Commencing a claim - Mechanisms for valid service in another jurisdiction

Learning Outcomes

This article outlines the procedures for serving a claim form on a defendant located outside the jurisdiction of England and Wales. After reading this article, you should understand the requirement to obtain court permission for service abroad, the different methods available for effecting service internationally (including under conventions like the Hague Service Convention and CPR Part 6 rules), and the relevant time limits. This knowledge will help you identify and apply the correct procedures in SQE1 assessment scenarios involving international service.

SQE1 Syllabus

For SQE1, you are required to understand the practical steps and legal rules involved in serving proceedings on a party located outside England and Wales. This includes knowing when court permission is necessary and the criteria for granting it, as well as the main international conventions and CPR provisions governing the methods of service abroad. Your revision should focus on:

• The general requirement for court permission to serve a claim form out of the jurisdiction (CPR 6.36).
• The principal grounds upon which permission may be granted (Practice Direction 6B).
• The procedure for service under international conventions, particularly the Hague Service Convention.
• The alternative methods of service permitted under CPR 6.40 where no convention applies.
• The extended time limit for serving a claim form outside the jurisdiction (CPR 7.5).
• The concept of deemed service in the context of international service.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under CPR Part 6, is permission generally required to serve a claim form on a defendant located in France?
   1. Yes, always.
   2. No, never.
   3. Yes, unless an exception applies or a convention dictates otherwise.
   4. Only if the claim is valued over £100,000.
2. Which international convention provides a primary framework for serving judicial documents between signatory states?
   1. The Brussels Regulation (recast).
   2. The Lugano Convention.
   3. The Hague Service Convention.
   4. The Vienna Convention.
3. What is the time limit under the CPR for serving a claim form outside the jurisdiction after it has been issued?
   1. 14 days.
   2. 28 days.
   3. 4 months.
   4. 6 months.

Introduction

When a defendant resides or is located outside England and Wales, serving the claim form becomes more complex than domestic service. You cannot simply post the documents; specific procedures must be followed to ensure service is valid under both English law (primarily CPR Part 6) and potentially international law or the law of the foreign country. Failure to effect valid service can undermine the entire claim, preventing the English court from exercising jurisdiction over the foreign defendant. This article examines the key steps: obtaining court permission (where required) and the recognised mechanisms for achieving valid service abroad.

Establishing the Court's Power to Serve Abroad

Before a claimant can serve a claim form on a defendant outside England and Wales, they must usually establish that the English court has the power to hear the case against that foreign defendant and grant permission to serve the proceedings abroad.

When is Permission Required?

CPR 6.36 establishes the general rule: a claimant must obtain permission from the court to serve a claim form out of the jurisdiction. However, permission is not required if the court has power to determine the claim under specific statutory provisions (e.g., certain provisions retained from EU law or under the Civil Jurisdiction and Judgments Act 1982 regarding UK defendants) or if the defendant submits to the jurisdiction. In most other cases involving foreign defendants, an application for permission is necessary.

Key Term: Jurisdiction The authority of a court to hear and decide a legal case. In this context, it refers to the power of the courts of England and Wales to adjudicate a claim involving a defendant outside these territories.

Grounds for Granting Permission

To obtain permission, the claimant must satisfy the court that the claim falls within one of the specific 'gateways' set out in Practice Direction 6B. These gateways establish recognised connections between the dispute and the jurisdiction of England and Wales.

Key Term: Practice Direction 6B Gateways Specific circumstances listed in Practice Direction 6B paragraph 3.1 which, if applicable to the claim, provide a basis for the court to grant permission to serve proceedings outside the jurisdiction.

Common gateways include situations where:

• A claim is made against a defendant domiciled within the jurisdiction (though permission might not be needed here).
• A claim is for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction.
• The claim is founded on a contract made within the jurisdiction, made by an agent trading within the jurisdiction, governed by English law, or containing a term conferring jurisdiction on the English courts.
• The claim is founded in tort, and the damage was sustained within the jurisdiction, or resulted from an act committed within the jurisdiction.
• The claim is over property situated within the jurisdiction.
• The claim is against a defendant necessary or proper to be joined to proceedings brought against another person already duly served (a 'necessary or proper party').

The Test for Granting Permission

Simply falling within a gateway is not enough. The claimant must also satisfy the court on three points (as per CPR 6.37):

1. There is a serious issue to be tried on the merits of the claim.
2. There is a good arguable case that the claim falls within one of the PD 6B gateways.
3. England and Wales is the proper place (or forum conveniens) in which to bring the claim.

Key Term: Forum Conveniens Latin for "appropriate forum". The court considers factors like the convenience of the parties and witnesses, the location of evidence, the applicable law, and enforceability of judgments to decide if England and Wales is the most suitable jurisdiction for the trial, compared to another available foreign court.

The burden is on the claimant to demonstrate that England is clearly the appropriate forum.

When Permission is Not Required

As mentioned, permission is not needed if a specific statutory provision grants jurisdiction (check relevant legislation carefully, especially post-Brexit arrangements and the Civil Jurisdiction and Judgments Act 1982) or if the defendant voluntarily submits to the jurisdiction, for example by filing an acknowledgment of service without contesting jurisdiction.

Methods of Service Outside the Jurisdiction

Once permission is obtained (or if it is not required), the claimant must serve the claim form using a method permitted by the CPR and recognised in the destination country.

The Hague Service Convention

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention) is a key international treaty designed to simplify and standardise service between signatory states. The UK is a signatory.

Key Term: Hague Service Convention An international treaty that provides standardised methods for serving legal documents between signatory countries, often through a system of Central Authorities.

Key features include:

• Central Authorities: Each member state designates a Central Authority responsible for receiving requests for service from other member states and arranging service according to its domestic law.
• Standard Request Form: A model form is used for requests.
• Permitted Methods: Service is usually effected by the receiving Central Authority using methods allowed under its internal law. The Convention also permits other methods like service by post or through diplomatic channels, unless the receiving state objects.

Key Term: Central Authority An entity designated by each state party to the Hague Service Convention to receive, review, and execute requests for service originating from other member states.

Service in EU Member States (Post-Brexit)

Following the UK's departure from the EU, the European Service Regulation no longer applies to service between the UK and EU member states for proceedings commenced after the end of the transition period (31 December 2020). Service in EU countries now typically relies on:

• The Hague Service Convention (as all EU members are signatories).
• Potentially, bilateral treaties if agreed between the UK and individual EU states.
• If neither applies, the methods permitted under CPR 6.40 (see below).

Service under CPR 6.40 (Where No Convention/Agreement Applies)

If the destination country is not a party to the Hague Service Convention or any other relevant treaty with the UK, CPR 6.40 governs service. The permitted methods are:

• Through the government of the foreign country, if it is willing to serve.
• Through the British Consular authority in that country (subject to authorisation).
• By a method permitted by the local law of the country where service is to be effected.
• Personal service or delivery to the defendant's address, but only if allowed by local law.

Worked Example 1.1

A claimant in England obtains permission to serve a claim form on a defendant company based in New York, USA. The USA is a signatory to the Hague Service Convention. Which primary method should the claimant's solicitor consider using?

Answer: The solicitor should primarily consider service through the designated Central Authority in the USA under the Hague Service Convention. This involves sending a formal request and the documents to the US Central Authority, which will then arrange for service according to US procedures. Relying on methods under CPR 6.40 would generally be a fallback if Convention service proves impossible or exceptionally difficult.

Service by an Alternative Method

If the claimant encounters difficulties serving by the prescribed methods, they can apply to the English court under CPR 6.37(5)(b)(i) for an order permitting service by an alternative method not otherwise permitted by the rules (similar to CPR 6.15 for domestic service). The claimant must provide a good reason, showing that the chosen alternative method is reasonably likely to bring the claim form to the defendant's attention.

Exam Warning

Always verify the specific service requirements for the destination country. Check if it is party to the Hague Service Convention or other relevant treaties. Relying on an incorrect method will invalidate service. Do not assume methods permissible in England (like standard first-class post) are valid abroad.

Time Limits and Deemed Service

Specific time limits apply to service outside the jurisdiction.

Time Limit for Serving the Claim Form Abroad

CPR 7.5(2) extends the standard 4-month validity period of a claim form. Where a claim form is to be served out of the jurisdiction, it must be served within 6 months of the date of issue.

Deemed Date of Service Abroad

Unlike domestic service, there isn't a single fixed rule for the deemed date of service abroad. CPR 6.40(3) provides guidance depending on the method used under that rule:

• Service through foreign governments, judicial authorities, or consular authorities is deemed effective on the date certified by that authority.
• Service by a method permitted by local law is deemed effective on the date permitted by that local law.

If service is effected under the Hague Service Convention, the date of service is typically the date stated on the certificate returned by the foreign Central Authority.

Revision Tip

Given the variability, always confirm the deemed service rules applicable under the specific convention or local law governing the method used. Diarise the 6-month deadline for service carefully.

Key Point Checklist

This article has covered the following key knowledge points:

• Serving a claim form outside England and Wales generally requires the court's permission under CPR 6.36.
• Permission requires showing the claim fits a PD 6B gateway and that England is the forum conveniens.
• The method of service depends on whether the destination country is party to the Hague Service Convention or other agreements.
• Where no convention applies, service must comply with CPR 6.40, often involving foreign authorities or methods permitted by local law.
• The time limit for serving a claim form abroad is 6 months from the date of issue (CPR 7.5).
• The deemed date of service depends on the method used and relevant convention/local law.

Key Terms and Concepts

• Jurisdiction
• Practice Direction 6B Gateways
• Forum Conveniens
• Hague Service Convention
• Central Authority