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Service out of the jurisdiction post Brexit

March 08, 2021

The Civil Procedure Rules (CPR) are being amended with effect from 6 April, 2021 to remove the requirement to seek permission to serve a claim on a defendant out of the jurisdiction whenever there is an English choice of jurisdiction.

Before Brexit, English court proceedings were able to be served on defendants in other EU Member States in accordance with the Service Regulation (Regulation EC No. 1393/2007), which was relatively quick and cost effective. It permitted a variety of methods of service including service between designated state central bodies (Article 4); postal service where proceedings are sent by the EU Member State (Article 14); and direct service where permitted under the law of the EU Member State (Article 15), although several EU Member States did not permit direct service. Following Brexit, service in other EU Member States is still possible via the Hague Convention on Service Abroad, although it is likely to be slower.

CPR 6.33 permitted service outside the jurisdiction without permission where there was a choice of English jurisdiction under the Brussels Regulation (Regulation 1215/2012). Following Brexit, this is no longer applicable and there are only limited remaining circumstances where a claimant will not require permission of the court to serve a claim form on a defendant outside of the jurisdiction. These include where the English court has jurisdiction under the Lugano Convention or the 2005 Hague Convention.

The Civil Procedure (Amendment) Rules 2021 were laid before UK Parliament on 3 February 2021. It announces that (2B) of rule 6.33 has been rewritten to include:

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

  1. 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
  2. a contract contains a term to the effect that the court shall have jurisdiction to determine that claim.”.

The new wide-ranging provision means permission of the court will no longer be required where there is a contractual choice of English courts. It was recommended by the Lord Chancellor's Advisory Committee on Private International Law on the basis that it would give “significant reassurance to the legal profession and wider business community and instil confidence in businesses to continue to choose choice of court agreements in favour of the courts of England & Wales”, by eliminating a preliminary step which adds cost and delay. It will remain possible for defendants to challenge the court’s jurisdiction at a later stage, for instance by arguing that the English courts are not the proper forum for the claim.

This is a significant change. The new rule is not merely a replacement for the previous Brussels Regulation exception – it is much wider. This suggests a robust, commercial approach by the courts in issues of cross-border jurisdiction.

The amendments will come into force on 6 April 2021.