Your Claim's Ticket Out Of The Jurisdiction

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

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.

Gateways 1 & 1A

Prior to 1 October 2022, Gateway 1 allowed claims to be served out of the jurisdiction where the defendant (either an individual or a company) was domiciled within England and Wales (within the meanings of s.41 & 42 Civil Jurisdiction and Judgments Act 1982). This has now been expanded by Gateway 1A, which allows service out of the jurisdiction where the defendant has a branch, agency, or other presence within England and Wales, provided that it is not possible to serve proceedings on the defendant itself.

This is a helpful development for claimants and reflects the operation of a global market, blurring the distinction between each presence of an international entity.

Gateways 6 & 7

Gateways 6 & 7 are not new additions but have been expanded by the recent revisions and are useful to understand as...