Commencing a claim - Service of a claim form outside the jurisdiction

Learning Outcomes

This article explains the core principles and procedures for serving a claim form on a defendant located outside the jurisdiction of England and Wales. You will learn when court permission is required for service out, the grounds on which permission may be granted, the different methods of service abroad, and the relevant time limits. This knowledge is critical for handling cross-border disputes effectively in practice.

SQE1 Syllabus

For SQE1, you are required to understand the procedure for serving a claim form outside the jurisdiction. This includes knowing when permission is required, the relevant tests the court applies, and the available methods of service. Pay particular attention to the changes following Brexit regarding service in EU member states.

  • Procedure for service of a claim form outside the jurisdiction (with or without the court’s permission) and mechanisms for effecting valid service in another jurisdiction.
  • Deemed dates of service and time limits for serving proceedings.
  • Service by an alternative method.

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. What is the standard time limit for serving a claim form on a defendant located outside England and Wales?
    1. 2 months from the date of issue
    2. 4 months from the date of issue
    3. 6 months from the date of issue
    4. 12 months from the date of issue
  2. Under CPR Part 6, in which of the following circumstances is permission NOT usually required to serve a claim form out of the jurisdiction?
    1. The claim is based on a contract made within the jurisdiction.
    2. The claim is against a defendant domiciled in Scotland.
    3. The claim involves a tort where the damage occurred abroad but the defendant is English.
    4. The claimant wishes to serve proceedings by email on a defendant in France.
  3. Which convention often governs the service of judicial documents between signatory states, including the UK and many EU countries post-Brexit?
    1. The Brussels Regulation (Recast)
    2. The Lugano Convention
    3. The Hague Service Convention
    4. The Rome I Regulation

Introduction

When a defendant is located outside England and Wales, the process of serving the claim form becomes more complex than domestic service. The Civil Procedure Rules (CPR), primarily Part 6, govern service out of the jurisdiction. These rules establish when a claimant may serve proceedings abroad and whether the court's permission is needed beforehand. Ensuring correct service is essential, as improper service can invalidate the proceedings or lead to challenges regarding the court's jurisdiction.

Key Term: Jurisdiction
The territory over which a court has legal authority. 'Service out of the jurisdiction' refers to serving court documents on a party located outside England and Wales.

Key Term: Claim Form
The formal court document that commences legal proceedings against a defendant located outside the jurisdiction.

Permission to Serve Out of the Jurisdiction

The general rule under CPR Part 6 is that a claimant must obtain the court's permission to serve a claim form outside the jurisdiction. However, there are important exceptions.

When Permission is Required

Permission is typically required unless the case falls into one of the specific exceptions outlined in the CPR (discussed below). To grant permission, the court must be satisfied on three points (CPR 6.37):

  1. Jurisdictional Gateway: There is a good arguable case that the claim falls within one of the specific grounds (or 'gateways') listed in Practice Direction 6B (PD 6B). These gateways cover various scenarios, such as contracts made or breached within the jurisdiction, or torts committed or damage suffered within the jurisdiction.
  2. Reasonable Prospect of Success: The claimant must show that the claim has a reasonable prospect of success on its merits.
  3. Proper Place: England and Wales must be the proper place (or forum conveniens) in which to bring the claim. The court considers factors like the convenience of the parties and witnesses, the governing law, and where the key events occurred.

Key Term: Permission to Serve Out
An order from the court allowing the claimant to formally serve the claim form on a defendant who is outside England and Wales.

When Permission is NOT Required (CPR 6.33)

Permission is not required to serve a claim form out of the jurisdiction in the following circumstances:

  1. UK Service: Service on a defendant in Scotland or Northern Ireland (CPR 6.32).
  2. Contract Cases: Where the contract contains a term providing that the court shall have jurisdiction to determine any claim brought in respect of the contract (CPR 6.33(2)(b)(i)).
  3. Exclusive Jurisdiction Agreements: Where the parties have agreed in writing that the court has exclusive jurisdiction (CPR 6.33(2)(b)(iii)).
  4. Consumer/Employment Contracts: Certain claims relating to consumer or employment contracts where specific conditions are met.
  5. Specific Torts: Where the claim is in tort and damage was sustained, or resulted from an act committed, within the jurisdiction (subject to certain conditions regarding the defendant's domicile).
  6. Enforcement: Claims relating to the enforcement of judgments.

Worked Example 1.1

A company based in England enters into a contract with a supplier based in Italy. The contract states that any disputes will be governed by English law and subject to the exclusive jurisdiction of the English courts. The English company wishes to sue the Italian supplier for breach of contract. Does the English company need permission to serve the claim form in Italy?

Answer: No. Permission is not required because the contract contains a clause giving the English courts exclusive jurisdiction (CPR 6.33(2)(b)(iii)).

Post-Brexit Considerations

Before Brexit, service within EU member states was governed by specific EU regulations (like the Service Regulation), often meaning permission was not required. Post-Brexit (after 31 December 2020), these regulations generally no longer apply to the UK. Service in EU countries now primarily relies on:

  1. The Hague Service Convention 1965: This international treaty provides methods for service between signatory states (which include the UK and all EU member states).
  2. Common Law Rules/CPR Part 6: Where the Hague Convention doesn't apply or isn't used, the CPR Part 6 rules regarding permission and methods of service apply.

This means permission is more likely to be required for service in EU countries than pre-Brexit, unless an exception under CPR 6.33 applies (e.g., an exclusive jurisdiction clause).

Exam Warning

Do not assume pre-Brexit rules for service in the EU still apply. Post-Brexit, the default position often requires court permission unless a specific CPR exception is met. The Hague Service Convention is now a key mechanism.

Methods of Service Outside the Jurisdiction

Once permission is granted (or if it is not required), the claim form must be served using a valid method under CPR Part 6, Section IV. The permitted methods depend on the country where service is to take place.

Service Through Foreign Governments, Judicial Authorities, or British Consular Authorities (CPR 6.42)

For many countries, service must be effected through official channels, often involving:

  • Sending the documents to the Senior Registrar of the Queen's Bench Division (for High Court claims) or a district judge (for County Court claims).
  • The English court authority then transmits the documents to the relevant foreign authority (e.g., a foreign court, central authority under a convention, or British consular authority) for service according to local law.

Service Permitted by the Law of the Foreign Country (CPR 6.40(3)(c))

Service can be effected by any method permitted by the law of the country in which it is to be served. This often requires instruction of local agents or lawyers.

Hague Service Convention

If serving in a country that is a party to the Hague Service Convention, the claimant can use the procedures set out in the Convention. This typically involves sending the documents via the designated 'Central Authority' in each country.

Key Term: Hague Service Convention
An international treaty establishing standardised procedures for serving judicial and extrajudicial documents between signatory states.

Service by an Alternative Method (CPR 6.15 / CPR 6.27)

If traditional methods are impractical, the claimant can apply to the court for an order permitting service by an alternative method or at an alternative place (e.g., via email, social media, or on an agent within the jurisdiction), provided there is a good reason and the method is likely to bring the claim form to the defendant's attention.

Time Limits for Service

As mentioned in the previous article on issuing proceedings, the standard time limit for serving a claim form is four months from the date of issue. However, where the claim form is to be served out of the jurisdiction, this period is extended to six months (CPR 7.5(2)).

Calculating the Period

The six-month period runs from the date the claim form was issued by the court. The claimant must complete the required step for the chosen method of service before midnight on the calendar day six months after the issue date.

Extension of Time

If the claimant cannot effect service within the six-month period despite making reasonable efforts, they can apply to the court under CPR 7.6 for an extension of time. The application should ideally be made before the six-month period expires. An extension will only be granted if there are good reasons.

Deemed Date of Service

The rules for the deemed date of service are more complex when service is outside the jurisdiction and depend heavily on the country and method of service used (CPR 6.37(17) and PD 6B para 6.1). It is essential to ascertain the correct deemed date as it determines the deadline for the defendant to respond.

Worked Example 1.2

A claimant issues a claim form on 10th March. The defendant is based in the USA. The claimant obtains permission to serve out on 1st April. What is the latest date the claimant must complete the step required for service?

Answer: The claimant must complete the relevant step for service (e.g., dispatching the documents to the relevant US authority under the Hague Convention) by midnight on 10th September (six months from the date of issue, 10th March).

Revision Tip

Remember the key distinction: 4 months for service within the jurisdiction, 6 months for service outside. Always calculate from the date the claim form was issued.

Key Point Checklist

This article has covered the following key knowledge points:

  • Serving a claim form outside England and Wales generally requires court permission under CPR Part 6, unless specific exceptions apply (e.g., service in Scotland/NI, exclusive jurisdiction clauses).
  • To grant permission, the court checks for a jurisdictional gateway (PD 6B), a reasonable prospect of success, and that England/Wales is the proper forum.
  • Post-Brexit, service in EU countries often requires permission and typically uses the Hague Service Convention or other methods under CPR Part 6.
  • Methods of service abroad include official channels (foreign governments/courts), methods permitted by local law, the Hague Service Convention, or alternative methods approved by the court.
  • The time limit for serving a claim form out of the jurisdiction is six months from the date of issue. Extensions may be granted if there is good reason.

Key Terms and Concepts

  • Jurisdiction
  • Claim Form
  • Permission to Serve Out
  • Hague Service Convention
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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