Basic position
An English claimant wishing to serve proceedings relating to a civil or commercial dispute on a defendant who is domiciled in the European Union does not need the permission of the English courts to serve his/her claim form on the defendant. The procedure and requirements for service are set out in Part 6 of the English Civil Procedure Rules ("CPR"). The claim form must contain a statement of the grounds on which the claimant is entitled to serve it out of the jurisdiction and it is also expressly required that:
(1) there are no proceedings between the parties concerning the same claim pending in the courts of any other EU country; and
(2) either (a) either the defendant is domiciled in the UK or another country of the EU or (b) the English court has jurisdiction (by virtue of Article 22 or Article 23 of EC Council Regulation 44/2001).
The method of service used by the claimant must be by a method, inter alia permitted by the law of the country in which it is to be served, or by EC Council Regulation 1348/2000 (which provides for service through officially designated agencies, consular or diplomatic channels, by post and direct service.).
We set out below recent caselaw developments regarding service out of the jurisdiction within the EU and proposed changes to Part 6 of the CPR.
Failure to comply with rules regarding service
Prior to the introduction of the CPR in April 1999, the courts tended to take a permissive approach towards procedural errors, as exemplified in the Court of Appeal decision in The Goldean Mariner [1990] 2 Lloyd's Rep 215, a case on RSC O.2 r.1, where it was held that errors of service could be cured. Since the introduction of the CPR, the courts have adopted a more restrictive approach. In Shiblaq v Sadikoglu [2004] 2 All E.R. 596, the claimant asked the court to remedy an error of procedure pursuant to CPR 3.10 or to dispense with service altogether pursuant to CPR 6.9. Colman J rejected both requests. CPR 3.10 could not be used if it involved "impleading a foreign defendant in a manner impermissible by the law of his country or under any international convention". CPR 6.9 should similarly not be used to avoid a defect in service which is inconsistent with a service convention binding between England and the country of service.
The Court of Appeal, in Phillips v Nussberger [2006] 1 WLR 2598, endorsed Shiblaq, holding that CPR 6.9 could not be relied on to obtain an order dispensing with service in order to allow the English courts to be first seised, thus winning a jurisdiction race with the Swiss courts. Although CPR 3.10 was not in issue in the appeal, the Court of Appeal considered whether, if it had been, it could have assisted the appellant. The conclusion was that it could not have – "CPR 3.10 does not have the effect of treating the document as fictionally having been served".
In Olafsson v Gissurarson [2006] EWHC 3162, the method of service used by the claimant was not permitted by local law (in this case, Icelandic law) and accordingly the defendant had not been validly served. After judgment was ordered in favour of the claimant, the defendant applied to set aside that judgment and the claimant applied for relief under CPR part 3.10. At first instance, the Master exercised his discretion under CPR 3.10 to correct the error in respect of service and the defendant appealed. Mackay J allowed the appeal.
Relying on Phillips v Nussberger (which was handed down the day before the Master heard the application and was not drawn to his attention), Mackay J concluded that CPR 3.10 cannot be used to correct an error in service in another jurisdiction (even where, as in Olaffson, the defendant had actually received a copy of the claim form and all other court documents).
However, the defendant subsequently applied to dismiss the claim after the expiration of the time for service of the claim form and Mackay J, in Olafsson v Gissurarson (No.2) [2006] EWHC 3214, ordered that service of the claim form could be dispensed with under CPR 6.9, because he regarded this as an "exceptional and very unusual case, the failure to achieve valid service being "for want of the merest of technicalities". The Court of Appeal will hear an appeal from that judgment shortly. An appeal from the decision in Phillips v Nussberger is also due to be heard shortly by the House of Lords.
Can claim form be amended post service out of the jurisdiction?
ED&F Man Sugar v Lendoudis [2007] EWHC 2268 was a case involving an attempt by the claimant to enforce a Greek judgment at common law (his attempt to rely on EC Council Regulation 44/2001 having failed) despite not having pleaded a claim at common law in his claim form (although he had pleaded the existence of the Greek judgment). Reference was made to the case of In Re Vandervell's Trust (No 2) [1974] in which Lord Denning MR had held that it is sufficient for the pleader to state the material facts - he need not state the legal result as well. However, in Metall und Rohstoff [1990], in relation to a pleading intended to be served out of the jurisdiction, the Court of Appeal held that different conditions applied: "if the draftsman of a pleading...can be reasonably understood as presenting a particular head of claim on one specific legal basis only, the plaintiff cannot thereafter...be permitted to contend that that head of claim can also be justified on another legal basis" (per Slade LJ).
In Lendoudis, Clarke J confirmed that that principle applied after the introduction of the CPR regime. To allow the claimant permission to amend his claim form by adding a cause of action after expiry of the limitation period, or to grant retrospective permission to serve the amended claim form out of the jurisdiction, would be to allow him to circumvent the proper procedure and accordingly Clarke J declined to make the requested orders.
Proposed amendments to CPR Part 6
The Ministry of Justice published a consultation paper on proposed changes to Part 6 on 5 July 2007. The closing date for responses to the paper was on 28 September 2007. The paper was said to be intended to simplify the rules on service both within and out of the jurisdiction.
Two of the specific questions raised in the paper were whether a party should be able to give an address for service anywhere within the EU and whether a party should be able to provide up to three addresses fro service, of which at least one should be a postal address within the UK or EU..
A draft new Part 6 was also annexed to the paper. There is very little in the draft which differs from the current Part 6 insofar as it relates to service out of the jurisdiction. The main proposed changes are as follows:
1) Separate provisions to be introduced for service out of the jurisdiction in Scotland and Northern Ireland.
2) An order granting permission to serve the claim form out of the jurisdiction in a non-EU country will have to specify the period within which the defendant may file an acknowledgment or service, admission, defence or (as a new requirement) any other response or document required by any other enactment, a rule in another Part or a practice direction.
3)Where a court gives permission, it may also give directions about the method of service and give permission for service of other documents in the proceedings to be served out of the jurisdiction.
4) A link is to be set up in Part 6 to the Foreign and Commonwealth Office's website where a list of the countries with whom the UK has entered into a Civil Procedure Convention, together with a link to the relevant Convention, can be found.
5) In relation to proof of service, where a hearing is fixed when the claim is issued and the claim form is served out of the jurisdiction, the claimant may not obtain judgment (currently, the claimant "may take no further steps") against a defendant who fails to appear at the hearing until written evidence of service has been filed.
6) Recognition that Regulation 1348/2000 has now been extended to Denmark.
7) A new practice direction for service out of the jurisdiction is proposed.
Further information from the Ministry of Justice regarding the consultation and amendment process is currently awaited.