European Business Law Update: Spring 2011

Claimants Take Heed

Gulf International Bank BSC v. Ekttitab Holding

Company KSCC and Another [2010] EWHC B30 (Comm)

This recent case teaches a salutary lesson. The Commercial Court held that where the claimant failed to file a Certificate of Service within 21 days of service of the Particulars of Claim (in the absence of an acknowledgment of service being filed by each defendant by then), and in addition failed to serve a response pack with the Particulars of Claim, that judgment in default as entered by the claimant should be set aside.

CPR (Rule) 7.8(1) unambiguously requires a response pack to be served with the Particulars of Claim which must include a form defending the claim, a form admitting the claim and a form acknowledging service.

Rule 6.17(2)(b) states that the claimant may not obtain judgment in default under Rule 12 unless a Certificate of Service has been filed. In this case, the claimant entered judgment in default in breach of this rule. The claimant's counsel submitted that a witness statement had been served which proved service, and thus, the defect in not filing a Certificate of Service had not caused any prejudice. It was noted that the court's indulgence may have been appropriate had this been the only defect.

The second matter was the breach of the similarly mandatory Rule 7.8, which the court held to be of even greater significance. The response pack "highlights the procedural steps which must be taken to prevent judgment being obtained in default." As judgment in default was obtained in the absence of acknowledgment of service, it was crucial that this form which should have been included with the papers that were served, was not. Mr. Justice Simon considered that it was "particularly important when dealing with defendants who are not represented by English solicitors (as these defendants were not at the time), and whose understanding of English procedural law may be less than those who habitually practise in the English Court, that the means of avoiding a default judgment should be made available." This is not to say that careful attention should only be paid to the above Rules where the defendant is foreign.

The court's discretion being unconditional, and the purpose of such discretion being to avoid injustice, on both grounds, but particularly the second, the judgment was set aside. In addition, Mr. Justice Simon found that as a result of the claimant's failure to comply with the pre-action protocol, as no letter before action had been sent to the defendants setting out the essence of the case, the claimant was ordered to pay the defendants' costs.

EC Evaluates EU Directive on Telecommunications Data Retention

On 18 April 2011, the European Commission (EC) adopted an evaluation report of the Data Retention Directive (Directive) outlining the lessons learned since its publication in 2006.

The Directive requires Member States to ensure that telecommunications operators retain certain categories of data (for confirming identity and details of phone calls made and e-mails sent, excluding the content of those communications) for the purpose of the investigation...