Your Claim's Ticket Out Of The Jurisdiction

• Published date: 02 February 2023
• Subject Matter: Transport, Marine/ Shipping
• Law Firm: Birketts
• Author: Ms Naomi Butt, Olivia Morton and Tom Hodges
• topic: Contracts,Civil Procedure

Introduction

To serve a claim out of jurisdiction (that is, in the international sense beyond England and Wales) where permission of the court is required, the claim must satisfy a number of conditions (VTB Capital v Nutritek International [2012] EWCA Civ 808):

1. the claimant has a good, arguable case that the claim falls into one of the jurisdictional gateways in PD 6B3.1;
2. there is a serious issue to be tried on the merits of the claim; and
3. England and Wales is the clear appropriate forum for trialling the dispute and the court should exercise its discretion to permit service in all the circumstances.

The standard of proof to meet the above conditions is lower than the usual civil standard of the balance of probabilities. The Claimant must have a "good, arguable case", being a better argument than the Respondent on the material available to the court at the time of the application (Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547). This is known as the "Canada Trust gloss".

In some circumstances, permission may not be required to serve out, for example where the parties have contractually agreed for disputes to be heard by the courts of England and Wales. This article focuses on the procedure where these do not apply and permission of the court is required.

Gateways for contractual & tortious claims

Including the new gateways effective from 1 October 2022, there are 37 possible gateways to service of proceedings outside the jurisdiction. In good news for claimants, the recent expansion captures a wide range of claims.

The focus of this article is contractual and tortious claims, which are covered by Gateways 1, 1A, 6, 7, 8, 8A, 9, and 19.

...