It serves you right: key considerations for serving a claim form out of jurisdiction

Jurisdiction is the authority of a court of law or an official to carry out legal judgments or to enforce laws within a specific country or territory. The United Kingdom comprises three separate legal systems: one each for England and Wales, Scotland and Northern Ireland.

When serving a defendant, a valid claim is key, and this extends to jurisdiction.  If not done properly, a defendant can challenge jurisdiction or strike the claim out, preventing the claimant from continuing with the claim.

In the first of a two-part series, we share a guide to the keys steps to take when making a claim against a defendant residing in a different jurisdiction to the claimant.

When you can serve within the jurisdiction

In the first instance, steps should be taken to try and identify if there is a way a defendant might be served within the jurisdiction. This might include where a defendant is an overseas company but has a registered office in England or Wales, or there are provisions within a contract between the parties, allowing service within the jurisdiction.

When no court permission is required to serve outside jurisdiction

The general rule is that a claimant will need to obtain permission of the court to serve a claim outside the jurisdiction. There are exceptions to this which include:

1. Where the courts of England and Wales have jurisdiction to serve a defendant located elsewhere in the UK, other than England or Wales (i.e. Scotland or Northern Ireland only).
2. Where a contract connected to the dispute includes a provision designating the courts of England and Wales as having jurisdiction and there is a good arguable case that the jurisdiction is appropriate.
3. Where a claim relates to a matter for which English courts have extraterritorial jurisdiction (usually applicable to statutes which have empowered the courts to hear such matters).

Where permission to serve outside the jurisdiction is not required, the claimant must file a notice (form N510) with the claim form, stating the grounds on which the claimant is entitled to serve out of England and Wales.

When court permission is required to serve outside jurisdiction

If no exceptions apply, and the defendant is outside the jurisdiction, a claimant must seek permission of the court to serve proceedings out of the jurisdiction.

Before granting permission, the overriding test the court will consider before granting permission is whether the dispute has a sufficient connection with England through one of the ‘gateways’. Possible gateways include, but are not limited to, breaches of contract committed in the jurisdiction and tort claims which are governed by English law.

In the second part of this series, we provide guidance on the procedural steps to take when serving outside jurisdiction.

Our Commercial Disputes team has a depth of experience in resolving disputes swiftly and painlessly, and provides sensible, practical solutions and sound advice. We understand individuals and businesses need realistic solutions to their issues and we take a commercial approach, providing pragmatic and straightforward advice to guide clients to the route best suited to their situation.

If you would like to find out more how we can support on contractual disputes, please get in touch.