When seeking to serve a claim form on a defendant out of the UK, permission is required unless one of the exceptions listed in CPR 6.33 applies.

The test applied by the court for obtaining permission to serve out of the UK is set out in CPR 6.37:

1. One of the jurisdictional gateways set out in paragraph 3.1 of PD6B must apply;
2. The claimant must have a reasonable prospect of succeeding in its claim;
3. Where the claimant is seeking to add another defendant to the proceedings who is a necessary and proper party to that claim, there must be a real issue to be tried as between the claimant and that defendant; and
4. The courts of England and Wales are the proper forum in which to bring the claim (i.e. ‘forum conveniens’).

Amendments to the jurisdictional gateways

From 1 October 2022, PD 6B paragraph 3.1 has been amended to include a number of new jurisdictional gateways, including::

1. Claims relating to the operation of a branch or agency where that branch or agency cannot be served within the jurisdiction (1A)
2. Claims under contract where an offer was received in the jurisdiction (6(a))
3. Claims for unlawfully causing or assisting in a breach of contract (8A), trust (15A), fiduciary duty (15C), or confidence or misuse of private information (21) where there is sufficient connection with the jurisdiction
4. Claims listed in (c) above where the breach is (or acts causing damage) either committed or is “likely to be committed” within the jurisdiction (7, 9(b), 12E, 15B, and 21(b))
5. Declarations that a party is not liable (16A)
6. Contempt applications (24)
7. Applications for disclosure relating to a defendant’s identity or the status of the applicant’s property, e.g. Norwich Pharmacal Orders (25)

Practical effect of the new jurisdictional gateways

While the addition of the new jurisdictional gateways broadens the scope under which parties can obtain permission, in reality, this is unlikely to have a large impact on the number of successful applications or the costs of making such applications.

Even if the claim falls within one of the listed gateways, parties will still be required to show that there is a serious issue to be tried and that there is a good arguable case that the courts of England and Wales are the most appropriate forum in which to hear the dispute. As with any application made without notice, the applicant has a duty to give full and frank disclosure of all material facts. In reality, this is where much of the work and costs lies in such applications.

Service of other documents out of the jurisdiction

Prior to 1 October 2022, a party seeking to serve documents other than the claim form outside of the UK would usually have to seek permission. That was the case even where it had already sought permission to serve the claim form abroad (where the order granting permission was limited to the claim form) or where permission was not required to serve the claim form abroad. However, CPR 6.38 was introduced so that permission is no longer required to serve documents other than the claim form out of the jurisdiction where either:

1. the claim form has been served on the defendant out of the jurisdiction with permission, or
2. permission was not required to serve the claim form.

Arbitration claim forms

CPR 62.5 (2A) was also introduced from 1 October 2022 which enables an arbitration claim form falling within 62.5(1)(a)-(c) to be served out of the jurisdiction if:

1. the seat of the arbitration is or will be in England and Wales; and
2. the respondent is party to the arbitration agreement in question.

Future changes

The CPR Committee also considered whether a new gateway should be introduced for claims relating to cryptoassets, given the sharp rise in cases. The Law Commission recently announced that it would review the position on applicable law and jurisdiction in relation to digital assets and other international technology related disputes, such as those involving NFTs and smart legal contracts. A public consultation paper is due to be published by the Law Commission in the second half of 2023 and, as a result, the CPR Committee considered that it was appropriate to wait until the results of the Law Commission’s review have been published before addressing that issue. Further information, including Deloitte Legal’s view, on the scope of the Law Commission’s consultation paper and the interaction between the proposed new category of property rights arising from digital assets and existing property rights such as intellectual property can be found here: Cryptoassets and digital objects - our consultation response.

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