Defendant in fees dispute did not waive personal service requirement

America: Dispute over whether personal service was waived

A defendant who lives in the USA and is being sued for legal fees by his late father-in-law’s solicitor did not waive the requirement for personal service for examination as a judgment debtor, the High Court has held.

Deputy Master Hill QC said she did not find “persuasive” the argument put forward by counsel for Deepak Abbhi that a party “could never agree” to waive the requirement under CPR 71.3.

However, the master said she did not need to reach a final view on the issue because, having considered all the evidence, she was satisfied Mr Abbhi had not done so.

While Deputy Master Hill was equally unpersuaded that a declaration on service could not be made on an ex parte basis, factual disputes over the question of whether or not the defendant had waived personal service made this unsuitable.

The court heard in Slade v Abbhi [2020] EHWC 935 (QB) that Mr Abbhi applied to set aside or vary the terms of an order made by Deputy Master Kay QC in February 2020.

The claimant, solicitor Richard Slade, launched proceedings against Mr Abbhi, alleging that he had undertaken to pay his father-in-law’s legal fees, which were unpaid.

HHJ Russen QC, sitting as a High Court judge, found in the claimant’s favour in September 2018 and, at a quantum hearing in March 2019, ordered Mr Abbhi to pay £430,000. The money was not paid.

Deputy Master Hill said that shortly afterwards Mr Slade was granted an order for examination of the defendant as to his means under CPR 71. The examination was listed for June 2019.

The order for examination and application notice were served by email on Mr Abbhi’s solicitors in April 2019, making no reference to the personal service requirement under CPR 71.3.

In their response, the solicitors took issue with various matters, but also failed to refer to the requirement for personal service.

The examination was stayed in June 2019, when Mr Abbhi was granted permission to appeal against HHJ Russen’s ruling, but the stay was lifted when the Court of Appeal dismissed his appeal last December.

Deputy Master Hill said Mr Abbhi had issued a petition to appeal to the Supreme Court, and a decision was awaited, but he had not argued that the examination should not take place because of this.

M Abbhi’s solicitor wrote to Mr Slade’s firm in January this year, raising the point that the order for the examination had not been served personally, in accordance with CPR 71.3.

Instead of “engaging further” with Mr Abbhi’s solicitor, Mr Slade made a without notice application to Deputy Master Kay QC, who made an order in February 2020 which declared that the requirement for personal service had been waived and delivery of the order and notice of hearing by email was good service.

Mr Abbhi argued that Mr Slade had acted inappropriately in obtaining an ex parte order from Deputy Master Kay, and it should have been served on him personally.

The claimant responded that a “technical point” was being taken around service that “had not been raised” and had been waived in April 2019 when the order was first served.

Deputy Master Hill said the defendant’s solicitor, Paul Matthews, gave evidence that in his April 2019 response he was “unaware of the requirements of personal service” under CPR 71.3, but in a later email in January 2020 he expressly made it clear that he had not waived the requirement.

She set aside Deputy Master Kay’s order.

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