The 149th Practice Direction Update will see some significant changes being made to the CPR 6BPD service gateways with effect from 1 October 2022. The key new provisions (and what they mean in practical terms) are outlined in this blog post.
The first change is to CPR 6BPD 3.1(1). This currently says: “A claim is made for a remedy against a person domiciled within the jurisdiction.”
The update adds to these words at the end: “within the meaning of sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982.” Sections 41 and 42 set out the English law test for the domicile of individuals and companies, so this is simply making explicit what was implicit.
The second change is a new CPR 6BPD 3.1(1A): “A claim is made against a person in respect of a dispute arising out of the operations of a branch, agency or other establishment of that person within the jurisdiction, but only if proceedings cannot be served on the branch, agency or establishment.”
The wording (“branch, agency or other establishment”) mirrors article 7(5) of Brussels I (Recast), which suggests that the authorities concerning that provision may have some relevance. Presumably the new gateway would cover a situation where a UK-based branch or agency has shut down and therefore cannot be directly served.
The third change is to CPR 6BPD 3.1(4A). This currently says “A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.”
This is a slightly opaque but potentially important provision. One of the main effects is to allow a claimant who passes through the contract gateway (6) to also bring a claim in tort which arises out of the same or closely connected facts.
The new wording is: “A claim is made against the defendant which—(a) was served on the defendant within the jurisdiction without the need for the defendant’s agreement to accept such service; (b) falls within CPR rule 6.33; or (c) falls within one or more of paragraphs (1A), (2), (6) to (16A) or (19) to (22A), and a further claim is made against the same defendant which arises out of the same or closely connected facts.”
The expanded gateway therefore covers service of further claims where: (a) a related claim has already been served on a defendant while they were in England; (b) a related claim is served abroad without permission (e.g. claims relating to consumer contracts and employment contracts or claims involving jurisdictional clauses); or (c) a related claim passes through the contract gateway and the claimant wants to advance a further claim in tort.
The fourth change is the expansion of the contract gateway at CPR 6BPD 3.1(6). This includes not only contracts “made within the jurisdiction” (as it did before) but now also contracts “concluded by the acceptance of an offer, which offer has been received within the jurisdiction.”
The fifth key change is to the tort gateway at CPR 6BPD 3.1(9). Significantly, this adds an entirely new situation in which the gateway will be satisfied, which is: “the claim is governed by the law of England and Wales”.
So, this may cover a situation involving an accident abroad involving two people with a common domicile in England and Wales (Rome II, article 4(2)). Or perhaps even a situation where, despite occurring abroad, the tort is manifestly more closely connected with England and Wales (Rome II, article 4(3)).
And the last key change is the addition of a new CPR 6BPD 3.1(16A), which allows for service out in claims for declarations of non-liability which would otherwise be covered by one of the gateways (including the tort gateway and most of the contract gateway).