Court expansion of the concept of due service of foreign summons on a defendant in Sri Lanka
Courts in Sri Lanka are statutorily empowered to register and enforce judgments delivered by Courts in foreign jurisdictions. The Reciprocal Enforcement of Foreign Judgments Ordinance No. 41 of 1921 (the Ordinance), provides for such registration and enforcement of any judgment, decree or order given or made by a specified foreign court[1], in any civil proceeding whereby any sum of money is made payable[2]. In such instances, the judgment – creditor may seek relief from the Sri Lankan Court to register and enforce the foreign judgment as if it were a judgment delivered by the Court of Sri Lanka itself, against a judgment – debtor. One of the grounds on which a Sri Lankan Court will refuse to register a foreign judgment is that the judgment – debtor was not “duly served” with the summons of the original foreign court and therefore did not appear in the proceedings before the foreign court. This question of what constitutes due service of summons has been raised in several appeals against the registration of a foreign judgment and in resisting such registration. This article examines prevailing judicial interpretation of the nature and scope of due and proper service of summons under the Ordinance.
[1] The Ordinance originally applied only to judgments obtained in the superior courts of the United Kingdom and of other parts of Her Majesty’s realms and territories, as specified in the Schedule. The Schedule has since been expanded to include other specified jurisdictions.
[2] Section 2 (1) of the Ordinance
Section 3 (2) (c) of the Ordinance provides that,
“No judgment shall be ordered to be registered under this section if –
The judgment – debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear notwithstanding that he –
In any form of civil litigation commenced by one party against another, a primary step of the initial process is the notification by court to the defendant that an action has been filed against him and that he is required to appear in court and make a defence. Our Courts have consistently recognized and affirmed that effective service of summons on a defendant is a condition precedent to the assumption of jurisdiction over such defendant[1] and that any judgment is a nullity when it is obtained against a defendant who has not been served with summons or otherwise notified of the proceedings against him[2].
While the Civil Procedure Code makes detailed provision for the manner in which summons are to be served by Sri Lankan Courts within Sri Lanka on party defendants in actions filed before the Courts of Sri Lanka[3], the Mutual Assistance in Civil and Commercial Mattes Act No. 39 of 2000 (the Mutual Assistance Act), stipulates in detail the procedure for the summons of a foreign court to be served on a party defendant in Sri Lanka.
In accordance with the Act, where a foreign court requires summons to be served on a defendant within Sri Lanka, the following procedure will apply[4]:
[1] Ittepana vs. Hemawathie [(1981) 2 SLR p. 476]
[2] Fernando vs. Sybil Fernando and Others [(1997) 3 SLR p. 11]
[3] Sections 55, 59 – 71 of the Civil Procedure Code
[4] Section 6 (1) of the Mutual Assistance Act
[1] Section 3 of the Mutual Assistance Act
[2] Section 6 (2) of the Mutual Assistance Act
[3] Section 6 (3) of the Mutual Assistance Act
The aforementioned process under the Mutual Assistance Act, which involves the intervention of the Ministry of Justice, inevitably consumes a longer period of time than if summons were directly served by the foreign court on the defendant. Consequently, most plaintiffs in proceedings before foreign courts consider it expedient to circumvent this procedure by directly serving summons on a defendant in Sri Lanka by other speedier methods including by email, registered courier or even through personal service. Where a defendant so summoned does not appear in the proceedings before the foreign court and a judgment obtained ex parte against him is sought to be subsequently registered in Sri Lanka, the issue before the Sri Lanka Court would be to determine whether the summons of the foreign court was duly served as required under the Ordinance, notwithstanding non-compliance with the procedure for service as set out under the Mutual Assistance Act.
The aforesaid issue has arisen several times before Courts including in an instance where the summons of a foreign court was served on a defendant in Sri Lanka, in person and thereafter by registered post, by a law firm in Sri Lanka retained by the plaintiff.[1] The District Court held that that the only objective in serving summons in the course of a civil proceeding is to notify a defendant of the maintenance of a case against him and, if the defendant was made aware of such, in whatever manner summons was served, the purpose of service of summons would have been fulfilled. It was held further that even if there is any irregularity in the method of serving the summons, as long as the defendant is not prejudiced thereby and if the purpose of the summons has been effected, court has a duty to conclude that summons has been duly served[2].
This position was re-iterated in Appeal before the High Court of Civil Appeals[3], where their Lordship’s analyzed the scope of Section 14 of the Mutual Assistance Act, which allows for the application of any other law providing for the service of summons in Sri Lanka[4]. The High Court accordingly extended the provisions of the Mutual Assistance Act by interpretation to include any other method of service recognized by law (including a law not passed in Sri Lanka) and any legal principle[5].
[1] James Sutcliffe vs. Carson Cumberbatch PLC [District Court of Colombo Case No. 95/2009/DSP, Order dated 26th March 2010]
[2] In this case, it was stated that the facts should show that the defendant received notice of a case against him with all relevant details. What constitutes “relevant details” has not been elaborated upon and is open to argument at present, but it is safe to assume that a certified copy of the complete brief of the foreign case filed in the foreign court, including all pleadings and proceedings of the said court, should be made available to the defendant with the summons. A mere notice of the institution of the action, without a copy of the brief, could be deemed insufficient to constitute service as it may arguably cause prejudice to a defendant on the basis that he is not made fully aware of the nature of the action filed against him and is thereby deprived of the opportunity of defending himself.
[3] Carson Cumberbatch PLC vs. James Sutcliffe [High Court of Civil Appeals of the Western Province Case No. WP/HCCA/COL/161/2012/F, Judgment dated 16th March 2017]
[4] Section 14 of the Act reads as follows: “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law, enabling the service in Sri Lanka, of any summons or other document issued by a court outside Sri Lanka in relation to a civil or commercial matter, or enabling the taking of evidence in Sri Lanka or the performance of any other judicial act in Sri Lanka, for the purpose of a proceeding in relation to a civil or commercial matter arising outside Sri Lanka”
[5] Page 10 of the Judgment sets out the position of Court as follows – “…the Mutual Assistance Act does not abrogate every other mode of service of summons from courts outside the country, if any, making the procedure laid down by the Act an exclusive method to be followed….such other method, if any, should be one recognized by a law. The law, however, need not be a law passed by a parliament of this country because it says “any other law”, thereby giving it a wider scope. It should also be such law enabling the service in Sri Lanka of any summons etc., in question and as the scope being wide it would include, as it appears to me a legal principle, if any, applicable in this regard too.” [Emphasis added].
The said Judgment did not elaborate on any applicable laws or legal principles that may apply to the service of summons in Sri Lanka, outside of the Civil Procedure Code (for service of domestic summons) and the Mutual Assistance Act (for service of foreign summons), but confirmed the current judicial interpretation that a procedural irregularity, i.e. non-compliance with the provisions of the Civil Procedure Code or the Mutual Assistance Act in the service of summons, will not render such service nugatory. The Judgment expressly stated as follows:
“Therefore to give jurisdiction over a person, as it has been said, what is necessary is to notify that person of the claim against him. What is hence required is the sufficient knowledge of that person at a time before the adjudication of the claim against him about the pendency of the same and not any particular method of service of summons. The reason is because if there is an irregularity of the procedure followed in notifying the person it is a matter of a breach of an ancillary requirement only, the primary requirement, according to the above dicta being the sufficient knowledge of the defendant about the claim against him which will be adjudicated in his absence if he disregards that knowledge on the basis that despite being aware of the claim he was not made known of it in conformity with the ancillary rules of procedure[1]” (emphasis added).
While on the one hand, the approach of the District Court and the High Court of Civil Appeals is commendable in that it prevents a defendant, who is proved to have been notified of the proceedings against him and nonetheless chose not to appear, from stymieing the process of the registration and enforcement of the judgment obtained against him ex parte by raising technical objections to the manner of the service of summons, it would appear that a plaintiff may unilaterally, and without adverse legal consequences, choose to serve summons on a defendant in blatant disregard of statutory procedure and without any reasonable grounds for choosing to circumvent the statutory route. This process would effectively become a double edged sword in light of the fact that by disallowing a defendant from attempting to raise spurious objections relating to the mode of service of summons and thereby delaying the course of justice, a plaintiff would be allowed unfettered freedom to break with statute and assume the function of serving summons, which is a function that should be exclusively within the purview and administration of court, in flagrant violation of all norms of procedural justice. The matter will be finally determined in the Appeal from the aforesaid Judgment of the High Court of Civil Appeals, which is pending before the Supreme Court.
Although, as the law presently stands, summons of a foreign court may be served on a defendant in Sri Lanka outside of the procedure laid down in the Mutual Assistance Act, the burden of proving that the defendant was sufficiently made aware of the proceedings of the foreign court lies on the plaintiff. In order to prevent or pre-empt any delay to the registration and enforcement of a foreign judgment where a defendant maintains that he was not duly served, it is more strategically sound to adhere to the more cumbersome but legally secure procedure for service as set out in the Mutual Assistance Act.
[1] At page 13
Avindra Rodrigo
President’s Counsel
Raneesha de Alwis
Counsel