[2025] EWHC 2485 (Ch)

I now turn to consider the question whether Iftikhar was ever validly served with the 2019 English Partnership Claim. The first, and most important, part of this question is whether or not Iftikhar was in fact served with the proceedings out of the jurisdiction, at his home address in Lahore on 27 August 2021. The evidence on this point on behalf of Vaqar is as follows. In his witness statement of 6 January 2025, supported by a statement of truth, Vaqar says:

“4.

Iftikhar has been aware of the proceedings under BL-2019-001900 since 2019. The Claimant obtained an order for out-of-jurisdiction service on 28 September 2020, pursuant to CPR Part 6, from Deputy Master Hansen, permitting service on Iftikhar at 11C Shami Road, Lahore Cantonment, Pakistan.

5.

The relevant documents were posted on 29 July 2021 by the Foreign Process Section and successfully served on 27 August 2021, as confirmed in the Fourth Witness Statement of Prakash Patel. This service was executed in compliance with the court’s directions, and proof of delivery has been filed with the court.”

The Fourth Witness Statement of Prakash Patel is dated 13 April 2022. Mr Patel was and is a solicitor and partner in the firm of solicitors then acting for Vaqar. The witness statement was made in support of Vaqar’s application of August 2021 for an extension of time for service of the claim form. The witness statement was not however seen by Iftikhar until much later, after the decision of the Court of Appeal in December 2024. This witness statement is supported by a statement of truth, and contains the following:

“13.

We have since received confirmation that the documents were delivered to the First and Second Defendants on 27 August 2021. I refer to the proof of delivery and post receipt, as well as the application notices that set out the relevant addresses for the Defendants at pages 3 to 9 of PP4. I also refer to my trainee solicitor’s, Sophie Angus, recent email to the Foreign Process Section on 7 April 2022 providing proof of delivery and thereby discharging the undertakings provided to the Foreign Process Section (PP4 page 10).”

Of course, Mr Patel is not giving first hand evidence of things that he has done or seen. He is relying on the documents provided by UK Royal Mail, which in turn rely on what has been reported by others in Pakistan.

A “post receipt” and two “proofs of delivery” are exhibited to the statement. They are all documents apparently issued by Royal Mail. The post receipt is set out below

The first proof of delivery is set out below:

The second proof of delivery is set out below:

It will be seen that the first proof of delivery relates to item no RZ314260445GB, and the second to item no RZ314260661GB. The post receipt shows that RZ314260445GB was the item addressed to 20B Zafar Road, Lahore, and that RZ314260661GB was the item addressed to 11C Shami Road, Lahore. What is striking is that both items are said to have been delivered at exactly the same time, 10:16 on 27 August 2021, and each signed for by a person with a signature that is identical to the other, and whose name is given in both cases as “SECURITY”. The evidence of Iftikhar before me (unchallenged on this point) was that the two addresses are in fact some 2 km apart. (For completeness, I mention here that it is accepted by Vaqar that the proceedings were not served on the third and fourth defendants.)

The evidence on this point on behalf of Iftikhar is as follows. In the application notice dated 9 December 2024, Adam Polonsky, Iftikhar’s solicitor, says (in box 10 of the notice):

“15.

I am told by Iftikhar that he has not received the 2019 Partnership Action at No. 11C, Shami Road. He does not accept that it was posted to that address, or that he has been served … ”

This statement is supported by a statement of truth.

In Iftikhar’s own witness statement dated 23 January 2025, which is also supported by a statement of truth, he says this:

“6.

It is said by Vaqar that I have been served with the Claim Form in these proceedings however I confirm that neither the Claim Form nor any other document or order relating to the proceedings has never been served on me at No. 11C, Shami Road, Lahore Cantonment, Lahore, Pakistan, or at all.

7.

At the time in question (on 27 August 2021) I was not in Lahore but was residing in Islamabad and the northern areas of Khyber Pakhtunkhwa, Pakistan overseeing the construction of a property belonging to my wife. At page 1, I attach a copy of a registration card for the Richmond Boutique Hotel in Nathia Gali (northern Pakistan) which shows that I was a guest of the hotel between 24 August 2021 and 26 August 2021. After leaving Nathia Gali on 26 August 2021, I returned via Changla Gali to Islamabad where I remained until 8 September 2021, save for a further short visit to Changla Gali.

8.

At page 2, I attach a copy of a courier receipt dated 28 August 2021 which shows a document sent to me in Islamabad (ISB) from Sarwar Road in Lahore (LHR).

9.

At pages 3-4, I attach a copy of an online bank statement from my bank, Meezan Bank Limited, which evidences debit card transactions from my time in northern Pakistan:

9.1

On 25 August 2021 a transaction at the Alpine Hotel & Resort in Nathia Gali in the amount of PKR 4,800;

9.2

On 26 August 2021 a transaction at the Hummingbird Resort & Hotel in Changla Gali (northern Pakistan) in the amount of PKR 1,500;

9.3

On 26 August 2021 a transaction at Hatim supermarket in Islamabad in the amount of PKR 9,941;

9.4

On 26 August 2021 a cash withdrawal from Jinnah Super Branch in Islamabad in the amount of PKR 25,000;

9.5

On 30 August 2021 a cash withdrawal from Jinnah Super Branch in Islamabad in the amount of PKR 39,500;

9.6

On 30 August 2021 a transaction at Capri petrol station in Islamabad in the amount of PKR 3,200;

9.7

On 31 August 2021 a transaction at Capri petrol station in Islamabad in the amount of PKR 2,530;

9.8

On 2 September 2021 a transaction at the Hummingbird Resort & Hotel in Changla Gali in the amount of PKR 10,867;

9.9

On 4 September 2021 a cash withdrawal from Jinnah Super Branch in Islamabad in the amount of PKR 23,500;

9.10

On 6 September 2021 a cash withdrawal from Jinnah Super Branch in Islamabad in the amount of PKR 29,000.

10.

I returned to No. 11C, Shami Road, Lahore Cantonment, Lahore, Pakistan on 8 September 2021. Had any documents been delivered there while I was away I would have been told and they would have been handed to me. No Claim Form or Particulars of Claim from Vaqar were there on my return.

11.

I see that exhibited to Mr Patel’s Fourth Witness Statement dated 13 April 2022, there is a copy of a “proof of delivery” which purports to demonstrate that something was delivered to my address in Lahore (No. 11C Shami Road, Lahore) on 27 August 2021 at 10:16 and signed for by “Security”.

12.

My gatekeeper, who would never identify himself as ‘Security’, has confirmed that the signature evidenced in the proof of delivery is not his signature. He has also confirmed that so far as he is aware no documents from England have ever been delivered to my property.

13.

Moreover, it has been drawn to my attention that the proof of delivery relating to the alleged service of the Claim Form at my property is in all respects identical to that relating to the alleged service of the Claim Form on my brother Sarfraz at No. 20-B Zafar Road, Lahore (bearing the same signature and time). The two addresses are completely unconnected (being approximately 2 km apart) and do not share common security.”

There is a question as to what is the standard of proof involved in resolving this issue. I am not now concerned with the test to be applied by a judge in considering whether to give permission to serve out of the jurisdiction. In such a case the judge will take into account whether jurisdiction has been established under one of the gateways in CPR PD 6B, but also the apparent merits of the claim itself. As to the latter, the test is whether there is a serious question to be tried, that is, a real (as opposed to unreal) prospect of success: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, HL. In effect this is the same test as for resisting an application for summary judgment. As to the former, the applicant must show a good arguable case, or, as it has been put, much the better argument on the material available: Canada Trust Co v Stolzenberg [2002] 1 AC 1, HL; Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, SC. This is a higher standard than a serious question to be tried.

But it is not necessary to demonstrate more than a good arguable case, and in particular not the balance of probabilities. As Lord Steyn said in Stolzenberg (at 13G-H),

“The adoption of such a test [ie the balance of probabilities] would sometimes require the trial of an issue or at least cross-examination of deponents to affidavits. It would involve great expense and delay. While it is true that the jurisdictional issues under the Conventions are very important, they ought generally to be decided with due despatch without hearing oral evidence.”

And it would generally be unwise for a court addressing purely jurisdictional issues to delve too deeply into matters that will be the subject of pleading, disclosure, evidence and cross-examination at trial. So, a test such as serious question to be tried, or good arguable case (the better of the argument) is appropriate.

But what I am concerned with here is whether, permission having been given to serve out, that service has in fact taken place. This is a purely factual inquiry, analogous to that which is made when the judge considers (after the event) whether personal service has been properly effected on a defendant within the jurisdiction. In Tseitline v Mikhelson [2015] EWHC 3065 (Comm), Phillips J (as he then was) referred to this distinction, when he said:

“37.

However, the present case does not arise in the context of an application to serve a party out of the jurisdiction, but is a simple question of whether personal service was effected in the jurisdiction under domestic rules of service.”

Nevertheless, he recorded (at [35]) that it was

“common ground that it is for Mr Tseitline to demonstrate a good arguable case that service was effected on Mr Mikhelson,”

although, because there was a video recording available of what had happened,

“38.

… the parties were agreed that the precise formulation of the standard of proof was unlikely to be of significance in the present case”.

In Gorbachev v Guriev [2019] EWHC 2684 (Comm), HHJ Pearce (sitting as a High Court judge) also said that

“27.

The relevant law on the personal service of a claim form can be summarised as follows:

[ … ]

(ix)

The burden is on the Claimant to show a good arguable case that service was effected on the Defendant - see for example Tseitline.”

I confess to having doubts about this. The merits of the case (and indeed whether it falls within a gateway) will be issues in the case, and addressed at the trial. So, there is a good reason they should not be pre-empted at the jurisdictional stage on necessarily limited material. On the other hand, the actual fact of service will not be such an issue. So, if the defendant says “I was not served”, one might have thought that it should be dealt with like any interlocutory issue of fact, even if witnesses giving evidence in writing are not normally cross-examined on their statements. After all, the High Court has jurisdiction to order disclosure of documents in order to determine a question of jurisdiction, such as whether a defendant was domiciled in England at a particular time, even though it will exercise such jurisdiction only rarely: Rome v Punjab National Bank [1989] 2 All ER 136; Canada Trust Co v Stolzenberg [1997] 1 WLR 1582, CA.

Nevertheless, two judges sitting at first instance have reached the same view and I merely have doubts about that view. In any event, I do not think it makes any difference in the present case. So, I will proceed on the basis that the question of the fact of service is to be determined by asking whether Vaqar has the better of the argument on the material available.

As I have said, there was no cross-examination of witnesses before me. Accordingly, I cannot disbelieve the evidence contained in the witness statements, unless I consider that it was manifestly incredible in light of all the circumstances. Of course, witnesses can be honestly mistaken, and may believe something which is in fact untrue. But I do not think that it is possible for Iftikhar to be honestly mistaken about his own movements in late August and early September 2021, especially when he has produced supporting documents, nor about whether he received any documents on his return to Lahore. He must know that, one way or the other. Nor do I think that his evidence was “manifestly incredible”.

But Vaqar’s case depends on Mr Patel, and he is in a different position. I have no doubt that he, a senior solicitor, is telling the court what he honestly believes to be the truth. However, he is giving no first hand evidence at all. He does not know what happened in Lahore. He is entirely dependent on what (unidentified) others in Pakistan have told Royal Mail, and what Royal Mail have told him. It is all third hand. He could easily be honestly mistaken in asserting that Iftikhar was in fact served. On the material before me, and taking into account not only Iftikhar’s coherent and detailed evidence, but also the striking features of the two proofs of delivery (coincidence in both delivery time and recipient signature), I conclude that Iftikhar, not Vaqar, has the better of the argument. So Vaqar has not established the jurisdiction of the English court over Iftikhar. By parity of reasoning, although he is not a party, the same is true in relation to service on his brother Sarfraz.