Service out where prior permission is required

If it is not possible to serve the defendant within the jurisdiction, and the claim is not made under a statute which permits service out of the jurisdiction without the need for permission, it is necessary to obtain permission to serve process on the defendant out of the jurisdiction. This involves showing that the court has been given authority to grant permission, and if it has, that it should exercise its discretion in favour of granting permission.

Although doubt has been expressed about the explanation or its modern utility, it was always understood that the summoning of a defendant to court is or involves an assertion of sovereign power. If the defendant is not within the territorial jurisdiction of the court, it is not something which the claimant has a right to do or demand, not even if the defendant had agreed in advance to submit to the jurisdiction of the English courts if summoned. For this reason, until relatively recently, what was actually served on a defendant out of the jurisdiction was not the writ but notice of the writ. This delicate formality is no longer observed, but the fact that it was demonstrates the possible sensitivity of the situation. After all, there are some countries in Europe in which it is a serious criminal offence to serve process issued by a foreign court unless this is done through official channels.^[1]

It was also the reason for describing the assertion of jurisdiction in these cases as ‘exorbitant’. As recently as 2012 the Supreme Court was able to observe that ‘it has frequently been said that the jurisdiction exercised under what used to be RSC Ord. 11, rule 1 (and is now CPR Practice Direction 6B, para. 3.1) is an exorbitant one, in that it was a wider jurisdiction than was recognised in English law as being possessed by courts of foreign countries in the absence of a treaty providing for recognition: see The Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA,' per Lord Diplock; Amin Rasheed Shipping Corpn v Kuwait Insurance Co f per Lord Diplock; Spiliada Maritime Corp v Cansulex Ltd, per Lord Goff of Chieveley’. In truth, the description of this jurisdiction as ‘exorbitant’ went much further back than its repeated reaffirmation in those more recent decisions.

Yet, when the Court of Appeal followed what it took to be the approach settled at the highest level, and held that the English court had no jurisdiction in circumstances in which a claimant had failed to effect the service out of the jurisdiction which he had been given permission to make, on the ground that if it did otherwise it would make an exorbitant jurisdiction even more so, it was criticised in surprisingly sharp terms by the Supreme Court. The result of the judgment in Abela v Baadarani' is that use of the term ‘exorbitant’ will generate only heat but no light at all. Rightly or wrongly, the discussion of the law in the paragraphs which follow will seek to avoid use of this incendiary but unilluminating adjective: the law is what the law is, and adjectives are a distraction. It is sufficient to say that the court will not grant permission to serve out unless England is the proper place to bring the claim - notice, the proper place - and that if it is, arguing about use of the ‘e’ word serves no sensible purpose.

Jurisdiction founded by service out: position of the defendant

A brief summary of the position in which the defendant may find himself if service has been made on him out of the jurisdiction is as follows.

If the claimant serves out without having obtained the permission which the law required him to obtain, the service will, no doubt, be irregular, but it will not be a nullity: it is always alarming to be informed by a defendant that he realised that process had been served without permission so he ignored it, or that he did not acknowledge service because this would have breathed validity into the service which it did not have. The defendant may, but also should, apply under CPR Part 11 to have service set aside because service has been effected; whether service should have been made does not affect the fact that it was made, and if it was made the defendant needs to respond to it.

In the more usual case, in which the defendant has been served with the permission of the court, he may, if so advised, dispute the jurisdiction of the court. This is done by application made under CPR Part 11. The application will be for an order declaring that the court has no jurisdiction, and setting aside the grant of permission to serve process, and setting aside service, and for such other relief as may be appropriate.^[2] If the defendant indicates that he is going to dispute the jurisdiction, but then does nothing to make the necessary application, he risks being taken to have abandoned or withdrawn his challenge and to have accepted the jurisdiction of the court. In other words, it is not enough to object; the objection must be prosecuted. If the defendant simply enters an appearance, he will be taken to have submitted to the court and to have waived any objection to service which he might have been entitled to make. If the defendant simply ignores the service, the claimant may apply for judgment in default.’

• [1] Swiss Penal Code, Art. 271: ‘Whoever, without being authorised, performs acts for a foreign state on Swiss territory that are reserved to an authority or official, or performs such acts for a foreign party or another foreign organisation, or aids and abets such acts, shall be punished with imprisonment for up to three years, or a monetary penalty, in serious cases with imprisonment for not less than a year.’ This is the Swiss view of the service of foreign process outside the framework of international treaties to which Switzerland is party. Anyone who thinks that the service of English process overseas has nothing to do with conceptions of sovereignty should try making personal service of English process on a Swiss private bank in Zurich and see what happens next. It would be a good idea to have packed a suitcase. 2 Rubin v Eurofinance SA [2012] UKSC 46, [2013] 1 AC 236, [126] (Lord Collins). 3 [1979] AC 210, 254. 4 [1984] AC 50, 65. 5 [1987] AC 460,481. 6 [2013] UKSC 44, [2013] 1 WLR 2043. The judgment of the Court of Appeal is at [2011] EWCA Civ 1571. 7 See, in this spirit, [2013] LMCLQ 415.
• [2] For fuller analysis of the procedure, see Chapter 27, below. 2 Maple Leaf Macro Volatility Master Fund v Rouvray [2009] EWHC 257 (Comm), [2009] 1 Lloyd’s Rep 475. 3 CPR Pt 12. 4 At this stage the court will have seen only the claim form and the written evidence in support of the application for permission. Unless the application is plainly bad, or plainly fails to comply with the rules governing it (see in particular CPR r. 6.37), or the written evidence can be regarded as incredible, permission will be granted, for there is little basis for doing otherwise. See Attack Cement Co Ltd v Romanian Bank for Foreign Trade [1989] 1 WLR 1147. 5 The question is whether it was proper to grant permission on the date upon which it was granted, not (in the light of changed circumstances) whether it would be right to grant it as of today: ISC Technologies v Guerin [1992] 2 Lloyd’s Rep 430; Mohammed v Bank of Kuwait and the Middle East KSC [1996] 1 WLR 1483; Sharab v Al-Saud [2009] EWCA Civ 353, [2009] 2 Lloyd's Rep 160; Vital Bahrein EC v Nasdec General Trading LLC [2014] EWHC 984 (Comm); Erste Group Bank AG v JCS' VMZ Red October' [2015] EWCA Civ 379, [44]; Satfinance Investment Ltd v Athena Art Finance Corp [2020] EWHC 3527 (Ch). The decision of the Singapore Court of Appeal to the contrary, in Man Diesel & Turbo SE v IM Skaugen SE [2019] SGCA 80, [50], followed in Grains & Industrial Products Trading Pte Ltd v State Bank of India [2019] SGHC 292, is not consistent with English law, and is not well founded on principle: to describe the process as ‘dynamic’ does not advance the argument.