PROCEEDINGS COMMENCED BY SERVICE OUT OF THE JURISDICTION

Statutory claims which allow service out to be made without permission

If one takes a step back, it will be recalled that where jurisdiction is to be taken under the Lugano Convention, the claimant may effect service of process on a defendant out of the jurisdiction without the need to seek or obtain the permission of the court, subject to making the requisite declaration of his right to invoke the jurisdiction on which he relies.^[1] We dealt with that in Part B. Three further instances, in which a defendant may be served out of the jurisdiction without any need to obtain permission, must now be mentioned.

First, where the court has jurisdiction over the defendant under the provisions of the 2005 Hague Convention on Choice of Court Agreements, service out may be made without permission, and this will not depend on the defendant’s being, for example, in a Contracting State to that Convention. This rule was made and inserted alongside the provisions which allowed service out without permission where the court had jurisdiction under the Brussels I Regulation, et cetera, because the Convention was concluded by the European Union rather than the United Kingdom. The provision for service out to be effected without the need to obtain permission will remain in place when the statutory basis for the exercise of the jurisdiction under the Convention is or is derived from the Private International Law (Implementation of Agreements) Act 2020. For the sake of completeness, though, where the jurisdiction agreement does not fall within the (relatively restrictive terms of the) 2005 Hague Convention, because it is not what the Convention regards as exclusive, or does not comply with the formality or recording rules of the Convention, for example, service out will depend on obtaining permission, as is explained below.

Second, where the court has jurisdiction in a claim brought by a consumer or by an employee which falls within Section 15A-15E of Civil Jurisdiction and Judgments Act 1982, service out may be made without the need to obtain permission in advance. This is in fact true for all claims which the 1982 Act gives the English court jurisdiction to hear, including those founded on the Lugano Convention. However, where the claimant relies on Sections 15A-15E, having arrived at them via Article 4 of the Lugano Convention or otherwise, it will not be necessary to apply for permission to serve the defendant out of the jurisdiction; it may be done as a statutory right.

Third, in a small number of other cases, a statute will, on its face and on a true construction, allow a claim to be made and service to be made out of the jurisdiction without prior permission, even though the facts giving rise to the claim did not occur within the jurisdiction. In these cases CPR rule 6.33(3) allows the claimant to serve out of the jurisdiction without the need to obtain the permission of the court.^[2] Where this happens, although the permission of the court will not have been obtained, the claimant saying that it was not needed, the defendant may seek to dispute the jurisdiction on the basis that the statute was not one which allowed for this exceptional form of service. In effect, his contention will be that the statute was not one of the special ones, and that prior permission had been required and should not now be given with retrospective effect. All this comes to pass because the identification of a statute as one of this special kind is not as precise a science as it should be.

The number of statutes to which this principle applies is not large. And in practice, rather than making service without prior permission, only to be faced with argument by a defendant, disputing the jurisdiction, that the statute did not, on a true construction, allow for such service to be made, a claimant may find it expedient to apply for permission under CPR rule 6.36 and sub-paragraph 20(a) of Paragraph 3.1 of Practice Direction 6B, just in case. The rules governing service out of the jurisdiction with the permission of the court are discussed in the next section, and in the case of liability arising under a statute, there may be little to be gained by serving out of the jurisdiction without the permission of the court, when permission is so easy to obtain.

• [1] CPR rr 6.33(1) and 6.33(2). 2 CPR 6.33(2B). For further examination of the 2005 Hague Convention, see Chapter 25, below. 3 Inserted by Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, Reg. 26. 4 CPR r. 6.33(1).
• [2] The claimant must file a notice stating the grounds on which he was entitled to serve out of the jurisdiction without permission, and this notice must be served together with the claim form: CPR r. 6.34( 1). 2 It applies to certain legislation implementing international conventions in circumstances in which the convention gives jurisdiction to the courts of the United Kingdom. It also applies to Protection of Trading Interests Act 1980, Section 6 (clawback actions). It has not been held to apply to very much else. It does not apply to a claim for payment under the Commercial Agents (Council Directive) Regulations 1992, SI 1993 No 3053, as nothing on the face of the Regulations makes such provision for jurisdiction: Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Ltd [2014] EWHC 2908 (Ch), [2015] 1 Lloyd’s Rep 1. 3 The power is wholly statutory; it is not inherent. 4 Abela v Bum/aram [2013] UKSC 44, [2013] 1 WLR 2043. 5 But, of course, if he had appointed an agent within the jurisdiction who had authority to accept service of process, there would be no problem, and in particular, no need to (obtain permission to) serve out of the jurisdiction.