Service Out of Jurisdiction Post-Brexit

Current Situation

The UK is not a party, yet, to the Lugano Convention and the EU regulations concerning service are no longer applicable in the UK. As a result, and under the current CPR, service out of the jurisdiction without permission of the court can only be done if court has power to hear the claim under the Hague Convention on Choice of Court Agreements 2005, to which the UK is now a member in its own name, (CPR r.6.33(2B)).

However, the Hague Convention only covers agreement where there is an exclusive jurisdiction clause and so for the English courts to have power to hear the claim there must be an exclusive jurisdiction clause in place. It also seems the Hague Convention does not apply to asymmetric jurisdictional agreements.

As a result, it seems permission of the court is now needed where the power to hear the claim does not fall under the Hague Convention of 2005.

Upcoming Amendment

This will change on April 6th when the The Civil Procedure (Amendment) Rules 2021 (SI 117/2021) will come into force and will amended CPR r.6.33 (2B) to include the last paragraph:

“(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form—

(a)the court has power to determine that claim under the 2005 Hague Convention and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention; or

(b)a contract contains a term to the effect that the court shall have jurisdiction to determine that claim.”.

As a result, it seems service can be made out of jurisdiction without the permission of the court as long as there is a term in the contract giving jurisdiction to the English courts, and regardless of whether the defendant is within or outside the EU.

My understanding is also that if the UK re-joins the Lugano Convention (EU has not approved yet) then the pre-31.12.2021 rules will apply for jurisdiction and service within the EU, but that the new amendment above will apply for service outside of the EU, and will dispense with the earlier requirements of having to apply for court’s permission and show good arguable case etc.

How to serve

The EU Service Regulation ceased to apply to the UK on Brexit and as the UK is a contracting party to the Hague Service Convention this will continue to apply between the UK and EU.

According to an explanation on Westlaw “The Hague Service Convention provides for one formal channel of transmission (via the Central Authority of the destination State), and several alternative channels of transmission”.  I have attached a quick guide from Westlaw which list up a few countries and the best way of serving in those countries.

Also, the article listed below from the Law Society lists up the 3 methods of service under the Hague Service Convention: via the designated Central Authority, through competent persons, and by mail. So, while service via a country’s designed Central Authority is the most formal method, it is still possible to serve directly by post as long as the state of destination has not objected to this. It therefore seems important to check with the specific country before serving claim or documents.

Relevant Conventions and Legislation

Lugano Convention 2007 (EU+Iceland+Norway+Switzerland)

o   Materially the same as the 2001 Brussel Regulation

o   Incorporated into UK law by the Civil Jurisdiction and Judgment Regulations 2009, but this ceased to be the case on 31.12.20

Recast Brussel Regulation repealed the 2001 Brussels Regulation

o   Ceased to apply to the UK on 31.12.20

The Hague Convention on Choice of Courts Agreements 2005 (EU+Singapore+Montenegro+Mexico)

o   From 01.01.21 the UK is a contracting state and this will continue to apply in the UK

o   Gives effect to exclusive choice of court agreements and essentially sets out that:

§  Chosen court is obliged to hear the case

§  Any other court must refuse to hear the case

§  Judgement of chosen court will be recognised and enforced in other states

The Hague Service Convention 1965

o   UK is a contracting state in its own right and this will continue to apply in UK

Civil Procedure Rules:

o   Rule 6.33 (2B)

o   The Civil Procedure (Amendment) Rules 2021 (SI 117/2021)

o   Practice Direction 6B

Article from Law Society: https://www.lawsociety.org.uk/topics/brexit/end-of-transition-period-guidance-service-of-documents