Service of a claim outside the jurisdiction post-Brexit: Some helpful guidance from the court

8 minute read
24 October 2023

Valid service of the claim form on a defendant is a crucial step in the commencement of proceedings in England and Wales. If proceedings are not effectively served, then a defendant can challenge the jurisdiction of the court to deal with the claim and can ask for the proceedings to be 'struck-out'.

In this article, we take a look at a recent High Court case that has provided some helpful guidance on serving a claim outside the jurisdiction of England and Wales under section 6.33(2B)(b) of the Civil Procedure Rules 1998 (the CPR).

Service of a claim outside the jurisdiction

Service of a claim form on a defendant who resides, or is based outside, the jurisdiction of England and Wales requires compliance with the CPR; specifically, the rules dealing with service out of the jurisdiction. Unless one of the exceptions in CPR 6.32 or 6.33 applies, the court's permission to serve the claim form outside the jurisdiction will be required (thereby significantly complicating, and increasing the costs of, commencing the claim).

If the court's permission is required to serve the claim form out of the jurisdiction, then it will be necessary for a claimant to satisfy the court that (among other things) one of the "gateways" in paragraph 3.1 of CPR PD 6B is engaged. Although beyond the scope of this article, we note for completeness that those gateways have also been expanded in the post-Brexit era.

CPR 6.33 was amended to reflect the fact that the Brussels 1 Recast Regulation no longer applies in the UK after the Brexit transition period, and has now broadened the cases in which service can be effected without the court's permission - beyond those cases where there is an exclusive jurisdiction clause in favour of the English Court that engages the 2005 Hague Convention on the Choice of Court Agreements (the Hague Convention).

Following amendments made in April 2021 and October 2022, CPR 6.33(2B) allows a claimant to serve the claim form on a defendant outside the jurisdiction, without the permission of the court, if:

  • The court has power to determine that claim under the Hague Convention (CPR 6.33(2B)(a)); or
  • A contract contains a term to the effect that the court shall have jurisdiction to determine that claim (CPR 6.33(2B)(b)); or
  • The claim is in respect of such a contract (CPR 6.33(2B)(c)).

The recent case of Pantheon International Advisors v Co-Diagnostics (2023) EWHC 1953 is one of the first cases that looks at the operation of the jurisdictional gateway under CPR 6.33(2B)(b) and it provides some helpful guidance to those seeking to rely on it.

The facts in Pantheon v. Co-Diagnostics

The claimant (Pantheon) was a company registered in England which had entered into contract with the defendant (Co-Diagnostics), a company registered in Utah, United States. A written contract (signed by both parties) had been entered into in 2016, in accordance with which Pantheon agreed to assist Co-Diagnostics in raising capital in the UK markets. Pantheon alleged that it had not received payment under the 2016 contract, as a result of which a second, albeit unsigned, contract was entered into in 2018. Both contracts included an English choice of law clause and an exclusive jurisdiction agreement in favour of the English courts.

In June 2021, Pantheon issued a claim against Co-Diagnostics, seeking payment of fees that remained outstanding under the 2018 contract. Relying on the exclusive jurisdiction clause, they served proceedings without seeking permission of the court – using the gateway in CPR 6.33(2B)(b) (the Hague Convention gateway not being an option because the United States are not a party to it). In response, Co-Diagnostics challenged the jurisdiction of the English courts, asserting that no legally binding agreement was ever signed or entered into between the parties, and there was therefore no enforceable English jurisdiction clause upon which Pantheon could rely.

High Court decision

Master Stevens confirmed that in relying on CPR 6.33(2B)(b) the claimant will carry the burden of establishing a 'good arguable case' that:

  1. the contract in respect of which the claim was made existed and was legally binding;
  2. it contained a valid and effective jurisdiction agreement in favour of the English Courts that was binding on the defendant; and
  3. the dispute between the parties fell within the scope of that jurisdiction agreement.

Guidance on what is a good arguable case had been laid out in earlier Supreme Court and Court of Appeal decisions, which the parties accepted were to be relied upon despite being decided before the introduction of the gateway in CPR 6.33(2B)(b). In summary, a three-stage test was to be followed;

  1. the claimant must supply a 'plausible evidential basis' that it has the better argument that the relevant gateway applies (in this case that there was a valid exclusive jurisdiction clause);
  2. while the court will not conduct a mini-trial, if there is a disputed issue of fact, it must take a view on the material available if it can reliably do so; and
  3. if the court cannot form a conclusion on the evidence, it must combine the good arguable case test with the plausible evidence test.

Master Stevens held that Pantheon had a good arguable case – supported by the plausible evidence that had been put before her - that the terms of the 2018 contract were agreed and that the parties had intended to be bound by those terms, despite Co-Diagnostics not having signed the written contract.

Co-Diagnostics' words and conduct had demonstrated that they had intended to be bound by the 2018 contract. There was, therefore, a good arguable case that:

  1. the 2018 contract was binding;
  2. it contained a valid jurisdiction agreement; and
  3. the dispute fell within the scope of that agreement.

Retrospective service

During the hearing Pantheon also sought permission for retrospective service, should they fail in their assertion that the 2018 contract claim had been validly served. Notwithstanding the fact Master Stevens agreed with Pantheon that proceedings had been validly served under CPR 6.33(2B)(b), she also considered whether the requirements for service under CPR 6.36 and 6.37 would be met – in the event her conclusions were wrong.

Master Stevens held that the facts before her meant the interest of justice would require retrospective permission to be granted in any event. The good arguable case test set out in PD 6B paragraph 3.1(6) applied - there was a good arguable case that the contract was made within the jurisdiction or otherwise governed by English law. The merits threshold was met as Master Stevens was satisfied that Pantheon had a reasonable, as opposed to a fanciful, prospect of success and the exclusive jurisdiction clause was persuasive evidence that England was the appropriate forum. If permission of the court had been formally sought it would have been appropriate, pursuant to her inherent discretion under CPR 3.10, to permit retrospective service out of the jurisdiction of the claim.

In summary

The judgment provides helpful guidance on the issues to consider when deciding whether proceedings can be served outside the jurisdiction without permission of the court, in accordance with CPR 6.33(2B)(b).

In practice, commencing and serving claims in the English Court against parties out of the jurisdiction remains a highly technical area, fraught with difficulty (and potential pitfalls).

To discuss any of the points raised in this article, please contact Sean Adams or Tom Price.

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