Service of English Legal Proceedings outside England
Service of documents is about bringing the legal proceedings to the attention of the defendant
. It is important, as a court will not wish make orders contrary to a defendant's interests (such as default judgment) unless it is satisfied that the legal proceedings have been properly served. Simply because a person has left the jurisdiction, does not mean that a claim cannot be pursued against them. The same applies for companies domiciled outside the jurisdiction.
Commencing Proceedings
One of the first issues when a claimant contemplates issuing court proceedings within the jurisdiction of the English Courts arises where the defendant is domiciled outside the jurisdiction of English Courts, namely England or Wales. If a defendant is outside the jurisdiction, the claimant must consider the additional steps and issues that it would likely need to take in order to both serve the proceedings and enforce judgment should the claim be successful. The potential difficulties should be carefully considered by the claimant prior to issuing proceedings.
Service Out of the Jurisdiction
The rules for service of legal proceedings outside the jurisdiction differ for companies and individuals located outside the jurisdiction. In some rare circumstances, the Court may dispense with service in the usual way, however the court would need to be satisfied that there are good grounds for doing so.
The rules governing service out of the jurisdiction can be divided into two parts those where permission of the court is required and where permission is not required.
Permission not Required
Scotland and Northern Ireland
A claimant may serve a claim form out of the jurisdiction on a defendant in Scotland or Northern Ireland, and that service can be so carried out without permission of the Court. Thereafter, the Claimant may proceed to serve other court documents by the same method as used for serving documents in the jurisdiction, for instance by first-class post. This is an exception to the general rule that service must be effected in accordance with the law of the receiving country.
Continental Europe
A claim form may be served out of the jurisdiction upon a defendant without the permission of the court provided the English Courts have the power to hear and determine the disputes. The defendant must the domiciled in the United Kingdom or any Convention territory of the European Economic Community. For practical purposes, this means the claimant can serve proceedings on defendants who are domiciled in any EU member State as well as and Iceland, Norway, Switzerland and Denmark.
However, even though an application to the Court is not required in these circumstances, nevertheless the claimant may be well advised to instruct a solicitor in the relevant country as the method of service may be different to that of the United Kingdom. As an example, Italian Courts take matters of service quite seriously, and permission must be obtained from the relevant court and court documents (including translations) must be served by a bailiff. There is an alternative to this procedure, however time delays make the process undesirable where there is any urgency.
Outside Europe
If the defendant is domiciled outside of the EU and UK, the claimant must apply for the permission of an English Court to serve the proceedings on the defendant in his particular country. Applications such as these be supported by evidence to show how the jurisdiction of the English Court is established, and evidence of the location or suspected location of the defendant. Not surprisingly, such applications are common.
Unknown Location
It may be the case that when the claimant issues a claim, it is under the mistaken belief that the defendant is in the jurisdiction and can be served under the standard methods of service. Where the claimant discovers that the defendant is outside the jurisdiction, then it is able to make an application to the court either (1) where the claimant knows the defendant's current address, or (2) for alternate service where the claimant does not know the address of the defendant and look to alternate means of service upon the defendant outside the jurisdiction (such as say by email).
Where the claimant has reason to believe that the address of the defendant is an address at which the defendant no longer resides or carries on business, the claimant must take "reasonable steps" to ascertain the address of the defendant's current residence or place of address. In the event that these enquiries prove unfruitful, but it appears that an address outside of the jurisdiction is likely to bring the proceedings to the attention of the defendant, then the claimant may have enough to persuade a Court for an order for alternate service. If however, the Claimant ascertains the address of the defendant, and that address is outside the jurisdiction then he can proceed to serve the documents under the same procedure as described above.
Conclusion
After establishing that the Courts of England have jurisdiction over the disputes between the parties, the claim form may be served upon the defendant. There are a number of grounds by which jurisdiction may be established, including where a contract is stated to be governed by English law, or a
jurisdiction clause in the contract designates England as the law of the contract.
When it appears that a defendant's address is not within England or Wales, then this alone does not mean that the Claimant is prevented from pursuing his claim. The rules of court enable service of proceedings outside the jurisdiction, such that the claimant can effectively pursue his case and not be denied making a claim.
Service of English Legal Proceedings outside England
By: Leigh Ellis
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