CL-2021-000341 - [2025] EWHC 1684 (Comm)

PROCEDURAL HISTORY

The Claimant issued these proceedings on 28 May 2021. The Claim Form and Particulars of Claim sought the sum of USD 3,114,383.52 (now revised to USD 2,118,534.49) and interest pursuant to section 35A of the Senior Courts Act 1981.

The Defendant is a private limited company registered in the Republic of Sudan and has not appointed solicitors in England and Wales. The Republic of Sudan is not a party to the Hague Convention and, pursuant to Rule 6.40(3)(a)(ii) and Rule 6.42(2), service is normally effected by sending the relevant documents to the Foreign Process Section of the Royal Courts of Justice (the “FPS”), which in turn passes the documents to the Foreign, Commonwealth & Development Office (the “FCDO”) for transmission to the competent local judicial authority for service.

Prior to the issue of the Claim Form, the Claimant’s solicitors, Schjødt LLP, made enquiries of the FPS about the estimated time for service in the Republic of Sudan. The FPS advised that the time for service via this method was unknown. As a result, before handing the documents to the FPS, the Claimant filed an application dated 15 July 2021 to extend the validity of the Claim Form by 12 months to 28 May 2022. This order was granted by HHJ Pelling KC (sitting as a Judge of the High Court) on 19 July 2021.

The Claim Form and accompanying documents were accepted by the FPS and dispatched for service on 26 August 2021.

After failing to receive confirmation from the FPS that service had been effected, on 24 May 2022 the Claimant made another application to extend the validity of the Claim Form by a further 6 months to 28 November 2022. This was granted by Calver J on 10 June 2022. On 8 November 2022, the Claimant applied to extend the validity of the Claim Form by a further 6 months to 28 May 2023. This was granted by Butcher J on 10 November 2022.

After 17 months had elapsed, on 15 November 2022 the Claimant applied for an order permitting service by an alternative method under CPR Rules 6.15(1) and 6.27(1). The order sought was granted by Bryan J on 17 November 2022 (the “17 November Order”) and permitted service on the Defendant:

In late December 2022, Schjødt LLP contacted Mr Osama Ombada, a partner at Aztan Law Firm in Khartoum, Republic of Sudan to seek assistance with service on the Defendant at the two addresses in the Republic of Sudan listed at paragraphs l.a and l.b of the 17 November Order. Mr Ombada advised that the office address was no longer current, and that the Defendant had moved its operations to a nearby building on Abdallah Altayeb Street, adjacent to White Nile Sugar Company in Khartoum, Republic of Sudan.

Consequently, on 27 January 2023, the Claimant applied to vary the 17 November Order and Calver J approved this variation on 30 January 2023.

The Claim Form, Particulars of Claim and other documents (including Arabic language translations) listed in the Annex to Schjødt’s cover letter to the Defendant were served:

As the Contract contained an exclusive English jurisdiction clause, permission was not required to serve the Defendant out of the jurisdiction.

Under CPR 58.6(3), 6.35(5) and PD6B paras 6.1 and 6.2 the Defendant had 22 days from the date of service of the Particulars of Claim to file an Acknowledgement of Service, being:

The Defendant thus had been duly served with and was aware of the proceedings. However, it failed to file an Acknowledgment of Service or a Defence.

On 7 October 2024, Schjødt LLP wrote to Mr Ombada (from who they had previously sought advice as to the permitted methods of service) to seek his assistance with service of the proposed summary judgment application on the Defendant at either of the two addresses specified in the 17 November Order and the 30 January 2023 Order. Mr Ombada responded to say that both addresses were situated in Khartoum which was a “war zone” and that businesses had ceased to operate there since April 15, 2023.

On 15 October 2024, the Claimant issued the present application. On 21 October 2024, Mr Ombada informed the Claimant that the Defendant’s registered address was still in Khartoum and no alternative address was provided. On 31 October 2024, the Claimant effected service of the Summary Judgment Application on the Defendant by sending an email which appended a zip file containing the summary judgment application, as well as a covering letter, to the following three email address detailed in the 17 November Order: [email protected], [email protected] and [email protected]. Mr Walker explained in his 7^th witness statement that service could not be effected at the physical addresses because Khartoum was reported by Mr Ombada to be in a war zone.

On 18 November 2024, Schjødt LLP sent a further email to each of the permitted email addresses and one additional email address listed on the Defendant’s website, [email protected]. The Claimant reminded the Defendant that the deadline for replying to the Application Notice dated 15 October 2024 had expired on Friday 15 November 2024. The email explained that if no response was received to the Application by Thursday 21 November 2024, the Claimant would attend the Court’s Listing Office to fix a hearing date. Schjødt LLP requested read and delivery receipts to this email.

Two of the email addresses, [email protected] and [email protected] returned messages to the effect that “delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server” (a standard message which does not suggest any difficulty has been encountered with delivery), and the other two email addresses returned “undeliverable” messages. No further responses were received from the Defendant to the Claimant’s emails of 31 October 2024 and 18 November 2024.

On 27 November 2024, the summary judgment hearing was fixed for half a day on 2 May 2025. Each of the email addresses upon which permission for service was granted by the 17 November Order and the additional email address mentioned in § 19 above were copied into this email. Later that day, the Claimant sent further emails to the Defendant’s email addresses to confirm the hearing date for the summary judgment application and received the same responses as indicated at § 20 above. I was informed that the Claimant’s skeleton argument and the link for the hearing were also sent to those email addresses.

The hearing duly took place on 2 May 2025. The Defendant failed to appear and was not represented at the hearing, nor made any approach to the Claimant or the court with a view to participating in the hearing. I therefore considered whether to proceed with the hearing in its absence pursuant to CPR 23.11. In doing so I took account, by analogy, of the factors identified by the Court of Appeal in R v Hayward, Jones and Purvis [2001] EWCA Crim 168, [2001] 2 Cr. App. R. 11 at § 22.5.

The evidence showed that:

In these circumstances, I was satisfied that:-

I therefore indicated that I would proceed with the hearing, and asked counsel for the Claimant to ensure that the court was made aware, so far as possible, of such points as the Defendant might reasonably have been expected to make had it been present or represented at the hearing. I am satisfied that this was done, and at the hearing on 2 May 2025 counsel for the Claimant took me carefully through the transaction documents and other relevant evidence.