Service of a Claim Form Out of the Jurisdiction in an EU Member State—Is Permission Required?

8 April 2021
View Debevoise In Depth

This Debevoise In Depth provides an overview of changes to the rules on serving a claim form in civil proceedings before the Courts of England and Wales on an entity in an EU Member State.

  • Prior to 1 January 2021, before the end of the Brexit implementation period, certain jurisdiction regimes gave the Courts of England and Wales jurisdiction in specified circumstances if a defendant was outside of England and Wales. These regimes were found in Chapter II of the Recast Brussels Regulation and Title II of the 2007 Lugano Convention.
  • From 1 January 2021, these regimes no longer apply in the UK. The result is that where a claim form has been neither issued nor served prior to that date, permission from the English Court is required to serve English proceedings outside the jurisdiction on an entity in an EU Member State, subject to certain exceptions.
    • First, where the parties have an exclusive choice of court agreement in favour of the Courts of England and Wales, and that agreement falls within the requirements of the Hague Convention on Choice of Court Agreements (the “Hague Convention”).
    • Second, where there is a contractual jurisdiction agreement between the parties in favour of the Courts of England and Wales, irrespective of whether that agreement falls within the requirements of the Hague Convention.
  • Despite these exceptions, the need to apply to the Court for permission will still arise more frequently than it did before 1 January 2021. Applying for permission is burdensome, and increases the risk permission will be denied at an early stage. Care needs to be taken to ensure the application is made properly, and advice should be sought accordingly.
  • Even if permission is not required, the process for effecting service may well differ from how it was prior to 1 January 2021. This is because from 1 January 2021, Regulation (EC) 1393/2007 (the “Service Regulation”) no longer applies in the UK. Service from England into an EU Member State needs to be effected under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”). Legal advice should be sought promptly to reduce the chances of the defendant successfully challenging service.