This blog post, written by Kristina Lukacova of Monckton Chambers, explores the rules on service out of the jurisdiction after 31 December 2020.
UPDATE: Since the publication of this blog post, Reg.9(3) of The Civil, Criminal and Family Justice (Amendment) (EU Exit) Regulations 2020 (laid before Parliament on 10 December 2020) has introduced a savings provision which allows Brussels Regulation (recast) claims issued (but not served) before 31 December 2020 to be served out of the jurisdiction under the old rules, i.e. without permission. This is the previously missing savings provision discussed below.
The position until 31 December 2020
Until 31 December 2020, if the English court has jurisdiction to hear a claim under the Brussels Regulation (recast), the claimant does not need permission to serve the claim form out of the UK (CPR rule 6.33(2)).
The position after 31 December 2020
The position after 31 December 2020 is, as ever, uncertain. However, in the absence of further developments, at 11pm on 31 December 2020, The Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019 (“the CPR (EU Exit) Regulations”) will come into force.
One of the effects of the CPR (EU Exit) Regulations will be to remove the service out exception based on the Brussels Regulation (recast) from rule 6.33(2), replacing it with limited exceptions for claims by consumers and employees under the new sections 15A-15E of the Civil Jurisdictions and Judgments Act 1982.
Accordingly, from 1 January 2021, unless a claim falls under one of the surviving exceptions set out in rules 6.32 – 6.33, the claimant will need to apply for permission to serve out of the jurisdiction under rule 6.36 and to satisfy the court that:
- there is a good arguable case that the claim falls within or more of the grounds of jurisdiction under paragraph 3.1 of Practice Direction 6B (“Paragraph 3.1”);
- there is a serious issue to be tried on the merits of the case; and
- in all the circumstances, England is clearly or distinctly the appropriate forum for the trial of the dispute, and the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.
At the moment, the main exception to survive the CPR (EU Exit) Regulations is set out in rule 6.33(2B), concerning the 2005 Hague Convention on Choice of Court Agreements (“the 2005 Hague Convention”). The scope of the 2005 Hague Convention is relatively limited: it only applies to exclusive jurisdiction agreements entered into after the 2005 Hague Convention came into force for the State of the chosen court.
In the UK’s view, the 2005 Hague Convention came into force on 1 October 2015, the date of the UK’s initial accession (see paragraph 7 of Schedule 5 of the Private International Law (Implementation of Agreements) Bill). In the European Commission’s view, the relevant date is that of the UK’s re-accession in its own right, i.e. 1 January 2021 (see section 3.3 of the Notice to Stakeholders dated 27 August 2020).
On any view, the proportion of claims which require permission to serve out will increase substantially once rule 6.33(2) ceases to apply.
The missing savings provision
The problem with the amendments to rule 6.33(2) is that they will come into force on 31 December 2021, while the Brussels Regulation (recast) will continue to apply to claims issued before the end of 31 December 2020 (see Article 67(1)(a) of the Withdrawal Agreement 2020). In relation to such leftover Brussels Regulation (recast) claims, from 1 January 2021, a claimant who has issued (but not served) a claim covered by the Brussels Regulation (recast) may need to apply for permission to serve out under rule 6.36.
The rules and principles in relation to permission to serve out, such as the requirement to establish that England is the appropriate forum, are ill-equipped to deal with claims to which the Brussels Regulation (recast) applies. If the English court has jurisdiction under Brussels Regulation (recast), that ought to be the end of it, without any further enquiry as to the appropriateness of the forum. Perhaps the courts will hold that England is clearly and distinctly the appropriate forum where a claim falls under the Brussels Regulation (recast), but the territory is unchartered and the uncertainty unfortunate.
Similarly, it is not appropriate to require a claimant relying on the Brussels Regulation (recast) to identify a further ground of jurisdiction under Paragraph 3.1. There is no Brussels Regulation (recast) gateway in Paragraph 3.1; given rule 6.33(2), there was never any need for one. Having identified the relevant ground under the Brussels Regulation (recast), the claimant will therefore need to identify a further, parallel, ground under Paragraph 3.1.
This may not be too taxing an exercise in some cases, but it may be tricky in others, and there will not necessarily be a Paragraph 3.1 gateway for every claim over which the English courts have jurisdiction under the Brussels Regulation (recast). Further, even if there happens to be a corresponding ground, it is cumbersome and inefficient for a claimant to have to rely on two parallel sets of grounds of jurisdiction.
A more satisfactory approach would have been to provide for the continued application of rule 6.33(2) to claims issued before 1 January 2021. This would have been relatively easy to achieve: Regulation 18 of the CPR (EU Exit) Regulations already includes a number of savings provisions in relation to Part 6 of the CPR.
The CPR (EU Exit) Regulations have not yet come into force, and might be amended before 31 December 2020. However, for the time being, claimants who have issued or intend to issue a claim before 31 December 2020 to benefit from the continuing application of the Brussels Regulation (recast) may want to serve their claim before the end of the year, where possible, unless they are confident that it falls within rule 6.33(2B).
Choice of court agreements: agreed proposal for service out without permission
It appears that the impact of the missing savings provision will be partially reduced by a further amendment to the CPR. At a meeting held on Friday 9th October 2020, the Civil Procedure Rule Committee agreed that the rules in relation to service out should be amended so that permission is not required where a claimant is seeking to rely upon an England & Wales choice of court agreement where the 2005 Hague Convention does not apply.
The recommendation was proposed by the Lord Chancellor’s Advisory Committee on Private International Law. The proposal was to remove gateway 3.1(6)(d) from Practice Direction 6B, and to introduce a new rule, 6.33(2C), allowing service out without permission of the court where the claimant relies upon a choice of court agreement in favour of the courts of England & Wales.
The proposed changes were agreed, subject to final drafting. This is a welcome development which will streamline the commencement of proceedings based on choice of court agreements.
What if the UK re-accedes to the Lugano Convention?
The UK’s application to re-accede to the Lugano Convention as an individual member has been discussed here and here. The outcome of the application remains uncertain.
However, given the absence of unanimous agreement by all contracting parties by 1 October 2020, even if the UK re-accedes to the Lugano Convention in due course, the Lugano Convention will not have (re-)entered into force by 1 January 2021. This is due to the three-month lag between the deposit of the instrument of accession and the coming into force of the Lugano Convention (Article 72(4)).
Accordingly, while the possibility of re-accession to the Lugano Convention remains on the cards, it is unlikely to make a difference to the procedural rules as at 1 January 2021.
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