With the dramatic growth in international business over recent years, many commercial disputes now involve global companies and individuals who may not be resident or domiciled in the UK.
Getting proceedings off the ground can be tricky, as even trying to serve a claim form out of the jurisdiction can be less than straightforward.
Service of the claim form and other documents outside the jurisdiction of England & Wales is covered by section IV of the Civil Procedure Rules (CPR) Part 6, but before launching in, it is important to consider the following:
Supreme Court Ruling
- Obvious as it sounds, first establish that the English Court has jurisdiction. Then consider if there is an alternative to serving the defendant outside the jurisdiction. It may be possible to serve the claim form on a UK branch of a foreign defendant, or via an alternative method covered by CPR 6.15.
- If there is no alternative, then consider whether you can serve outside of the jurisdiction without permission. This is possible in certain situations in Scotland and Northern Ireland and also further afield by virtue of the Civil Jurisdictions and Judgments Act 1982 or the European Regime. Failing that, permission must be sought.
- When applying for permission, the key is to establish whether the claim has a sufficient connection with England & Wales. To do this, Practice Direction 6B.3.1 to the CPR helpfully provides 20 jurisdictional gateways. The claimant will need to show that there is at least a reasonable prospect of success under one of these. Having established this, the court will decide whether or not England & Wales is the 'proper place' to bring the claim, or if it would be more appropriate to bring the claim in another jurisdiction. Finally the court will consider whether there is a serious issue to be tried. An application should be made without notice under CPR 23.
Recently the Supreme Court has taken a practical approach to the subject in the case of Abela v Baadarani  UKSC 44
The case concerned service in the Lebanon, a country not party to any bilateral service conventions with England & Wales. In 2009 the court gave permission for the claim form to be served out of the jurisdiction. After several failed attempts to serve the claim on the defendant, the claimants delivered a copy to the defendant's Lebanese lawyers. Four months later, the papers were returned by the Lebanese lawyers, who stated that they did not have permission to accept service. The claimants applied for an order that the steps taken amounted to good service and for permission to serve the claim form by alternative means.
The order was made, but the defendant successfully appealed. The Supreme Court however, reversed this decision and in the course of his judgment Lord Clarke made some important points regarding alternative methods of service and the scope of CPR 6.15:
- CPR 6.15 can be used to retrospectively validate alternative service outside the jurisdiction;
- a claimant does not need to prove that service would be valid under local law (that said, when it comes to enforcement, you will want to have ensured that service is recognised);
- it was relevant that the country in which the defendant was served is not party to an international service convention;
- exceptional circumstances are not necessary, nor even 'very good reasons'. It is a matter of fact as to whether there is a good reason for alternative service;
- the fact that service through impractical diplomatic channels would cause delay and expense gives weight to the use of alternative service; and
- it was extremely relevant that the claim form had come to the defendant's attention, as this is the point of the rules on service.
The Supreme Court made it clear that this decision does not disregard international service conventions; however, where none are in place, it is of comfort that a thorough and practical approach will be rewarded.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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