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Post-Brexit Cross Jurisdiction Claims and Service

27 February 2021

In this article, we look at the new rules on service outside the jurisdiction following the end of the Brexit implementation period on 31 December 2020.

A good understanding of the new service rules is absolutely key for anyone involved in cross-border business and claims.

Service of Documents

Where a claim involves another party outside of the UK, it will be necessary to serve key legal documents on them in order to advance the claim. This is an important factor when considering the timeline of any claim, as serving the initial claim documents can create significant delays when they have to be served on those abroad.

Claims issued by 31 December 2020

Before Brexit and in accordance with Regulation EC No. 1393/2007 of the European Parliament (“Service Regulation”), English court proceedings were able to be served on defendants in other EU Member States without requesting permission from a court to do so, which was a relatively quick and cost-effective process.

The Service Regulation permits a variety of methods of service:

  1. service between designated state central bodies (Article 4);
  2. postal service where proceedings are sent by the EU Member State (Article 14); and
  3. direct service where permitted under the law of the EU Member State (Article 15).

The Lugano Convention is an international treaty between the EU and the Lugano countries (Iceland, Norway and Switzerland) that attempts to clarify which national courts have jurisdiction in cross-border civil and commercial disputes and ensures that judgements taken in such disputes can be enforced across borders. The transitional arrangements appear not to apply to the Lugano countries and so the UK is essentially a third party nation when dealing with these countries (and does not appear to have retained the benefits of dealing with these countries that EU membership grants).

Claims issued after 31 December 2020

As of 11pm on 31 December 2020, no formal arrangements between the UK and the EU were put in place in respect of which national courts have jurisdiction in cross-border civil and commercial disputes and in respect of service and enforcement within the EU. However, it is important to note that permission to serve abroad in claims issued after 31 December 2020 may not be required in claims relating to consumer contracts and employment contracts as the withdrawal agreement sets in place a framework with the EU moving forward in these cases .

Claimants must instead effect service on defendants in most other EU Member States in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). The Hague Convention is a multilateral treaty between 75 states (including the EU, US, UK, China, Russia, Brazil and India) to give litigants a reliable and efficient means of serving documents in another country.

Hague Convention

In accordance with the Hague Convention, those serving claims issued after 31 December 2020 outside the UK will generally be required to obtain the court’s permission under Civil Procedure Rule 6.36 (unless there is an exclusive jurisdiction agreement within the 2005 Hague Convention).

The general principles applied by the courts when determining an application to serve outside the jurisdiction are:

  1. Is there a good arguable case that the claim falls within one or more of the heads of jurisdiction as set out in paragraph 3.1 of Practice Direction 6B?
  • Is there a serious issue to be tried on the merits of the claim?
  • In all the circumstances, England is clearly or distinctly the appropriate forum for the trial of the dispute (forum conveniens).

Future Proposals

There is no currently agreed formal agreement between the UK and EU moving forward and the Hague Convention will have to be relied upon for service out of jurisdiction.

The UK submitted its application to join the Lugano Convention on 8 April 2020. The UK’s application has been approved by all parties to the convention except for the EU. If the UK is invited to join, it will still take three months before it can become a party and before any changes to the service rules are affected.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Dominic Holden or write to us using the contact form below.

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