Beware the pitfalls of serving claims abroad

District Judge Bill Vincent looks at the position when the client wishes to sue a defendant outside England and Wales

When the Civil Procedure Rules 1998 came into force on 26 April 1999, the old Rules of the Supreme Court (RSC) order 11 was retained with minor modifications, appearing in Schedule 1.

It provided a common regime for the High Court and county courts, the former County Court Rules (CCR) order 8 being dropped.

From 2 May 2000, RSC order 11 is itself replaced by a new second section to CPR order 6.

The provisions are re-drafted into easier English, but there is little change to the effect.

The part is supplemented by a new practice direction (PD6B) which replaces the former practice direction to RSC order 11.A free hitPermission is not required to serve a claim in Scotland, Northern Ireland or a 'Convention' country (the EC and EFTA countries: Austria, Belgium, Denmark, France, Finland, Germany, Gibraltar, Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland) if there are no existing proceedings in such a territory, the defendant is domiciled in such a territory (or one or two other rare circumstances apply) and the claim is one which nevertheless the court has power to determine.

Note that the Isle of Man and the Channel Islands are not Convention countries.

The claims which the court has power to determine are defined in the Conventions scheduled to the Civil Jurisdiction and Judgments Act 1982.

The two commonest examples will be contract claims where the obligation was to be performed in England or Wales, and tort claims where the wrongful act occurred here.The claim form must state the grounds on which it can be served abroad, that is, that the court has power to deal with it under the Act and that no proceedings based on the same claim are pending between the parties in Scotland, Northern Ireland or another Convention territory.

The actual words to use in various kinds of claim are given in PD6B, paragraph 1.

The defendant has added time to file an acknowledgement of service, defence or admission - usually an extra seven days.

If no acknowledgement of service is filed, default judgment cannot merely be requested.

It must be applied for (though there is no need to serve the application notice on the defendant).

The claimant will need to show that he was entitled to serve abroad without permission and that the claim has been properly served (see below).

Unless there seems to be a problem, the Master or District Judge will probably deal with the application without a hearing.By your leaveOtherwise, the claimant will have to apply for permission to serve abroad.

The application for permission need not be served, but must be supported by written evidence.

The grounds on which permission may be given are set out in rule 6.20.

If the claim can be brought within the rule, then the court has a discretion whether to give permission or not.

The evidence must identify the paragraph in rule 6.20 within which the claim falls, must confirm the claimant's belief that he has a reasonable prospect of success, and must give the defendant's address or at least the country where he is likely to be found.

If the defendant is in Scotland or Northern Ireland, it will be necessary to show why proceedings should not be brought in the courts of that jurisdiction.If permission is given, the order will specify the period (taken from the table in PD6B) within which the defendant must file any acknowledgement of service or defence, or file or serve any admission.

It may also impose conditions.

These may, for example, deal with questions of service and/or the entry of default judgment.

The rules themselves do not restrict entry of default judgment where permission has been given, unless the defendant is domiciled in Scotland, Northern Ireland or a Convention territory, is a State or diplomatic agent, or has immunity under the International Organisations Acts 1968 and 1981.

(Existing restrictions on entry of default judgment - for example, if the defendant is a child - do, of course, continue to apply.)ServiceWhatever else, the method of service adopted must be lawful within the country where it is effected.

For this reason, the court office will never simply post the claim form to the defendant.

Court staff have no way of knowing what method of service is lawful in another jurisdiction.Subject to that requirement, it is usually open to the claimant to arrange service himself.

Alternatively, he may request service through the appropriate authority if such an arrangement exists.

This is done by filing a request to that effect with a duplicate of the claim form (and the particulars of claim if not endorsed on the claim form), the 'response pack' (acknowledgement of service, defence and admission forms and relevant notes) and any necessary translations, together with an undertaking to meet the costs of effecting service.

For some countries, a formal letter of request (form 34) is also needed.

The court forwards these to the Senior Master's office, which makes the necessary arrangements.

This method cannot be used for service in Scotland, Northern Ireland, the Isle of Man, the Channel Islands or a Commonwealth country (other than Malta and Singapore, where it is the only method available).Translations are not generally required where service is to be on a British subject or in a country where English is an official language (it is not official in Quebec).

Where they are required, they must be in the official language of the country of service or, if there are more than one, the official language appropriate to the place of service.

The translation must be accompanied by a statement by the translator that it is correct, giving his name, address and qualifications.Second serviceSimilar considerations apply where a document other than a claim form has to be served abroad.

However, if the party is participating in the proceedings, he will have been required to give an address for service within England and Wales, so service abroad will rarely be necessary.Game, set and...

?Effecting service abroad of English (or Welsh) proceedings does not guarantee that they will in fact be determined here.

The defendant may apply for an order that the court here does not have jurisdiction or that, having jurisdiction, it should not as a matter of discretion exercise it.

This article is not the place to discuss matters of that kind.Once a judgment has been obtained, English (and Welsh) enforcement procedures will usually be effective only against assets in England and Wales.

To enforce against assets abroad, the creditor will need to obtain a certificate of judgment, then take whatever steps the local law abroad requires to register it in the courts there and to enforce it there.English solicitors, particularly those instructed to pursue debts which are not expected to be disputed, seem often to overlook the possibility that their clients may be better advised to issue in the court of the defendant's jurisdiction, thus avoiding the complications mentioned here and being able to move more swiftly to the enforcement of any judgment obtained.District Judge Bill Vincent sits at Worcester and Evesham County Courts