Post Brexit provisions for service out of Jurisdiction
This article will look into the provisions for serving a claim out of jurisdiction post Brexit to include details on what changes have been made.
It also offers some general guidance and tips for a claimant when serving notice out of jurisdiction.
The article will discuss the following;
· What was the situation pre Brexit?
· What are the changes post Brexit?
· What are the impacts of the changes for service out of Jurisdiction?
· What you need to be aware of
· Useful points to consider
The term Brexit is one we are all too familiar with. No doubt you are aware that many changes accompany the term, including legal ones.
One of the legal implications post Brexit is regarding what the provisions are for serving notice out of jurisdiction where the proceedings are cross-border civil or commercial ones and could normally be served in England.
What was the situation pre Brexit?
Prior to the UK's exit from the European Union, when a claimant wished to serve out of jurisdiction for a dispute arising from a contract, they would normally need to obtain permission from the English courts unless one of the following applied:
1. The English court has jurisdiction because the contract contains an English jurisdiction clause. This rule is as a result of the recast Brussels Regulations.
2. The English court has jurisdiction not as a result of an English jurisdiction clause, but instead as prescribed by either the Brussel Regulations, the 2005 Hague Convention on Choice of Court Agreements (“HCCCA 2005”), or the Brussels or Lugano Conventions.
There are also other reasons why a claimant may not have needed to obtain permission from the court for service out of jurisdiction but these are extremely limited.
Where points 1 and 2 above did not apply and therefore, a claimant required permission of the English courts to serve out of jurisdiction, the process under the Civil Procedure Rules (“CPR”) 6.36 applied for the methods of service
What are the changes post Brexit?
When the transition period came to an end, the Court rules for how a claimant can serve proceedings outside of the UK were changed.
The change which was proposed by both the Law Society and the Lord Chancellor’s Advisory Committee on Private International Law came into practice on 6 April 2021.
The change for service out of jurisdiction is detailed in rule 6.33 (2B) of The Civil Procedure (Amendment) Rules 2021 and allows a claimant to serve out of jurisdiction for disputes arising from an English jurisdiction clause without needing to obtain permission from the English courts first.
Permission is not required where either:
· the EU court concerned has been granted jurisdiction through the 2005 Hague Convention
· the contract concerned stipulates that the EU court has jurisdiction
The change is not limited to EU countries but can apply to defendants anywhere in the world.
The changes to the provisions to service out of the jurisdiction where permission is not required by the English court are, therefore, considered a wider rule to how the provisions were under the Brussel Regulations.
Why has the change post Brexit been made?
If the change to the court rules for service out of jurisdiction post Brexit had not occurred, there would be limited circumstances on which a claimant would not need to seek the English courts permission to serve out of jurisdiction.
This is because some of the reasons pre Brexit no longer applied due to the UK leaving the EU and therefore, relevant legislation no longer applying.
This leaves the HCCA 2005 to provide the ability for a claimant to serve out of jurisdiction post Brexit where the English jurisdiction clause relating to their contractual dispute falls within the agreement.
However, if the EU approves the application the UK has made to the Lugano Convention this would again be of relevance in terms of not requiring permission to serve out of jurisdiction on a defendant who resides in an EU member State.
The reasoning behind the change to the provision for service out of jurisdiction is to ensure that businesses have confidence and reassurance that opting for a choice of court agreements is still a favourable option.
What are the impacts of the changes for service out of Jurisdiction?
A claimant when serving out of jurisdiction will need to follow the steps set out in section 6.34 of the CPR. These detail that:
1. The claimant should include details with the claim regarding the conditions they are relying on to serve the proceedings out of the jurisdiction.
2. The claim cannot be served without the above details unless the court grants permission.
Useful points to consider
Below are some useful points regarding the new rule changes regarding service out of jurisdiction which the claimant should be aware of:
· Service out of jurisdiction can be challenged by the defendant following the serving of proceedings if they argue, for example, that the claim is not best dealt with by the English courts.
· Where a claimant does require permission from the court to serve out of jurisdiction, this procedure may require additional time and costs as the claimant needs to detail a “full and frank” disclosure as part of their application.
· If a claimant requires permission from the court to serve out of jurisdiction they must be able to demonstrate either that (a) the issue at stake is a serious one or (b) they are likely to be successful in the claim.
In this article we have looked at the changes to the Civil Procedure Rules regarding service out of jurisdiction post Brexit in terms of when a claimant does not need to seek permission from the English courts.
This change is considered a positive change as it allows service on those residing in any country and not just within the EU.