In its judgment in Fridman v Agrofirma Oniks LLC, the Court of Appeal agreed that the rough and the smooth go together: For as long as an individual was precluded from entering the UK, he could not benefit from its laws (the smooth) and therefore could not be made to accept the jurisdiction of its courts (the rough). When assessing whether the court had jurisdiction over an individual, presence was (subject to certain key exceptions) necessary. For the purpose of ascertaining whether the Defendant was only temporarily absent and would otherwise have had the necessary presence in the jurisdiction, their intention to return had to be balanced with their ability to do so.
Summary of the facts
In 2013 Mr Fridman moved to London. In 2016, he acquired Athlone House as a residence for himself and his family. On 15 March 2022, Mr Fridman was designated and his assets were frozen. In addition, his leave to remain in the UK was cancelled and he was not permitted to enter the UK (the “Travel Ban”). Mr Fridman physically left the UK on 27 September 2023. Subsequently, he challenged decisions by the Office of Foreign Sanctions Implementation (“OFSI”) refusing permission to make certain payments (including in respect of Athlone House). The judgment determining those challenges, given on 17 October 2023, recorded that Mr Fridman intended to return to the UK.
On 9 February 2024, the Claimants began the proceedings. Amongst other things, the Claimants posted the Claim Form to Mr Fridman at Athlone House and a paralegal personally delivered a copy there. At least one of the (many) steps taken by the Claimants caused Mr Fridman to become aware of the claim against him.
First instance judgment
Mr Fridman disputed that he had been validly served. At first instance, the judge concluded that: (i) Mr Fridman had not ceased to be a resident within the jurisdiction despite the Travel Ban; (ii) there was a good arguable case that Athlone House was Mr Fridman’s “usual residence” when the claim form was served; (iii) even if that were wrong, Athlone House was Mr Fridman’s “last known” address; the Claimants had taken reasonable steps to ascertain the address of Mr Fridman’s current residence and could not find it, with the consequence that they were entitled to serve the claim form at Athlone House.
CPR 6.9
Where a Claimant does not serve the Claim Form personally, the Defendant has not authorised a solicitor to accept service on his behalf and the Defendant has not given an address for service, pursuant to CPR 6.9, he must be served at his “usual or last known residence”. If the Claimant has reason to believe that the address is no longer one at which the Defendant resides or carries on a business, the Claimant must take reasonable steps to ascertain the Defendant’s current residence or place of business. Having taken those steps, if the Claimant is still unable to ascertain the Defendant’s current address, he must consider whether he needs to apply for service using an alternative method.
Judgment of the Court of Appeal
Lewison LJ, giving a judgment with which the rest of the Court of Appeal agreed, stressed the importance of the common law principle that a person may only be served with process in England and Wales if he is present in England and Wales (presence – and not residence – being the “touchstone” of the principle). This principle, deriving from international law and the principle of territoriality, was one of procedure and jurisdiction.
Plainly, Mr Fridman was not physically present at Athlone House at the date of service, but, as confirmed by Lewison LJ, temporary absence will not negate presence for the purposes of jurisdiction. But was this an instance of temporary absence? In this respect, Lewison LJ accepted Mr Fridman’s argument that cases about temporary absence are predicated on the underlying assumption that the temporary absence was voluntary. In this case, the state had denied Mr Fridman the right to be present in England and Wales and it would have been legally incoherent for the state on the one hand to claim jurisdiction over Mr Fridman whilst simultaneously denying him the right to be present there.
Despite this finding, Lewison LJ considered whether Mr Fridman was present in the wider sense at the date of service. He noted that, whether a particular place is someone’s residence or usual residence is a multi-factorial evaluative judgment, which included consideration of the individual’s intention to cease residing in the jurisdiction. When determining the weight to be afforded to this factor, Lewison LJ considered it necessary to evaluate the prospects of the declared intention being put into effect. Here, whilst Mr Fridman may have wanted to return to the UK, he is legally prevented from doing so for an indefinite period which shows no sign of ending.
Conclusion
As a result of his findings, Lewison LJ found that the court did not have personal jurisdiction over Mr Fridman and his appeal was allowed.
Side-note
Whilst this was not a point in issue, Lewison LJ re-iterated one important statutory exception to the common law principle he had discussed, namely s.1140 Companies Act 2006, which enables a Claimant to serve documents on a director or secretary of a company at their registered address (even if they are not present in the jurisdiction).
