Service of claim form in claims brought against partnerships

The law as it applies to claims brought against persons who were in partnership has been considerably simplified. If they were partners and carried on business within the jurisdiction when the cause of action arose, the persons concerned may be sued, unless it is inappropriate to do so, in the name of the partnership which carried on the business. Service of the claim form may be by any of the methods set out in the rules. Personal service is made by leaving the claim form with a partner, or with a person who, at the time of service, has control or management of the partnership business at its principal place of business. A limited liability partnership formed under the Limited Liability Partnerships Act 2000 may be served at the principal office of the partnership or at any place of business of the partnership within the jurisdiction which has a real connection with the claim,^[1] but as the service provisions of the Companies Act 2006 have been extended to limited liability partnerships, service may also be made in accordance with that regime if that is more convenient.

Serving the claim form outside England and Wales without permission

When dealing with the question how to make service of the claim form outside England and Wales, there is a distinction between cases in which the permission of the court is not required, and service may be made without it, and cases in which the permission of the court is required if service is to be regular. The claimant may consider that his claim is one the court has jurisdiction to hear and that permission is not required to serve the claim form outside England: if that is the case, he may serve without permission. The commonest example would be where the Lugano Convention or 2005 Hague Convention on Choice of Court gives the English court jurisdiction; there are also some Parliamentary statutes which allow a claimant to serve out without permission. Rule 6.33 of the Civil Procedure Rules establishes the basis for service of the claim form out of the jurisdiction in those circumstances in which permission to do so is not required. So far as the Lugano Convention and the 2005 Hague Choice of Court Convention, service out without permission is permitted if the English court has jurisdiction over the defendant under either of these Conventions. Rule 6.33 also allows service out without permission if the court has power to determine the claims under some other statutory provision notwithstanding that the person against whom the claim is made is not within the jurisdiction and that the facts giving rise to the claim did not occur within the jurisdiction.

In all other cases, service out of the jurisdiction will require the claimant to obtain the permission of the court before service is made.

Service of claim form out of the jurisdiction: uncertainty over the need for permission

It follows that two régimes apply to cases commenced by service out of the jurisdiction. In one, the permission of the court to serve out of the jurisdiction is not needed, and in the other, permission is required. Unfortunately, the two régimes are expressed by the opening words of CPR rule 6.36 to be mutually exclusive, and this gives rise to a problem.

If the claim form is to be served out of the jurisdiction without permission, the claimant is required to file a notice which identifies the grounds on which he is entitled so to serve the claim form, and a copy of that notice must accompany the claim form so that the defendant knows what is being said.^[2] But CPR rule 6.36, which allows an application to be made for permission to serve out of the jurisdiction, opens with the words ‘in any proceedings to which rule 6.32 or 6.33 does not apply ...’, from which it follows that if the claim falls clearly and unambiguously outside CPR rule 6.32 or 6.33, permission to serve must be applied for.

Unfortunately, cases are not always so clear-cut, and two, in particular, cause difficulty. First, a claim form may contain a number of claims, only some but not others of which would fall within CPR rule 6.32 or 6.33. In such a case, a claimant would appear to have a choice. He may issue separate claim forms, seeking permission to serve the one containing the claims falling outside (say) CPR rule 6.33, and making the statement of entitlement and serving the other as of right; or he can apply under CPR rule 6.36 for permission to serve the single claim form, on the ground that he does not satisfy the opening words of CPR rule 6.33(1). This may be an inconvenience, but it is no more than an irritant.

The second case is rather more difficult. The claimant may believe that his claim falls within CPR rule 6.33; may also know that, if it does not, it will fall within one or more of the paragraphs of the Practice Direction 6B, to which CPR rule 6.36 refers; but above all he may be aware that there is some doubt about it. For example, there may be uncertainty as to whether the claim arises in a civil or commercial matter, or (assuming that it does) whether the defendant is domiciled in the United Kingdom, or in a Lugano State, or neither. There may be doubt whether the choice of court agreement is considered to be exclusive for the purpose of the 2005 Hague Convention, and so forth. All such points may make it uncertain whether a court will consider the claim to be within CPR rule 6.33. Again, there may be proceedings already commenced in another Lugano State in relation to which the claimant intends to challenge jurisdiction and expects to succeed, but the pendency of which prevents his filing the notice which identifies the grounds and meets the conditions upon which his entitlement to serve the claim form out of the jurisdiction without permission depends.

The problem arises from the specific wording which the claimant or his agent must subscribe to: the form requires, with a statement of truth, the person signing it to state that the court has jurisdiction to hear the claim according to the relevant legislative provision, and that no proceedings are pending between the parties in another court. The claimant or his agent may not be able to say that the court does have power to hear the claim: the truth may be that they believe it does, but that is a rather different point. It is unattractive to conclude that, where there is doubt in the mind of a conscientious solicitor, his client may not rely on CPR rule 6.33, and as CPR rule 6.36 applies only to cases in which CPR rule 6.33 does not, an application for permission may be technically irregular." Moreover, in a case in which speed of issue and effectiveness of service may be critical, the delay in seeking permission which may turn out to have been unnecessary is something to avoid.

There is no completely satisfactory answer to the question. One analysis might be that a claimant may rely on CPR rule 6.33, and file the notice stating the grounds of the entitlement to serve, if he has, or believes that he has, a good arguable case that this procedural rule is complied with. But a rule which was developed to deal with uncertainty as to jurisdictional facts does not necessarily extend to the statutory scheme for service of process, and may even contradict the prescribed wording, which does not appear to allow for a claimant to state that there is only a good arguable case that he is entitled to serve out of the jurisdiction without permission.^[3] If this is nevertheless to be the solution, it would be welcome if this were to be confirmed by the rules, and the form of the prescribed statement which is required to be made amended to reflect it.

Even so, all this would achieve would be to lower the hurdle which the claimant is required to clear. If, when the defendant contests the jurisdiction, facts emerge which show that the claimant had not reached the standard of certainty, whatever it is held to be, the claimant will have served out of the jurisdiction when not entitled to do so and without obtaining permission. And it is of no help at all in the case mentioned above, in which the prescribed statement cannot be made because proceedings which, as the claimant would say, should never have been brought, are nevertheless pending in the courts of another Lugano State.

Another, more cumbersome but probably safer, analysis is that the claimant should issue two copies of the one claim form: make the prescribed statement on one of them to enable it to be served under CPR rule 6.33, and apply in accordance with CPR rule 6.36 for permission to serve the other, explaining the background to, and reason for, the procedure which he has adopted, including his reservations about the statement of entitlement he will have made, but also the ways in which (as he sees it) facts may emerge which would mean that he was entitled to serve under CPR rule 6.33 all along. There is an obvious drawback to this: a defendant will be served, without any obvious explanation, with two copies of what is substantially the one claim form. But until there is an authoritative clarification on the dilemma faced by the claimant, who believes on balance that he satisfies CPR rule 6.33 but sees the possibility that he may not, and who needs to be very sure that the service he is effecting will be impregnable to challenge, this may be the least bad way to minimise the risk.

• [1] CPR r. 6.9(2). 2 CPR r. 6.3(3). 3 Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009, SI 2009 No 1804, Reg. 75. 4 See Chapter 21, above. 5 In fact, service in Scotland or Northern Ireland is dealt with by CPR r. 6.32, which is in substantially identical terms, but which is not of major practical significance. 6 CPR r. 6.33(3) is nowhere near as wide as it may at first sight appear. It applies to those cases in which an enactment makes it plain (as distinct from arguable) that it is envisaged that proceedings may be brought against persons even though they are out of the jurisdiction: Re Harrods (Buenos Aires) Ltd (No 2) [1992] Ch 72, 116: Re Banco Nacional de Cuba [2001] 1 WLR 2039. Enactments which do this are relatively few in number; see further above, Chapter 21. 7 Form N510.
• [2] CPR r. 6.34. 2 That is, service in Scotland or Northern Ireland. 3 Applying later to consolidate the two claims. 4 The facts and matters which will be relevant to this are peculiarly within the knowledge of the defendant: the claimant can do no more than guess at what will be later said. For an illustration of the problems facing a party who does not have the right of access to the primary facts, see Canada Trust Co v Stolzenberg (No 2) [2002] 1 AC 1. 5 Problems with the prescribed form of words were identified by the Court of Appeal in Royal & Sun Alliance Insurance Co Pic v MK Digital FZE (Cyprus) Ltd [2006] EWCA Civ 629, [2006] 2 Lloyd’s Rep 110, [109]. It is not apparent that they have been addressed by the wording of Practice Form N510.
• [3] 2 Unless the proposition that there is a good arguable case that the court has jurisdiction under the Lugano Convention, Hague Convention, or 1982 Act is identical in substance with the proposition that the court has jurisdiction under those Conventions or the 1982 Act. 3 It appears that the power to issue a concurrent claim form is no longer provided for by the Civil Procedure Rules (see Pirelli Cables Ltd v United Thai Shipping Corp [2000] 1 Lloyd’s Rep 663), though this may well have been an accident, for the procedural need for a concurrency procedure is manifest. In The Byzantio [2004] EWHC 3339 (Comm), [2005] 1 Lloyd’s Rep 531, the judge simply assumed that the deletion was no impediment to the issue of a concurrent writ. But there appears to be no reason why the variant proposed in the text cannot be adopted, for the point is no more than that the claimant wishes to make doubly sure that service is made once and effectively. 4 It is not certain that there is anything which can be done to assist the claimant who would have had an incontestable claim to serve out under CPR r. 6.33 until the moment when manifestly unfounded proceedings were commenced in the courts of another Lugano State, but the dismissal of which the claimant has not yet been able to procure: after all, Art. 27 of the Lugano Convention does not preclude the institution of proceedings, just their being proceeded with while the jurisdiction of the first court is being established. A practical solution would be for the court to authorise a variant on the statement in the prescribed Notice and for service then to be made (so securing that the English court will count as first seised once the foreign proceedings are disposed of); but it remains to be discovered whether the wording of CPR r. 6.33(2) can so easily be circumvented. The alternative of applying for permission under CPR r. 6.36 seems singularly inappropriate.