Consequence of service effected within the jurisdiction
Where jurisdiction is asserted under the rules of the common law, a significant question may be whether service of process was made in accordance with the how-and-when-and-where-and-on-whom rules which govern such service. Even if it has not been, it will still be service, and it will, unless and until set aside by the court, give the court jurisdiction over the claim. Service, in this context, does not mean faultless service.
If service has taken place in apparent accordance with these procedural rules, the jurisdiction of the court may still be disputed on the ground that there was no lawful basis for service to have been made. However, unless the defendant is able to say that the Lugano Convention, or some other statute, protected him from the jurisdiction of the English court in respect of the claim, and that the claimant therefore had no right to serve him, or unless he can say that he is personally immune from the jurisdiction of the court, there is little scope for such arguments to be advanced.
If an application to dispute the jurisdiction succeeds, whether on the ground that service was defective and will not be cured, or on the ground that the legal basis for service was absent, the court will declare that it has no jurisdiction, and service will be set aside. This is dealt with in Chapter 27, in the context of challenges to the jurisdiction of the court.
However, a defendant who is not able to obtain an order which sets aside the service of process on him may still apply for a stay of the proceedings. If this application succeeds, the claim form will remain served and court will remain seised of the case,[1] but the court will suspend the proceedings, usually sine die, leaving the claimant who wants a judgment against the defendant to bring proceedings elsewhere. The court may lift the stay at a later date and allow the case to proceed; alternatively, it may resume the proceedings after judgment has been given in the foreign court. But in most cases the stay of proceedings is never lifted and the case does not proceed in England. This important procedure is examined in Chapters 22 and 23.
The power to grant a stay of proceedings is part of the court’s inherent power to control its own procedure. As the jurisdiction of the High Court based on service within the jurisdiction is an inherent jurisdiction, neither created by nor dependent on any statute, the inherent power to control the exercise of that jurisdiction is a natural adjunct to it.
Service out of the jurisdiction with permission
If service has to be made out of the jurisdiction, and the claim is not one of the few in which a statute provides that service may be made out of the jurisdiction without the need to obtain permission in advance, the claimant must obtain an order giving him permission to effect service, and he must then serve in the manner prescribed for such a case.[2] If an order is made granting permission, it is the service made pursuant to the order which gives the court jurisdiction over the defendant in respect of the claim set out in the claim form.
The defendant may, however, challenge the order granting permission to serve, and therefore the service made pursuant to it, on either or both of two broad grounds. First, he may contend that the court had, on the facts of the case, no proper basis in law for granting the claimant permission to serve process out of the jurisdiction. If this argument succeeds, the court will declare that it has no jurisdiction, will set aside the order for permission to serve out, and will set aside service of the claim form. Second, he may argue that, even though the court had a basis in law to grant permission to serve out, it should have exercised its discretion against granting permission, and that the order should, in all the circumstances, not have been made. If this argument succeeds, the outcome will be precisely the same: the court will declare that it has no jurisdiction, and will set aside the order granting permission, together with service of the claim form. And the defendant-applicant will frequently advance both arguments in support of his application, as there is no inconsistency between them.
- [1] The Alexandras T [2013] UKSC 70, [2014] 1 Lloyd’s Rep 225. 2 Not require, as the court generally has no power to order proceedings to be brought, whether in a foreign jurisdiction or elsewhere; it has no power to ‘transfer’ proceedings to a foreign court. 3 Senior Courts Act 1981, Section 49(3). 4 Senior Courts Act 1981, Section 19. 5 The significance of this is plain when considering the inherent power to stay proceedings founded on a jurisdiction conferred and defined by statute or by international instrument. 6 Though always remembering that where the Lugano Convention gives the court jurisdiction, service out may be made without the need to obtain permission. It is outside the context of the Convention that this is rare. 7 In cases in which service may be made out of England without the need to obtain permission, the Civil Procedure Rules draw a further distinction between service in Scotland and Northern Ireland (CPR r. 6.32), and service out of the United Kingdom (CPR r. 6.33). For present purposes, the two cases may be treated alike. 8 In cases in which the Lugano Convention gives the court direct jurisdiction, service out is permitted as of right: CPR r. 6.33(1), (2). Other statutes may allow service to be made out of the jurisdiction
- [2] If he does not manage to serve, however, because the defendant manages to evade (or perhaps even only avoid) service, it will be open to the court to make an order deeming such steps as have been made to be sufficient: Abela v Baaradani [2013] UK.SC 44, [2013] 1 WLR 2043: see also Maugham v Wilmot (No 2) [2017] EWCA Civ 1668, [2018] 1 WLR 2356. 2 This will be referred to below as the ‘gateway to jurisdiction’ issue. 3 This will be referred to below as the ‘discretion’ issue. 4 Paragraph 21.11, below. 5 If according to these rules the court has no jurisdiction, it is not open to the claimant to contend that the defendant is estopped from taking the point: J & F Stone v Levitt [1947] AC 209; R Griggs Group Ltd v. Evans [2004] EWHC 1088 (Ch), [2005] Ch 153, [20].
