It serves you right: procedural steps for making a claim out of jurisdiction

If a defendant is not served with a valid claim, a claim can be challenged and ultimately struck out. This validity extends to jurisdiction, and this can be procedurally complicated if a defendant resides in a different territory to the claimant. Previously in this two-part series, we identified the circumstances when you can serve a defendant within the jurisdiction, and when you do and don't require court permission to proceed.

In part two of this series, we share the keys procedural steps to take when serving a claim against a defendant residing in a different jurisdiction to the claimant.

Procedural steps when seeking permission to serve outside jurisdiction

The claimant will need to make an application to the court when seeking permission to serve outside of the jurisdiction. This application should include a supporting witness statement covering:

1. The grounds on which the application is made i.e. which ‘gateway’ is being used;
2. Why England and Wales is the most appropriate jurisdiction;
3. Why the claim has a reasonable prospect of success; and
4. the place, country and/or address at which the defendant can be served.

The claimant must provide all relevant documents to the court, including documents that could be detrimental to the application such as any defences that might apply.

Next steps once permission is granted

If permission to serve outside the jurisdiction is granted, an order will be granted by the court which usually:

1. Identifies the country where a defendant can be served;
2. Sets out the period the defendant has to respond to the claim;
3. Directs how a claim form should be served; and
4. Provides permission to serve documents other than the claim form out of jurisdiction.

Time limits and deadlines

If a claim form is to be served out of jurisdiction, it must be served within six months of the date it is issued at court.

Method to serve English proceedings out of jurisdiction

The correct method to serve English proceedings out of jurisdiction will depend on the country within which a defendant is being served. The most common ways to serve such proceedings are via:

1. Designated court officers, in some states known as a central authority, who would transmit on to the relevant parties. In England and Wales, this is the Senior Master who is located in the Royal Courts of Justice.
2. An agent, generally being a local lawyer or process server.
3. The Foreign, Commonwealth & Development Office (FCDO).

As service is not straightforward, it is usually advisable to allow at least 2-4 months for this to take place.  The timeframe in which a defendant must respond is usually specified by the court and can differ depending on the country.

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