Service Out Of The Jurisdiction - Expansion Of The Gateways

• Published date: 09 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Norton Rose Fulbright
• Author: Antony Corsi and Gill Davy

A claimant wishing to bring proceedings in the English Courts against a defendant who is outside of the jurisdiction may need to satisfy the Court the claim falls within one of the 'jurisdictional gateways' in CPR Practice Direction 6B. With effect from 1 October 2022, many of the existing jurisdictional gateways have been widened and new gateways have been added, such that it is challenging to think of a claim that would not fall within them.

This article explains some of the new gateways and considers how this expansion is consistent with the wide view the Courts have taken when interpreting and applying the gateways. As the scope of the Courts' territorial jurisdiction is now primarily controlled by the question of whether England is the proper place to bring the claim, parties to cross-border disputes seeking to resist the jurisdiction of the English Courts should focus their arguments on this issue as the main battleground.

Test for permission to serve out of the jurisdiction

At common law, the jurisdiction of the English Courts is based on valid service on the defendant. Where the defendant is outside the jurisdiction the claimant may need the Court's permission to serve proceedings on the defendant (including on defendants in EU and Lugano states, post-Brexit). There are a number of situations where permission is not required, for example, where the parties have agreed a jurisdiction clause in favour of the English Courts. Where these do not apply and permission is required, the claimant must make an application to Court (usually a "paper" without notice application) and satisfy the Court pursuant to CPR 6.37 that:

1. the claim has reasonable prospects of success;
2. the claim satisfies a jurisdictional gateway in PD 6B; and
3. England and Wales is the proper place to bring the claim (often referred to as the forum conveniens). The Court will take into account matters relevant to convenience and expense, such as the availability of evidence and witnesses, the law governing the dispute and the place where the parties reside or carry on business among other factors.

The jurisdictional gateways are essentially a list of factors or circumstances which establish a connection between the dispute and England which make it potentially appropriate for the case to be heard by the English Courts. Following a review of the existing gateways by the Civil Procedure Rule Committee Service Sub-committee (the "Sub-committee"), significant changes were made to the gateways...