurisdiction by alternative means.

17. However, where the country in which it is intended to serve proceedings is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (i.e. HSC) and has lodged an objection pursuant to Article 10 to alternative methods of service, it has been held that it is necessary to show “ exceptional circumstances ”. That is the case in relation to India.

18. I was referred to a number of authorities which establish the need for exceptional circumstances, including the following summary of principles given by Foxton J (as he then was) in M v N [2021] EWHC 1360 (Comm) (“ M v N ”) at [8] (approved by the Court of Appeal in Gorbachev v Guriev [2023] KB 1 at [95]): “i) CPR 6.15 (1) provides: "Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place." ii) The fact that the Court is being asked to make an order for alternative service on a defendant domiciled in a HSC country is a relevant factor in considering whether a good reason has been made out: see for example Deutsche Bank AG v Sebastian Holdings Inc [2014] EWHC 112 (Comm) , [19] ("a critically important distinction", Cooke J). iii) In proceedings in which the HSC is engaged, there are a number of cases which have held that merely avoiding delay or inconvenience will not be sufficient to constitute "good reason" (Deutsche Bank AG v Sebastian Holdings Inc, [28]), Societe Generale v Goldas Kuyumculuk Sanayi [2017] EWHC 667 (Comm) , [49(9)(a)]). iv) In those cases where the country in question has stated its objection under Article 10 of the HSC to service otherwise than through its designated authority, it has been held that relief under Rule 6.15 will only be granted in "exceptional circumstances" (Societe Generale, [49(9)(b)], approved at [2018] EWCA Civ 1093 , [33-35]; Marashen Limited v Kenvett Limited [2017] EWHC 1706 (Ch) , [57]; Punjab National Bank (International) Ltd v Srinivasan [2019] EWHC 89 (Ch) ) or in "special circumstances" (if that is different): Russian Commercial Bank (Cyprus) Ltd v FedorKhoroshilov [2020] EWHC 1164 (Comm) , [96-97]. v) There has been some debate as to what the requirement of "exceptional" or "special circumstances" means, but it has generally been interpreted as requiring some factor sufficient to constitute good reason, notwithstanding the significance which is to be attached to the Article 10 HSC reservation (see for example Koza Ltd v Akcil [2018] EWHC 384 (Ch) , [45-49], Richard Spearman QC). vi) However, it is clear that there are circumstances in which an order for alternative service will be appropriate in HSC cases (or to put matters another way, in which good reason for making such an order can be established notwithstanding the HSC factor) .”

19. I take from paragraph [8(v)] of M v N that the term “exceptional” is not being used in its ordinary sense of rarity. That is no doubt why the word “special” is sometimes used instead. I understand it to mean that, although the test is the same in all cases of service by alternative means (i.e. “ good reason ”), the reasons will not be “ good ” unless they sufficiently outweigh the significance attached to comity, where the country in which it is proposed to serve has lodged an objection under HSC.

20. Unsurprisingly, Foxton J refrained from laying down any general test of what constitute exceptional circumstances, since the answer will inevitably be fact-sensitive, but he gave the following illustrations at [9] and [10]: “ [I]t is helpful to consider the types of factors which have been held sufficient to justify an order for alternative service in an HSC case. They include: i) Cases in which an attempt is being made to join a new party to existing proceedings, where the effect of delay in effecting service on the new party under the HSC will be either substantially to interfere with directions for the existing trial, or require claims which there is good reason to hear together to be heard separately: see for example Avonwick Holding Limited v Azitio Holdings Limited and others [2019] EWHC 1254 (Comm) and Evison Holdings Limited v International Company Finvision Holdings LLC [2020] EWHC 239 (Comm) . ii) Cases where the proceedings have been begun with a without notice injunction application, which is to be served immediately or in short order on the respondent. … iii) Cases where an expedited trial is appropriate, and the order for alternative service is necessary to achieve the required expedition (as in Daiichi Chuo Kaisha v Chubb Seguros Brasil SA [2020] EWHC 1223 (Comm) , [47]). iv) It has also been suggested that an order for alternative service might be appropriate when the order sought arises out of a hearing which has already taken place, and delay in service under the HSC might lead to the issues being determined a prolonged period after the fact-finding has been undertaken (Marashen, [67]), or in cases in which the financial consequences of requiring service under the HSC might make pursuit of a low value claim financially unviable (Marashen, [73]). In addition, orders for alternative service are routinely made in the Commercial Court, even in HSC cases, in claims for relief under the Arbitration Act 1996 .”

21. C referred me to the dictum of Lord Sumption in Abela v Baadarani at [53], that: “ It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like exorbitant. The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum .” This is presumably what the Master meant when he said the courts nowadays were less precious than they used to be about this issue (see paragraph 8.ii) above). However, Lord Sumption’s statement was made in a case not involving HSC, which is no doubt why Foxton J did not refer to it in M v N . Indeed, as David Foxton QC he expressly confirmed in Marashen at [57] that Lord Sumption’s dictum did not undermine the importance attached to comity in HSC cases. To that extent I disagree with the Master.

22. Mr Petrides did not argue, either before the Master or before me, that a delay of 12 months was incompatible with the due administration of justice, although he submitted that it came close to it. The issue is therefore whether there are any additional factors which are sufficient to amount to exceptional circumstances, when coupled with the delay. The cases show that the court looks at the position in the round. This means that a factor which, by itself, does not amount to exceptional circumstances, might nevertheless be sufficient when combined with other factors.

23. I have heard submissions in relation to three factors: i) Delay; ii) Multiple defendants; and iii) D1’s conduct. (i) Delay

24. In Celgard at [122] Trower J held that “ a delay of 12 months would be close to the limit beyond which it might be said that it was of exceptional length so as to be incompatible with the due administration of justice ”, albeit that he noted that Mr Foxton QC in Marashen did not regard a delay of similar length as being actually sufficient. In GHS Global Hospitality Ltd v Beale [2021] EWHC 488 (Ch) , Ian Karet (sitting as a deputy judge) upheld the decision of Deputy Master Arkush that a delay of 12 months in serving proceedings in India was insufficient to satisfy this test.

25. I follow the approach taken by Trower J. The fact that 12 months is close to the limit means that fewer, or less weighty, additional factors are required to tip the balance than would be required if the expected delay were shorter. (ii) Multiple defendants

26. C submit that the fact that D2 had been served by 9 May and that D3-5 were about to be served is an additional factor which helps to tilt the balance. C put the point in two alternative ways. One is to say that this is in itself a reason for overriding comity, so that the claims against D2-5 are not unnecessarily delayed. The other is to say that there is a risk that the court might allow the trial to proceed against D2-5 before the trial against D1, which would have unfortunate consequences. I regard this second alternative as fanciful. I agree that it would have very unfortunate consequences if the trial against D2-5 were to proceed ahead of the trial against D1: it would be potentially unfair to D2-5; it would cause a risk of inconsistent judgments; and it would be a grossly inefficient use of judicial resources. It is for these reasons that it is not realistic to contemplate that the court would allow the trial against D2-5 to proceed ahead of the trial against D1. However, the fact that the court would be most unlikely to accede to any such application adds weight to the first alternative.

27. In support of this submission, C rely on the following authorities: i) JSC BTA Bank v Ablyazov [2011] EWHC 2988 (Comm) at [41] , where Teare J ordered alternative service for the following reasons: “ It is clear from Cecil v Bayat that “a mere desire for speed” is not likely to amount to a good or sufficient reason for permitting alternative service. In the present case the Claimant does not rely upon a mere desire for speed. Instead there are grounds for believing that the Second Defendant may refuse to accept service in Russia and there is a risk, though not a great risk, that the delay in service may impede the proper disposal of the Paveletskaya proceedings which involve seven other defendants. Furthermore the Second Defendant has known of the details of the claim sought to be made against him since … almost 6 months before the order for alternative service was made. I consider that this is a relevant matter to be borne in mind though it could not itself justify an order for alternative service. Also, the Second Defendant has accepted service of other proceedings in this court brought by the Claimant against him in connection with frauds allegedly committed by the First Defendant. The reason he has not accepted service of the Paveletskaya proceedings is that he does not wish to have to defend those proceedings now. I consider that this is a relevant matter to be borne in mind but it could not itself justify an order for alternative service because it is the converse of the principle that a mere desire for speed on the part of the Claimant is not a good reason for alternative service .” D1 submits that Ablyazov is distinguishable because the court placed more weight on the potential for evasion of service. I agree that this is so on the facts of that case, but I do not derive any general principle from this. ii) Avonwick Holding Ltd v Azitio Holdings Ltd [2019] EWHC 1254 (Comm) at [33-34], where Moulder J permitted alternative service in a case where the refusal to permit it would seriously delay the progress of the claim against a defendant within the jurisdiction. D1 submits that Avonwick is distinguishable because the defendant who was sought to be served out of the jurisdiction was a late addition to an existing claim, noting that Moulder J agreed with the observation of Cockerill J that “ a number of cases where delay has been dealt with have been looking not at a case of joinder to existing proceedings so that there was no question of ‘falling behind’ ”. iii) Evison Holdings Ltd v International Company Finvision Holdings LLC [2020] EWHC 239 (Comm) , where Teare J said at [61]: “ there is a particularly cogent reason for re-instating the order, namely, that the contempt hearing has been fixed for June 2020 and there is very good reason for that hearing going ahead against all defendants, not just Finvision. If there were two separate contempt hearings when evidence was given of Russian law there would be a risk that inconsistent findings might be reached .” D1’s response is that this case was different because it involved contempt proceedings. iv) Ennis v Apple Inc [2024] CAT 23 where the Competition Appeal Tribunal said at [141-2]: “ The crux of the issue is whether the delay in serving proceedings in accordance with the Hague Convention which, it is not disputed, would prevent the PCR from “catching up” with the Kent proceedings, with both claims being tried at the same time avoiding inconsistent outcomes, is a sufficiently exceptional circumstance to justify alternative service. Whilst, in general the desire of a claimant to avoid the delay inherent in service by the methods permitted under the Hague Convention will not without more justify an order for alternative service, delay causing litigation prejudice is capable of being an exceptional circumstance, as the cases referred to by Foxton J above illustrate. In our view, the loss of the opportunity to catch up with the Kent proceedings, if service was to be effected in accordance with the Article 5 of the Hague Convention, was an exceptional circumstance justifying the order for alternative service. ” Once again, D1 makes the point that this was a case about the late addition of a defendant to an existing claim. D1 also observes that this was group litigation, in which it is particularly important that all claims proceed in tandem.

28. In addition to the submissions noted above in relation to C’s authorities, D1 makes the following further submissions on the law: i) He relies on the fact that Foxton J in M v N at [9(i)] refers to “ cases in which an attempt is being made to join a new party to existing proceedings ” (quoted paragraph 20 above) but Foxton J says nothing about cases in which the defendant sought to be served outside the jurisdiction has been a party from the outset. ii) He refers to Godo Kaisha IP Bridge1 v Huawei Technologies Co Ltd [2021] EWHC 1261 (Pat) at [30-1], where Nicholas Caddick KC (sitting as a deputy judge) accepted that the fact that there was one defendant who did not challenge jurisdiction was clearly a relevant factor, since it was unsatisfactory that the claim against that defendant should continue whilst the claim against the two defendants who did challenge jurisdiction were delayed. Nevertheless, Mr Caddick concluded that this factor was insufficient to make the circumstances exceptional on the facts of that case.

29. In my judgment there are a relatively small number of basic principles which have to be applied to the facts of each case. These are helpfully summarised in M v N in a test which has been approved by the Court of Appeal. The other cases to which I have been referred are little more than illustrations of the application of these principles to the facts of specific cases. It would be wrong to treat these other cases as glosses on the basic test. It is for this reason that I derive little assistance from these other cases, which are decisions on very different facts.

30. I accept that there is a distinction between a defendant who is joined at the outset and a defendant who is a late addition. In a case such as the present, where all the defendants were joined at the outset, it is a relevant factor that HSC is likely to cause a considerable delay, not just in the claim against D1, but also in the claims against D2-5. Nevertheless, it is a factor which deserves less weight than it would deserve in the case of a defendant who is joined as a late addition. In the latter case, the requirement to comply with HSC has the potential to interfere with directions which have already been given for trial, as Foxton J observed in his (non-exhaustive) list of examples in M v N . That would affect the court itself in a way which does not arise in the present case.

31. D1 makes the following submissions on the facts: i) C appears to regard D1 as being the “main” defendant, which I take to mean in colloquial terms that C is seeking to use the tail to wag the dog in relying on the effect of HSC on the claims against D2-5. In response C accept that D1 is the connecting link, since he alone is named in all three heads of claim. I have the impression that C regard D1 as the guiding mind behind the alleged breaches of trust, but it does not necessarily follow that D1 is seen as the most promising target. I therefore attach no weight to this point. ii) The three heads of claim are all somewhat stale, with the first head of claim relating to events going back to 2015. In my judgment that misses the point; on C’s case the relevant date for the first head of claim is 2022, which is the date when C1 alleges that he first became aware of the facts. iii) C have taken a dilatory approach to the proceedings. Mr Petrides fairly accepted that C could have proceeded more swiftly, but he submitted that the delay was not extensive and that C have not missed any procedural time limits. In my judgment C’s delay does not show any lack of seriousness about pursuing these proceedings, nor does it counter the prejudice that they would suffer by being unable to proceed more swiftly against D2-5. I am fortified in this view by Abela at [40], which held that the judge was entitled to conclude that the delay in that case made no difference to the outcome.

32. I conclude that it is relevant that there are multiple defendants and that the need to comply with HSC would delay the claims against D2-5. (iii) D1’s conduct

33. Mr Petrides came close to arguing that D1’s conduct amounted to evading service, but he accepted that this had not been argued before the Master and had not been clearly raised ahead of this hearing. C’s skeleton argument simply referred to D1 “ seeking to play technical games ”. I agree with D1 that “ technical games ” encompasses a spectrum of conduct, from failing to cooperate in effecting service (which I agree that a defendant is not obliged to do) to actual attempts to evade service. C very properly did not press the submission that D was seeking to evade service, but instead relied on the fact that D1 was taking technical and unattractive points in circumstances where he was fully aware of the existence of the proceedings.

34. In support of this submission C rely on: i) Ablyazov at [41] (quoted at paragraph 27.i) above); ii) Abela at [37-39]: “ 37 Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] 1 WLR 2016 , para 55 I said, in a not dissimilar context, that “the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant s case: see eg Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506 , 509, per Lord Brightman, and the definition of service in the glossary to the CPR, which describes it as steps required to bring documents used in court proceedings to a person s attention . . .” I adhere to that view. 38 It is plain from his judgment … that the judge took account of a series of factors. He said that, most importantly, it was clear that the respondent, through his advisers was fully apprised of the nature of the claim being brought. That was because… the respondent must have been fully aware of the contents of the claim form as a result of it and the other documents having been delivered to his lawyers …. As Lewison J said … : “‘The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations.” I agree. 39 In addition the judge had regard to the fact that service through diplomatic channels in Lebanon had proved impractical and that any attempt to pursue it further would lead to unacceptable delay and expense. Furthermore, the judge noted that the respondent was unwilling to co-operate with service of the proceedings by disclosing his address in the Lebanon. While I accept the submission made on behalf of the respondent that he was not under a duty to disclose his address, his refusal to co-operate does seem to me to be a highly relevant factor in deciding whether there was a good reason for treating as good service the delivery of the documents in Beirut within the six months’ validity of the claim form in circumstances in which the documents came to his knowledge .” iii) Societe Generale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS [2017] EWHC 667 (Comm) at [49(3)], where Popplewell J (as he then was) said: “ A critical factor is whether the defendant has learned of the existence and content of the claim form: Abela at [36], Barton at [19(ii) and (iii)]. If one party or the other is playing technical games, this will count against him: Abela at [38]; Barton at [19(vii)]. This is because the most important function of service is to ensure that the content of the document served is brought to the attention of the defendant: Abela at [37]). The strength of this factor will depend upon the circumstances in which such knowledge is gained. It will be strongest where it has occurred through what the defendant knows to be an attempt at formal service. It may be weaker or even non-existent where the contents of the claim form become known through other means. It is well known that sometimes issued claim forms are sent to a defendant “for information only” because the claimant does not want for the time being to trigger the next steps. Sometimes a claim form may be sent in circumstances which although less explicit do not suggest that the sending is intended to amount to service. The defendant may happen to learn of the claim form and its contents from a third party, or a search, in circumstances which might not suggest an intention by the claimant to serve it or to pursue the proceedings, or might positively suggest the revers e.” Popplewell J’s reasoning and decision were upheld on appeal: [2019] 1 WLR 346 at [36]. Whilst I am mindful of D1’s warning that “ technical games ” may cover a multitude of sins, I am satisfied that Popplewell J was using the term to include conduct falling short of evasion. This is clear from his reference to Abela . (Although Popplewell J referred to Abela at [38], the point is made more clearly at [39].) iv) Nokia Technologies OY v OnePlus Technology (Shenzhen) Co Ltd [2022] 1 All ER (Comm) 1384 at [32-33], where Marcus Smith J said: “ I bear in mind that it was considered in Godo Kaisha IP Bridge that delay might suffice to constitute exceptional circumstances when coupled with another factor or factors, such as for example some form of litigation prejudice or whether delay was of such exceptional length as to be incompatible with the due administration of justice. Looking at this balance the prejudice or effect on comity is here slight or non-existent. The fact is that D1 and D3 are not formally but informally totally enmeshed in this litigation. This is not a case of a true stranger being dragged kicking and screaming across the threshold of these courts. … First, there is every indication that D1 and D3 are both well aware of these proceedings. …” I agree with D1 that the relevant defendants in Nokia were much more enmeshed in the litigation, albeit informally, than is D1. Nevertheless I consider that it is relevant, not merely that D1 is aware of the proceedings, but that he has actively engaged with the issues since at least August 2023. v) Olympic Council of Asia v Novans Jets LLP [2022] EWHC 2910 (Comm) at [19(2)], where Butcher J held that there were exceptional circumstances, inter alia because the defendant Gringuz was aware of the proceedings and there was no plausible case that service by alternative means would cause him any prejudice. However he also held at [19(5)] that there were grounds for considering that Gringuz would “ attempt to avoid service and frustrate efforts to effect service ” and that his conduct “ betokens a desire to make service difficult ”. I accept D1’s submission that the conduct described by Butcher J might reasonably be regarded as an attempt to evade service and that this case is therefore of limited assistance to C.

35. In my judgment Abela at [39] makes it clear that conduct in taking technical points to avoid service, albeit falling short of evading service, is a relevant factor but is not by itself sufficient to constitute exceptional circumstances.

36. C relies on a number of facts in relation to D1’s conduct, but I take into account only those which pre-date the hearing before the Master: i) DWF were instructed on behalf of D1 as well as D2 and wrote a 52-paragraph letter to C’s solicitors as early as 25 August 2023 disputing C’s claims and asserting counterclaims amounting to at least £6m and potentially as much as £15m. ii) However, when W Legal were instructed in place of DWF, this was on behalf of D2 alone. Nevertheless, that did not stop W Legal from writing on 8 May 2025 making a submission on behalf of D1 (see paragraph 5 above). iii) D1 must have been aware of the proceedings, because they were served on D2, (who is his son) at D2’s address in London (which is also the address used by D1 qua company director). iv) D1 must have been aware of the hearing before the Master, because notice of the hearing was sent to him by email and was also sent to W Legal.

37. D1 submitted in reply that most of these points were not in evidence and in any event that they did not amount to game-playing. I disagree on both counts.

38. I also note that D1 and D2 intend to instruct the same solicitors and counsel to draft a joint Defence. Mr McCombe mentioned this in the context of D2’s application to extend time for service of his Defence, but it is yet another indication that D1 is fully aware of these proceedings and is playing games to delay service. Although this evidence post-dates the hearing before the Master, it throws light on considerations which were relevant as at 9 May 2025.

39. In my judgment these facts clearly establish both that D1 was at all times aware of these proceedings and that he is taking technical points in order to avoid service.

40. One of C’s submissions at the hearing was that D1 failed to confirm, when asked in correspondence, that D1’s address for service was No 4 Shanti Farms, Chandanhula, Chattarpur Road, New Delhi 110074. At the hearing Mr McCombe confirmed that his instructions were that this address was correct. However, on 2 December 2025 C’s solicitors, Taylor Wessing, informed the court that an attempt had been made to serve on that address on 15 September 2025, which failed because D1 was not found at that address and the process server was told that D1 had been in London for the last 4-5 months. There is a dispute as to what was said and how long D1 had been in London which I am unable to resolve. I accordingly ignore this evidence, which makes no difference to the conclusion I have reached. Conclusion in relation to the set-aside application

41. For the reasons discussed above, it is proper to add together: i) The delay of around 12 months, which is close to being incompatible with the administration of justice; ii) The fact that there are four other defendants, who have all been properly served with the proceedings; and iii) The fact that D1 is plainly aware of these proceedings and is playing technical games to avoid service, in effect seeking to shelter behind an argument based on comity. (I use the term “avoid” in the same sense as it is used in relation to tax-avoidance, as distinct from tax-evasion. I do not base my conclusion on evasion of service, for the reason set out in paragraph 33 above.)

42. Whilst none of these factors is sufficient by itself to outweigh the importance attached to comity, in my judgment the cumulative effect is sufficient to do so. I therefore conclude that there are exceptional circumstances justifying service in India by alternative means. D1’s appeal Ground 1

43. CPR r. 6.40(4) states: “ Nothing in … any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form … is to be served ”.

44. There was no evidence before the Master as to whether service by email is contrary to Indian law. In his order giving permission to appeal Leech J gave permission to each party to rely on expert evidence “ in answer to the Set Aside Application ”. The expert evidence shows, at least on the balance of probabilities, that Indian law does not prohibit service by email. D1 does not challenge this conclusion. However, D1 maintains that there was no evidence before the Master to satisfy r.6.40(4).

45. C submit that the permission to adduce expert evidence extended to the appeal as well to the set-aside application, because Leech J referred to D1 as “ the Appellant ”, but I am satisfied that this was merely for the purpose of identification. Leech J took care to limit the expert evidence to the set-aside application, no doubt because he considered (rightly) that the addition of new evidence on the appeal would be contrary to Ladd v Marshall .

46. However, that leaves the question whether D1 is correct in saying that evidence is always required to satisfy the court that r.6.40(4) is not engaged. D1 relies on the following dictum of Julia Dias QC (as she then was) in Von Pezold v Border Timbers Ltd [2021] 2 All ER (Comm) 762 at [30]: “ CPR 6.40(4) is clear and mandatory in its terms: nothing in any court order should authorise or require a person to do anything which is contrary to the law of the country where service is to take place. This necessarily requires the court to decide what foreign law says about the matter and, whilst this is technically treated as a question of fact, I can see nothing in either the wording of the rule or the policy underlying it to suggest that the standard of proof should be anything less than a balance of probabilities. On the contrary, in my judgment – and particularly bearing in mind that an issue as to whether a particular method of service is contrary to foreign law will arise, and only arise, at the jurisdictional stage of proceedings – considerations of policy and comity require the court to satisfy itself that it is not ordering anything to be done which would be unlawful under the foreign law. Being arguably satisfied is not, in my view, sufficient. I accordingly hold that the Claimant must establish on a balance of probabilities by reference to the evidence before the court that the methods of service in play here were not contrary to Zimbabwe law. ”

47. In Van Pezold Ms Dias applied the test which she had articulated at [30] and concluded, on the balance of probabilities, that the alternative method of service was not contrary to Zimbabwean law. D1 submits that paragraph [30] shows that every claimant who seeks permission to serve out of the jurisdiction by alternative means is required to adduce expert evidence positively establishing that the order sought will not infringe r.6.40(4). However, in Van Pezold itself this procedural issue did not arise, because there was in fact expert evidence on both sides.

48. The CPR does not expressly impose any requirement on a claimant to adduce expert evidence in every case in which an application is made for permission to serve out of the jurisdiction by alternative means. In my judgment paragraph [30] of Van Pezold needs to be read in its context, which is concerned with the substantive test under r.6.40(4); it does not impose an additional procedural hurdle not found in the Rules. A claimant seeking such an order must always satisfy himself that r.6.40(4) will not be infringed, and it would no doubt be good practice to put evidence to this effect before the Master, but there is no requirement to go through a “tick-box” exercise in a case where the claimant is properly so satisfied. I therefore dismiss Ground 1 of the appeal. Ground 2

49. In Abela Lord Clarke said at [23] that a first-instance judge who makes an order for alternative service: “ [is] not exercising a discretion but [is] reaching a value judgment based on the evaluation of a number of different factors. In such a case, the readiness of an appellate court to interfere with the evaluation of the judge will depend on all the circumstances of the case. The greater the number of factors to be taken into account, the more reluctant an appellate court should be to interfere with the decision of the judge. As I see it, in such circumstances an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did .”

50. I have set out at paragraph 8 above the reasons which I find that the Master took into account, even though he did not give a formal judgment. Although my own reasons for reaching same conclusion are more detailed, they are largely the same reasons. I therefore dismiss Ground 2 of the appeal. D2’s application

51. D2 applies for an extension of time to serve his Defence “ so as to align at least approximately with that of D1 ”. As already noted, Mr McCombe has stated that D1 and D2 intend to serve a joint Defence.

52. In view of my conclusions on D1’s application to set aside and/or appeal the Order, this application falls away and is therefore dismissed. Conclusion

53. For the reasons set out above: i) I dismiss the application (i) to set aside the Order permitting service in India by email and (ii) to extend time for service of D2’s Defence; and ii) I dismiss D1’s appeal against the Order.

54. I am grateful to both counsel for their admirably succinct skeleton arguments and excellent submissions. The applications have been hard fought, but with exemplary courtesy and good humour on both sides.