Part 7 – Service of Court Process out of Jurisdiction

Scope of this Part

7.1

1. This Part contains provisions about the –
   1. circumstances in which court process may be served out of the  jurisdiction; and
   2. procedure for serving court process out of the jurisdiction.
2. In this Part references to service or filing copies of the claim form include –
   1. the statement of claim (unless contained in the claim form);
   2. an affidavit in support of the claim, if these Rules so require; and
   3. if permission has been given under rule 8.2 to serve the claim form without the statement of claim – a copy of the order giving permission.

General rule as to service of claim form out of jurisdiction

7.2

1. A claim form may be served out of the jurisdiction only if –
   1. rule 7.3 allows; and
   2. the court gives permission.

Service of claim form out of jurisdiction in specified proceedings

7.3

1. The court may permit a form to be served out of the jurisdiction if the proceedings are listed in this Rule.
   • Features which may arise in any type of claim
2. A claim form may be served out of the jurisdiction if a claim is made –
   1. Against someone on whom the claim form has been or will be served, and –
      1. there is between the claimant and that person a real issue which it is reasonable for the court to try; and
      2. the claimant now wishes to serve the claim form on another person who is outside the jurisdiction and who is necessary or proper party to claim;
   2. for an injunction ordering the defendant to do or refrain from doing some act within the jurisdiction; or
   3. for a remedy against a person domiciled or ordinarily resident within the jurisdiction.
      • Claims about contracts
3. A claim form be served out of the jurisdiction if –
   1. a claim is made in respect of a breach of contract committed within the jurisdiction;
   2. a claim is made in respect of a contract where the contract –
      1. contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract; or
      2. is by its terms or by implication governed by the law of any Member State Territory;
      3. was made by or through an agent trading or residing within the jurisdiction; or
      4. was made within the jurisdiction; or
   3. the claim is for a declaration that no contracts exists, where, if the contract did exist, it would fulfill one or more of the conditions in sub-paragraph (b) of this Rule.
      • Claims in tort
4. A claim form may be served out of the jurisdiction if a claim in tort is made and the act causing the damage was committed within the jurisdiction or the damage was sustained within the jurisdiction.
   • Enforcement
5. A claim form may be served out of the jurisdiction if a claim is made to enforce any judgment or arbitral award which was made by a foreign court or tribunal and is amenable to be enforced at common law.
   • Claims about property within the jurisdiction
6. A claim form may be served out of the jurisdiction if the whole subject matter of the claim relates to property within the jurisdiction.
   • Claims about companies
7. A claim form may be served out of the jurisdiction if the subject matter of the claim relates to –
   1. the constitution, administration, management or conduct of the affairs; or
   2. the ownership or control of a company incorporated within the jurisdiction.
      • Claims about trusts
8. A claim form may be served out of the jurisdiction if –
   1. a claim is made for a remedy against the defendant as constructive trustee and the defendant’s alleged ability arises out of acts committed within the jurisdiction;
   2. a claim is made for –
      1. any remedy which might be obtained in proceedings for the administration of the estate of; or
      2. in probate proceedings as defined in Part 68 relating to; a person who died domiciled within the jurisdiction; or
   3. a claim is made for any remedy which might be obtained in proceedings to execute the trust of a written instrument and the –
      1. trusts ought to be executed according to the law of any Member State or Territory; and
      2. person on whom the claim is to be served is a trustee of the trusts.
         • Claims of restitution
9. A claim is made for restitution where the defendant’s alleged ability arises out of acts committed within the jurisdiction or out of acts which, wherever committed, where to the detriment of a person domiciled within the jurisdiction
   • Claims under an enactment conferring jurisdiction on the Court
10. A claim is made under an enactment which confers jurisdiction on the court and the proceedings are not covered by any of the other grounds referred to in this Rule.

Proceedings which include other types of claim

7.4

1. If the claimant makes a claim which falls within –
   1.  rule 7.3(3) (claims about contracts);
   2. rule 7.3(4) (claims in tort); or
   3.  rule 7.3(7) (a) (claims against the defendant as a constructive trustee);the court may grant any claim for a remedy which –
      1.  does not fall within rule 7.3; but
      2. arises out of the same facts or substantially the same facts as the claim in respect of which the order is made.

Permission to serve claim form out of jurisdiction

7.5

1. An application for permission to serve out of the jurisdiction may be made without notice but must be supported by evidence on affidavit stating –
   1. the grounds on which the application is made;
   2. that in the deponent’s belief the claimant has a claim with a realistic prospect of success;
   3. in what place, within what country, the defendant may probably be found; and
   4.  if the application is made under rule 7.3 (2) (a), the grounds for the deponent’s belief that the conditions are satisfied.
2. An order granting permission to serve the claim form out of the jurisdiction must state the periods within which the defendant must –
   1. file an acknowledgement of service in accordance with Part 9; and
   2. file a defence in accordance with Part 10.
3. The periods for filing a document under paragraph (2) are to be determined by reference to a relevant practice direction.

 Acknowledgment of service and defence where claim form served out of the jurisdiction

7.6

1. A claim form to be served out of the jurisdiction must be amended to state the period within which the –
   1.  acknowledgement of service; and
   2. defence; must be filed.

 Application to set aside service under rule 7.3                                                                                       

7.7

1. Any person on whom a claim form has been served out of the jurisdic­tion under rule 7.3 may apply to set aside service of the claim form.
2. The court may set aside service under this rule if –
   1. service out of the jurisdiction is not permitted by the rules;
   2. the claimant does not have a good cause of action; or
   3. the case is not a proper one for the court’s jurisdiction.
3. This rule does not limit the court’s power to make an order under rule 9.7 (procedure for disputing the court’s jurisdiction, etc.).

 Mode of service of claim form – general provisions

7.8

1. Subject to the following paragraphs of this rule, and Rule 7.8A if a claim form is to be served out of the jurisdiction, it may be served –
   1. by a method provided for by –
      1. rule 7.9 (service through foreign governments, etc.); or
      2. rule 7.11 (service on a State);
   2. in accordance with the law of the country in which it is to be served; or
   3. personally by the claimant or the claimant’s agent.
2. Nothing in this Part or in any court order may authorise or require any person to do anything in the country where the claim form is to be served which is against the law of that country.

Mode of service – alternative procedure

7.8A

1. Where service under Rule 7.8 is impracticable, the claimant may apply for an order under this Rule that the claim form be served by a method specified by the court.
2. An order made under this Rule shall specify the date on which service of the claim form shall be deemed to have been affected.
3. Where an order is made under this Rule, service by the method specified in the court’s order shall be deemed to be good service.
4. An application for an order under this Rule may be made without notice but must be supported by evidence on affidavit –
   1. specifying the method of service proposed;
   2. providing full details as to why service under Rule 7.8 is impracticable;
   3. showing that such method of service is likely to enable the person to be served to ascertain the contents of the claim form and statement of claim; and
   4. certifying that the method of service proposed is not contrary to the law of the country in which the claim form is to be served.
5. Where any method of service specified in an order made under this Rule is subsequently shown to be contrary to the law of the country in which the claim was purportedly served, such service shall be invalid.

Power of the court to dispense with service of the claim form

 7.8B

1. The court may dispense with service of a claim form in exceptional circumstances.
2. An application for an order to dispense with service may be made at any time and –
   1. must be supported by evidence on affidavit; and
   2. may be made without notice.

Service of claim form through foreign governments, or judicial or consular authorities

7.9

1. This rule does not apply to service in –
   1. any independent Commonwealth country;
   2. the Republic of Ireland; or
   3. the United Kingdom, the Isle of Man or the Channel Islands; unless the claim form is to be served in accordance with paragraph(3)
2. The methods of service permitted by this rule are in addition to any method of service permitted under rule 7.8(1) (b) or (c).
   • Service under the Hague Convention
3. A claim form to be served on a defendant in any country which is a party to the Hague Convention may be served –
   1. through the authority designated under the Hague Convention in respect of that country; or
   2. if the law of that country permits –
      1. in the case of a claim form issued in a Member State – through its consular authority in that country;
      2. in the case of a claim form issued in a Territory – through the British consular authority in that country; or
      3. through the judicial authorities of that country.
         • Service under other Conventions
4. A claim form to be served on a defendant in any country which is a party to a Civil Procedure Convention (to which the relevant Member State or Territory is also a party or which has been extended to the relevant Member State or Territory) other than the Hague Convention providing for service of court process in that country, may be served, if the law of that country permits –
   1. in the case of a claim form issued in a Member State – through its consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served);
   2. in the case of a claim form issued in a Territory – through the British consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served); or
   3. through the judicial authorities of that country.
      • Service where there is no applicable Convention
5. A claim form to be served on a defendant in any country with respect to which there is no relevant Civil Procedure Convention providing for service of court process in that country may be served, if the law of that country so permits –
   1. in the case of a claim form issued in a Member State – through its consular authority in that country;
   2. in the case of a claim form issued in a Territory – through the British consular authority in that country; or
   3. through the government of that country, if that government is willing to serve it.

Procedure where claim form is to be served through foreign governments, etc.

7.10

1. This rule applies where the claimant wishes to serve the claim form through the
   1. authority designated under the Hague Convention or any other relevant Civil Procedure Convention in respect of that country;
   2. consular authority of a Member State or, in the case of a Territory, the British consular authority in that country;
   3. government of that country; or
   4. judicial authorities of the country where the claim form is to be served.
2. If this rule applies, the claimant must file –
   1. a copy of the claim form;
   2. an additional copy of the claim form for each person to be served;
   3. a request for service of the claim form by the claimant’s chosen method; and
   4. any translation required by rule 7.12.
3. When the claimant files the documents specified in paragraph (2) the court office must
   1. seal the copy of the claim form; and
   2. send the documents filed to the minister with responsibility for foreign affairs with a request that the minister arrange for the claim form to be served –
      1. by the method indicated in the request for service filed under paragraph (2); or
      2. if the request indicates alternative methods – by the most convenient method.
4. An official certificate which –
   1. is made by –
      1. a consular authority of a Member State or a British consular authority in the country where the claim form was served;
      2. the government or judicial authorities in that country; or
      3. any other authority designated in respect of that country under the Hague Convention or any other relevant Civil Procedure Convention;
   2. states that the claim form has been served in accordance with this rule either personally or in accordance with the law of the country in which service was effected; and
   3. specifies the date on which the claim form was served;  is evidence of the facts stated in the certificate.
5. A document purporting to be an official certificate under paragraph (4) is to be treated as such a certificate, unless it is proved not to be.

Service of claim form on a State where court permits service out of jurisdiction

7.11

1. This rule applies where a claimant wishes to serve a claim form on a State.
2. If the State has agreed to a method of service other than a method permitted by this Part, the claim form may be served either by the method agreed or in accordance with the other rules in this Part.
3. The claimant must file at the court office –
   1. a copy of the claim form;
   2. any translation required by virtue of rule; and
   3. arequest for service to be arranged by the Minister with responsi­bility for foreign affairs.
4. The court office must send documents filed under this rule to the minister with responsibility for foreign affairs with a request that the minister arrange for the claim form to be served.
5. If a Member State or Territory has under any enactment relating to state immunity agreed to a method of service, the claim form may be served either by the method agreed or in accordance with this rule.
6. An official certificate by the minister with responsibility for foreign affairs stating that a claim form has been duly served on a specified date in accordance with a request made under this rule is evidence of that fact.
7. A document purporting to be such a certificate is to be treated as such a certificate, unless it is proved not to be.

Translation of claim form

7.12

1. Except where paragraph (4) or (5) applies, every copy of the claim form filed under rule 7.10 or rule 7.11 must be accompanied by a translation of the claim form.
2. The translation must be –
   1. in the official language of the country in which it is to be served; or
   2. if there is more than one official language of that country – in any official language which is appropriate to the place in the country where the claim form is to be served.
3. Every translation filed under this rule must be certified by the person making it to be a correct translation, and the certificate must state –
   1. the name of the person making the translation; and
   2. his or her –
      1. address; and
      2. qualifications for making the translation.
4. If the claim form is to be served –
   1. in a country of which English is an official language; or
   2. by a consular authority of a Member State or, in the case of a Territory, a British consular authority on a citizen of a Member State or Territory;
      • the claimant is not required to file a translation of a claim form filed under rule 7.9 (service through foreign governments, etc.) unless a relevant Civil Procedure Convention  expressly requires a translation.
5. The claimant is not required to file a translation of a claim form filed  under rule 7.11 (service on a State) if English is an official language of the State where the claim form is to be served.

Undertaking to be responsible for expenses of minister with responsibility for foreign affairs

7.13

1. A person filing a request for service under rule 7.9 (service through foreign governments, etc.) or rule 7.11 (service on a State) must undertake in the request –
   1. to be responsible for all expenses incurred by the Minister with responsibility for foreign affairs; and
   2. on being informed of the amount of those expenses to –
      1. pay that amount to the Accountant General or other financial officer for the Member State or (Territory concerned; and
      2. produce a receipt for the payment to the court office.
2. The claimant may take no further step in the proceedings until the claimant produces the receipt required by paragraph (1) (b) (ii).

Service of court process other than claim form

7.14

1. An application, order or notice issued, made or given in any proceed­ings may be served out of the jurisdiction without the court’s permission if it is served in proceedings in which permission has been given to serve the claim form out of the jurisdiction.
2. The procedure by which a document specified in paragraph (1) is to be served is the same as that applicable to the service of a claim form and accordingly rules 7.8 to 7.13 apply.