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Serving overseas – check the rules

 It might sound obvious, but if a firm is instructed to serve proceedings overseas, the firm must ensure that the rules of service in the relevant country are properly observed. The CA recently considered a case applying for permission to extend time for service of a claim outside the jurisdiction. 
 
While working in Dubai, the claimant underwent a series of scans and medical examinations in relation to her pregnancy which did not reveal any foetal abnormalities. Upon the claimant’s return to the UK, she underwent scans which revealed significant disabilities in the foetus – but at a point in the pregnancy when termination was no longer an option. As a result of this, the claimant instructed a firm to bring a claim against the Dubai based hospital for failings in their antenatal care.
 
The firm wrote to the hospital which was initially unresponsive to the correspondence and this was cited as part of the basis for an application to extend the time for service abroad. The HC confirmed that two extensions of time had been properly granted but the CA disagreed. The CA said that undue emphasis had been placed on the initial unresponsiveness of the defendant. It also commented that the firm had not take the ‘elementary precaution’ of taking expect advice on UAE law. The court said: 
 
‘If the prospective or actual defendant is not within the jurisdiction, those acting for a claimant cannot assume that their approaches to a foreign person or entity will receive any particular response, let alone a constructive response. From the point of view of the foreign party, there is, or at least there may be, no reason to respond. Claimants’ representatives need to bear in mind that, unless and until proceedings are validly served on the foreign defendant, that party is under no obligation to respond at all.’
 
The case is a salient reminder to all firms of the risk management staple – if in doubt, don’t accept the instructions in the first place. See Al-Zahra v DDM [2019] EWCA Civ 1103 and reported on www.bailii.org
 

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