Serving outside the jurisdiction—service when no formal jurisdictional regime applies (is permission required?)

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Serving outside the jurisdiction—service when no formal jurisdictional regime applies (is permission required?)
  • Contractually agreed method of service
  • No requirement to obtain permission to serve outside England and Wales
  • Application of CPR 6.33(3)
  • Requirement to obtain permission to serve outside England and Wales
  • The application for permission to serve out of the jurisdiction
  • What the court will consider
  • The application
  • Service of documents other than the claim form
  • Documents to be served with the claim form
  • More...

Serving outside the jurisdiction—service when no formal jurisdictional regime applies (is permission required?)

This Practice Note looks at service of documents outside England and Wales where there is no formal jurisdictional regime in place with the country in which documents are to be served. In such cases, permission of the court is generally required to serve the documents. This Practice Note sets out when permission is required and why. Note that a defendant may still dispute the court’s jurisdiction where the court’s permission has been given permission to serve the claim form outside England and Wales.

The formal regimes are considered in Practice Note: Determining whether permission is required to serve the claim form out of England and Wales.

Contractually agreed method of service

When considering service of documents out of the jurisdiction, one of the first considerations should be whether the parties have entered into a contractual service clause. Such a clause can provide for the method for service or the place for service. If such a clause exists and provides for service in England and Wales this will obviate the need to serve out of the jurisdiction and will considerably simplify the process for service of documents as no permission is required.

The rules on service under a contractual service clause are set out in CPR 6.11. For guidance, see Practice Note: Service of the claim form

by a contractually agreed method (CPR 6.11).

For the rules on service in the jurisdiction, see: Service in England and Wales—overview.

No requirement to obtain permission to serve outside England and Wales

The general rule is that documents must be served within the jurisdiction, ie England and Wales (CPR 6.6(1), CPR 2.3).There is no absolute right to serve a claim form out of the jurisdiction. However, where a defendant is domiciled outside the jurisdiction, it is possible to serve outside England and Wales without the courts’ permission if specific requirements are met. The ability to serve a claim form outside England and Wales is based on the fact that the court has jurisdiction to determine the dispute between the parties. Therefore when determining whether the court’s permission is required to serve outside England and Wales it is necessary to consider issues of jurisdiction.

In certain cases the claimant is allowed to make its own determination as to whether the courts of England and Wales have jurisdiction to determine the dispute between the parties. Where the claimant concludes that the court does have jurisdiction, the court’s permission is not required to serve the claim form outside England and Wales. This applies where:

  1. there is a formal jurisdiction regime CPR 6.33(2) and CPR 6.33(2B)

  2. the parties have agreed a term in their contract to the effect that the courts of England and Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)(b)). For guidance, see Practice Note: Tracker—changes to CPR 6 and practice direction 6B—The Civil Procedure (Amendment) Rules 2021—new rule 6.33(2B)(b)

  3. the court has the power to determine claim(s) in the claim form under an enactment, excluding any power under the CJJA 1982 or the 2005 Hague Convention (CPR 6.33(3)). This is notwithstanding that:

    1. the person against whom the claim is made is not within the jurisdiction; or

    2. the facts giving rise to the claim did not occur within the jurisdiction.

Application of CPR 6.33(3)

The application of CPR 6.33(3) was considered by the Court of Appeal in Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd (2018). Lewison LJ noted that the service out of the jurisdiction practice direction no longer references specific enactments that fall within this rule. Since they were removed from the practice direction, the power of the court to permit service out of the jurisdiction under enactments has to some degree been dealt with by the extension of the jurisdiction service gateways to cover specific types of claims falling within an enactment. In Orexim Trading, the court was considering a claim under section 423 of the Insolvency Act 1986 and Lewison LJ stated that ‘In my judgment the time has now come to say that the court does have power under 'gateway' (20) to permit service of a claim under section 423 outside England and Wales’.

When considering whether a claim falls within CPR 6.33(3), such that the permission of the court is not required, it will therefore be important to consider whether the type of claim falls within a jurisdictional service gateway. For guidance, see Practice Note: Serving outside the jurisdiction with court permission—jurisdictional gateways.

Requirement to obtain permission to serve outside England and Wales

To determine whether permission is required, see: No requirement to obtain permission to serve outside England and Wales above.

The general rule is that documents must be served within the jurisdiction, ie England and Wales (CPR 6.6(1), CPR 2.3). There is no absolute right to serve a claim form out of the jurisdiction.

However, where a defendant is domiciled outside the jurisdiction, it is possible to serve outside England and Wales if permission of the court if obtained. The ability to serve a claim form outside England and Wales is based on the fact that the court has jurisdiction to determine the dispute between the parties. Therefore when determining whether the court’s permission is required to serve outside England and Wales it is necessary to consider issues of jurisdiction.

In all other cases, an application will need to be made to the court for permission to serve the claim form outside the jurisdiction. The court will then consider whether it has jurisdiction and, if so, whether it should exercise that jurisdiction. If it determines that it should, the discretionary powers under CPR 6.36 and CPR 6.37 enable it to grant permission to serve the claim form out of the jurisdiction. If the court considers that it does not have jurisdiction to hear the dispute it will not grant permission to serve out. In such cases, it may still be possible to issue proceedings against the defendant but such proceedings would need to be commenced in the courts which have jurisdiction. Note that a failure to obtain permission, where required, will mean that service of the claim form will be invalid and the jurisdiction of the court could be challenged by the defendant.

For guidance, see Practice Note: Determining whether permission is required to serve the claim form out of England and Wales.

The application for permission to serve out of the jurisdiction

What the court will consider

In determining the application the court will need to be satisfied that the following three requirements have been met:

  1. there must be a 'serious issue to be tried’

  2. there must be a 'good arguable case' (this includes the requirement to show a jurisdictional gateway), and

  3. the court must be 'clearly or distinctly' the appropriate forum (also known as forum conveniens)

For detailed guidance on these, see Practice Notes:

  1. Determining whether the courts of England and Wales have jurisdiction—key requirements

  2. Serving outside the jurisdiction with court permission—jurisdictional gateways

  3. Forum non conveniens—scope and application

  4. Forum non conveniens—connecting factors

  5. Forum non conveniens—requirement for justice

Note that even if the application is successful this does not mean that the defendant will not have grounds on which to challenge the court’s jurisdiction. For guidance on applications to set aside permission to serve out of the jurisdiction, see Practice Note: Service out of the jurisdiction—setting aside an order granting permission to serve out of the jurisdiction.

The application

The application for permission to serve out of the jurisdiction is generally made without notice. In such circumstances, it is important to be aware that there is an obligation to give full and frank disclosure. For guidance, see Practice Notes:

  1. Serving outside the jurisdiction with court permission—application and order

  2. Serving outside the jurisdiction with court permission—full and frank disclosure

For general guidance on making an application without notice, see Practice Note: Applications without notice.

For precedents:

  1. Application notice for permission to serve claim form out of the jurisdiction ACF VOL 21(1) (2015 ISSUE) FOREIGN PROCESS [114]

  2. Precedent witness statement supporting application to serve claim form out of the jurisdiction. ACF VOL 21 (1) (2015 ISSUE) FOREIGN PROCESS [115]

  3. Precedent witness statement supporting application to serve CPR Part 8 claim form out of the jurisdiction. CF VOL 21 (1) (2015 ISSUE) FOREIGN PROCESS [116]

  4. Precedent order granting permission to serve out of the jurisdiction ACF VOL 21 (1) (2015 ISSUE) FOREIGN PROCESS [117]

Service of documents other than the claim form

When serving a claim form, it is important to ensure that all of the required documents, including relevant notes for the defendant, are provided. Procedural errors in relation to the documents served can be time consuming and potentially costly to subsequently rectify. Whether the court will allow the claimant to remedy the procedural error under CPR 3.10 will depend on the circumstances of the case but the court will not condone behaviour it perceives to be unhelpful to defendants, particularly when they are situated overseas and may not be familiar with the relevant court procedural rules of England and Wales. For guidance on the application of CPR 3.10, see Practice Note: Procedural errors and how to remedy them (CPR 3.10).

Documents to be served with the claim form

When serving the claim form, the following will need to be served with it:

  1. particulars of claim—where the claim form does not include the particulars of claim, the particulars also need to be served prior to expiry of the claim form validity period. You may therefore, depending on timing, need to serve the particulars with the claim form

  2. the documents to be served with the claim form are the admission form, defence and counterclaim form and an acknowledgement of service form. These are all in the response pack—Court Form N9. CPR 6.37(5) provides that the court will specify the period within which the defendant may respond to the claim form. The court will use the guidance in CPR PD 6B, paras 6.2, 6.3, 6.4 or 6.5 to determine the time periods

  3. the inclusion of Form N1D is not an express requirement under either a rule or a Practice Direction. From a practical perspective the form should obviously be included but where it is not this is a procedural error which can be remedied by an application can be made under CPR 3.10. The application of this rule in such circumstances can be seen in McLaren Construction (London) Ltd v Greyhound Investing Corporation. In this case, the defendant had not engaged with the proceedings at all. Waksman J was asked to waive the need to provide it under the provisions in CPR 3.10, that if there was such a requirement. The judge stated that he had ‘no difficulty’ with this as the form ‘really only sets out in a little more detail or at greater length what is apparent from the response pack and the orders already

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