In this article, Christopher Fleming looks at the new rules on service outside the jurisdiction following the end of the Implementation Period. A good understanding of the new service rules is absolutely key for all cross-border practitioners.
Claims issued after 31 December 2020
As of 11 pm on 31 December 2020, Brussels I (Recast) and the Lugano Convention have in effect been revoked in the UK (see the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019).
However, it is important first to note that permission to serve abroad in claims issued after 31 December 2020 may not be required in claims relating to consumer contracts and employment contracts.
This is because of new provisions specifically introduced into the Civil Jurisdiction and Judgments Act 1982 (new ss. 15B–E) and reflected in separate amendments to CPR Part 6: see CPR r. 6.33 as amended by the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, reg. 4.
Those serving other claims issued after 31 December 2020 outside the UK will generally be required to obtain the court’s permission under CPR 6.36 (unless there is an exclusive jurisdiction agreement within the 2005 Hague Convention).
The general principles applied by the courts when determining an application to serve outside the jurisdiction are as follows (see Lord Collins in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7):
- Is there a good arguable case that the claim falls within one or more of the heads of jurisdiction as set out in para 3.1 of PD 6B?
- Is there a serious issue to be tried on the merits of the claim?
- In all the circumstances, England is clearly or distinctly the appropriate forum for the trial of the dispute (forum conveniens).
The jurisdictional gateway for claims in tort set out in para 3.1(9) of PD 6B provides that:
A claim is made in tort where—
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.
The pending ruling of the Supreme Court in Brownlie No. 2 means that there is still a good deal of uncertainty surrounding whether the ‘tort gateway’ under para.3.1 of PD 6B can apply when an accident causing injury has occurred abroad but consequential damage is sustained in the UK.
We previously blogged about the Court of Appeal’s decision here, and about the Supreme Court’s important obiter comments on the tort gateway in the first round of the litigation here.
The jurisdictional gateway for claims in contract contained in para 3.1(6) PD 6B provides that:
A claim is made in respect of a contract where the contract—
(a) was made within the jurisdiction;
(b) was made by or through an agent trading or residing within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.
Keen followers of the Civil Procedure Rule Committee may have noted that at a meeting in October 2020 the Committee agreed to amend the rules so as to allow service without permission where an applicant is seeking to rely on an England and Wales Choice of Court Agreement. But this amendment has not yet been made.
Claims issued by 31 December 2020
Permission will not be required to serve claims brought under Brussels I (Recast) and issued before 31 December 2020.
Specific provision for this has been made by legislation: see the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, reg. 18(3A); as amended by the Civil, Criminal and Family Justice (Amendment) (EU Exit) Regulations 2020, reg. 9(3).
There is an interesting question about what happens to claims where the documents were delivered to the court office by 31 December 2020 but not issued until after that date.
Given the wording of the legislation above (which specifically refers to the claim being “issued”), is this even a service question at all, or is it really a substantive jurisdiction question?
For the time being, we are taking the easy route of flagging this without resolving it.
Whatever the position for Brussels I (Recast) claims, this transitional provision allowing service without permission in claims issued by 31 December 2020 appears not to apply to claims brought under the Lugano Convention.
It refers only to the previous version of CPR 6.33(2) (which applied to Brussels I (Recast) claims) and does not refer to CPR 6.33(1) (which applied to Lugano Convention claims).
The new commentary to the White Book will also point out this lacuna (according to a supplement which has been published).
Therefore, if a claim involving an accident in Iceland, Norway or Switzerland has been issued but not served by 31 December 2020, an application may have to be made for permission for service outside the jurisdiction.
The UK has applied to accede to the Lugano Convention, a request which has been approved by every party to the Convention except the EU. But, even if the UK is invited to join, it will still take three months before it can become a party and before any changes to the service rules are effected.
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