Post-Brexit provisions for service out of jurisdiction

Service out of jurisdiction after Brexit

Where a defendant is outside the United Kingdom, the claim form and other documents in the proceedings will have to be served on the defendant overseas. Due to the United Kingdom’s membership of the European Union, particular rules had applied if the defendant was in a European Union country, or Denmark, Iceland, Norway or Switzerland. After Brexit, the situation is different, and this article describes the provisions for service out of jurisdiction that now apply under the Civil Procedure Rules (‘CPR’).

Pre-Brexit position

Prior to Brexit, a claimant in a civil or commercial matter did not require the English court’s permission to serve the claim on a defendant located in an EU member state or in Denmark, Iceland, Norway or Switzerland (CPR Rule 6.33). The position for the latter four countries relates to the Lugano Convention (‘Convention’), which concerns jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. With regards to defendants in the EU, the position was covered by the Civil Jurisdiction and Judgments Act and the EU’s Judgments Regulation (Regulation (EU) No. 1215/2012).

The claim, as indicated, had to concern civil and commercial matters, such as contract and tort claims, and could not be pending in a court in any other part of the United Kingdom, an EU member state or in a Convention territory. If such a claim was already pending, the English court would stay or decline the exercise of its jurisdiction to hear and decide it.

From 1 January 2021 however, the above position no longer applies and claimants in such cases, having claims issued after that date, will have to seek the court’s permission to serve documents in their proceedings on defendants in those countries.

Post-Brexit position

Service out where no permission required.

Brexit had the effect of markedly reducing the cases where permission is not required to serve documents out of jurisdiction. One remaining case where no permission is required is when the defendant is in a country where the Hague Convention on Choice of Court Agreements of 2005 (‘the 2005 Hague Convention’) is in force (CPR Rule 6.33(2B)). The 2005 Hague Convention concerns agreements between parties that courts in a particular country have exclusive jurisdiction to determine their dispute. At present the 2005 Hague Convention is only in force in five countries: Denmark, Mexico, Montenegro, Singapore, and the UK. So only agreements conferring jurisdiction to courts in these countries would apply.

There are also exceptions from such permission for claims under sections 15A to 15E of the Civil Jurisdiction and Judgments Act 1982 (‘CJJA’) as amended by the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, in particular with regards to consumer contract and employment contract cases.

• A consumer domiciled in the UK, can bring a claim against the other party to the consumer contract in the courts where the consumer is domiciled (for instance, the English court), regardless of the other party’s domicile (CJJA section 15(B)(2)). If the other party is domiciled overseas, no permission is required to serve out of the jurisdiction (CPR Rule 6.33(2)(b)(ii)). There is an exception however, where the parties to the consumer contract agree otherwise once the dispute has arisen, or where they had agreed to allow the consumer to bring proceedings in some other court (CJJA section 15(B)(6)).

• An employee carrying out work in the UK can bring proceedings against the employer in the courts of that part of the UK (for instance, the English court), regardless of where the employer is domiciled (CJJA section 15(C)(2)), without requiring permission for service out of the jurisdiction (CPR Rule 6.33(2)(b)(iii)). A similar exception applies as with the case consumer contracts in that the employer and employee can agree otherwise once the dispute has arisen or where they had agreed to allow the employee to bring proceedings in some other court (CJJA section 15(C)(6)).

Lastly, another case where permission is not required is where an enactment gives the English court power to decide the claim notwithstanding the defendant is, or the facts on which the claim is based occurred, outside the jurisdiction (CPR Rule 6.33(3)). This would be a rare case and this rule is meant to cover the situation of an enactment that does in fact expressly contemplate such proceedings.

Service out where permission required

Aside from the remaining category of cases just described where permission is not needed, after Brexit, the need to apply for permission to serve a claim form overseas applies to all other cases.

The application for permission to serve a claim form overseas has to be made to the relevant court depending on the nature and amount of the claim. In making the application, the jurisdiction of the court to hear and decide the claim must be established. Such jurisdiction may have arisen for instance, because the claim form had been served on the defendant while it was temporarily in the United Kingdom, even for a brief period.

Otherwise, the claimant must satisfy the court that it can assume jurisdiction on the grounds set out in CPR Practice Direction 6B paragraph 3.1. For example, the claimant must show that there is a real difference between it and the defendant, which it is reasonable for the court to try, or that it is seeking a remedy within the jurisdiction.

In addition, the claimant must also show that its claim has a reasonable prospect of success (CPR Rule 6.37(1)(b)), and that the English court is the proper forum for hearing the claim (CPR Rule 6.37(3)).

In granting permission for service out of the jurisdiction, the court will set out the time within which the defendant has to take certain steps, like filing an acknowledgment of service or a defence, or any other document. The court may also issue directions concerning the method of service or give permission for the service of other documents in the proceedings to be served out of the jurisdiction (CPR Rule 6.37(5)).

Method of service out

Once permission to serve out of the jurisdiction has been obtained, the service would have to be carried out in accordance with the procedures under the law of the country concerned (CPR Rule 6.40(3)(c)). Service can also be carried out through the government and judicial authorities of both countries (CPR Rule 6.42). The claim form and other documentation is provided to the authorities of the transmitting country who then submit that to the authorities in the receiving country who serve the document and provide a certificate of service.

Conclusion

Brexit altered the legal relationships between the UK and the EU, affecting as described the service of documents in English legal proceedings on defendants in the EU and other Western European countries. The UK has applied to accede to the Lugano Convention, which as discussed provides a basis for not requiring permission for serve out of jurisdiction. The UK’s request to accede to the Convention has to be approved by all EU-member states by April 2021. As yet that approval is not certain. If the UK’s request is approved, it will take a further three months for the Convention to be in force for the UK. Should the Convention come into force, the rules for service out of jurisdiction will likely shift again to most probably mirror the pre-Brexit position. As yet, however there is uncertainty if that will happen and parties contemplating bringing a claim against a defendant located outside the UK should be mindful of the rules described above.