As we have previously referenced here on the London Registrars blog, a process agent in the UK can provide an invaluable service for non-UK based entities.
English court procedure rules require that papers be served in order to start proceedings correctly. However, it can be a lengthy and complex process to attempt to serve such papers abroad, in the event that a party to an agreement does not have an address in England.
It is precisely because of this that many a UK entity providing a service or loan might demand that an overseas entity appoints a process agent in the UK. Such an arrangement typically involves the overseas entity agreeing that service at the UK process agent’s address would constitute proper service for the purposes of the court procedural requirements.
A disagreement over an “incorrect” process agent or address
A fascinating case study of the crucial role that a process agent in the UK can play is provided by one dispute that arose some years ago, in the case of Aquila WSA Aviation Opportunities II Ltd v Onur Air Tasimacilik.
The details of the case were as follows: Aquila, a finance company in Ireland, entered into an aircraft lease agreement with the Turkish airline, Onur Air. Included in the lease was a non-exclusive jurisdiction clause in favour of England, and the lease was governed by English law.
Another important part of the agreement was a process agent clause, which required Onur Air to irrevocably appoint Corporation Service Company (CSC) as its English-based agent for service of proceedings. It was also stipulated by the clause that, in the event of the agent’s appointment being terminated, Onur Air was required to appoint a replacement as soon as practicable.
Prior to completion, a letter was provided by Onur Air, confirming that Corporation Service Company (UK) Limited (CSCUL) had been appointed as its process agent. The letter said that the appointment was effective for one year.
Fast-forward another 15 months, and Aquila tried to serve proceedings on the agent set out in the lease – CSC – at the address given. It turned out, however, that there was no such entity as CSC, with the stated address being a building site.
Aquila then turned its attentions to effecting service on Corporation Services Company Limited (CSCL) at its registered address, relying on the fact that the person who accepted the documents’ delivery confirmed he was able to accept service on Onur Air’s behalf.
Not only this, but Aquila sent copies of the proceedings to Onur Air’s address in Turkey, “for information only”. The airline also accepted that it had become aware of the proceedings.
Despite all this, Onur Air brought an application disputing service, on the grounds that the agent’s appointment had lapsed, and/or service was affected on the wrong entity, and at an address that was not stated in the documents.
English courts don’t look favourably upon parties that unreasonably try to evade service.
The court accepted that the proceedings had not been served with “all the perfection and form which is technically required”. However, it ordered that instead of Aquila being required to make another attempt at serving the proceedings, or making an order for substituted service, the proceedings should be deemed as having been served in a valid manner.
Aquila had demonstrated good reasons for the steps that it had taken, this being a case of a genuine attempt to serve proceedings. It was also noted that CSCL and CSCUL had the same registered address, and were part of the same corporate group.
The court also gave considerable weight to the fact that Onur Air had found out about the proceedings through the initial attempted service on CSCL, in addition to being notified more informally by the copy that was sent to its Turkey address. Indeed, the airline had filed an Acknowledgement of Service within two weeks of service, so it could not be said that Onur Air had been in any way prejudiced.
Overall, the case demonstrates just how powerful irrevocable clauses in contracts can be – and the crucial part that can be played by a process agent in the UK.
It is further evidence that the courts will not allow someone without any control over the appointment of an agent, to be disadvantaged at the hands of a defaulting party. Instead, the emphasis is placed on the importance of the appointing party keeping its arrangements up to date.
The case draws attention, too, to the need to ensure the process agent clause is drafted so that all appropriate provisions are included, not least a mechanism for the nomination of replacement agents.
Our process agent service can help bring your organisation peace of mind.
Are you interested in learning more about how London Registrars can act as your cost-effective and dependable process agent in the UK, helping to ensure your organisation complies with its contractual obligations?
If so, you are very welcome to reach out to us by phone or email, so that you can have an in-depth conversation with us about our expertise and services.
December 2022