What do you do if the Defendant is located abroad?

Jurisdiction Series Part 1: Service of a claim outside jurisdiction - Practice Direction 6B

When litigation is contemplated, but one or more defendants are located outside of England and Wales, the claimant must consider service outside of the jurisdiction. For clarity, service is the act of bringing the documents to the attention of the other party, and service outside the jurisdiction means that the documents are brought to the attention of the other party in another country.

The procedure for doing this is governed by Part 6 and Practice Direction 6B (PD6B) of the Civil Procedure Rules, and it is not straightforward. The way in which documents are served outside the jurisdiction can vary from country to country.

Is permission of the court required?

This depends on multiple factors and remains highly technical. Pursuant to rule 6.32 and rule 6.33 of the Civil Procedure Rules, there are exceptions and circumstances where permission of the court to serve a claim on parties, based within Scotland/Ireland and outside the UK, is not required.   

This blog will focus on the steps to be taken when permission of the court is required.

How is permission granted?

The first step is for the claimant to make an application to the court for permission to serve the claim outside of the jurisdiction of England and Wales. The court will only give permission to serve outside of the jurisdiction if it is satisfied that England and Wales is the proper place to bring the claim.

In making its decision about whether permission should be granted, the court will consider several factors:

• Is there a serious issue to be tried – the court needs to be satisfied that there is a substantial question of law or fact that needs to be determined by the court at trial. The test used by the court when determining whether there is a serious issue to be tried is the reasonable or real prospect of success test.
• Good arguable case – this question continues to cause debate and remains highly technical. Here, the court will need to be satisfied that there is a good arguable case that one of the jurisdictional gateways set out within PD6B applies. In making that determination, it will consider the General Grounds, such as is the claim against a person domiciled within the jurisdiction, or a claim made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction, etc. [ see PD6B 3.1]

There are a number of other jurisdictional gateways which may amount to a good arguable case in paragraph 3.1 of PD6B, including and not limited to when: 

1. A claim is made for an interim remedy under section 25(1) of the Civil Jurisdiction and Judgments Act 1982;
2. Claims in relation to contracts where (i) the contract was made within the jurisdiction; or (ii) was made by or through an agent trading or residing within the jurisdiction; or (iii) is governed by the law of England and Wales.
3. Claims in tort where the damage was sustained or will be sustained within the jurisdiction or the claim is governed by the law of England and Wales
4. In enforcement, where a claim is made to enforce a judgment or arbitral award.

See PB6B for the full list of jurisdictional gateways.

• Which is the proper forum? In addition to the two key requirements above, the claimant will need to prove to the court that England and Wales is the most appropriate forum to hear the dispute.
• Full and frank disclosure – in establishing the above criteria, the claimant has an obligation to provide full and frank disclosure to the court.

Which documents should be served?

Once permission has been granted, to effect proper service, a claim form and particulars of claim should be served. It may also be necessary to serve other documents, and in some jurisdictions, translated documents may be required. A claim form also includes a ‘response pack,’ and the response pack is also required to be served.

It is imperative to note that where a claim form is served out of the jurisdiction, there is a strict time limit. The claim form should be served within 6 months of issue to be compliant with 7.5(2) of the CPR.

It may be possible to apply to the court for an extension of time to serve (CPR 7.6).

Practical considerations

Once permission is obtained, you must consider how to serve the documents. It may be possible to post the documents in some instances, whilst in others may require personal service - in which case we will commission a local solicitor or process server to serve the documents on the defendant personally in the country and provide a certificate of service.

We will always check that the proposed method of service is compliant with the Hague Convention (an international treaty), where, among other things, it states how service should be executed.

Pitfalls to avoid

It is imperative that service is executed correctly in both domestic and cross-border litigation. In cross-border litigation, there are more opportunities to fail to serve the claim form and particulars of claim correctly. It is therefore important to seek legal advice in order that we can ensure service is affected correctly and within the correct timescale.

Can the defendant ignore the claim?

It would be unwise for the defendant to ignore the claim. If service is affected correctly, it may allow the claimant to obtain judgment in default and effectively ‘win’ the claim.

There are different timescales for the defendant to respond to the claim depending on which country the claim is being served in.