English law has many presumptions.

One of the more powerful is that legislation does not have any impact beyond UK jurisdiction or, more specifically, the physical limits of England and Wales.

In light of this, the thinking of the Court of Appeal in the case of Rolph v Zolan [1 993] Independent, 7 May and the way in which the House of Lords decision in Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506 is distinguished, call for examination.These two cases raised a similar issue, namely whether the court was properly seized of the case before it, service of process not having been effected personally on the defendant who was, at the time of service, neither within the realm nor within the jurisdiction of the courts of England and Wales.

In neither case had the plaintiff obtained leave to serve out of the jurisdiction the writ or process, which had purportedly been served by posting or letter box delivery.The essential difference between the two cases was that in Hahn the action was in the High Court, the sum claimed being £12 million and very substantial interest by the date of issue, and in Rolph v Zolan it was in the county court.

In the latter case, the plaintiff issued a county court summons against the defendant on 25 July 1991, shortly before the expiration of the limitation period.

The court then posted it to the defendant's last known address in England.

It was not returned through the dead letter box.

Instead, a friend collected the defendant's mail in September 1991 and posted it (including the summons) to him in Spain.

He had emigrated there in 1986 although he retained ownership of a house in England.The defendant took no step in the action until after a default judgment and a charging order had been obtained.

The prime question before the Court of Appeal was whether the deputy district judge (and subsequently the circuit judge by way of affirming that decision) had been right to set the judgment aside on the ground that it had not been served.In Hahn, the defendant was not and never had been resident in England or Wales although he used an address within the jurisdiction from time to time.

The plaintiffs chose to attempt service by inserting the writ through the letter box of that address.

They did so at a time when the defendant was not within the jurisdiction, although he came within it a few hours later.

The question each court had to decide was whether, as the defendant was not in the jurisdiction at the time the act of purported service had been effected, there had been valid service of the writ.As in Rolph v Zolan, in Hahn the Court of Appeal held there had been valid service of process and the defendant was accordingly subject to the jurisdiction of the court.

As a basic tenet of English law, the courts have no power over a defendant in any particular action or matter until the defendant has been served with the process (writ etc or county court summons).

Even an ex parte injunction is not an exception to this, as it does not bite until it and the originating process are served.

The Court of Appeal did not give Mr Hahn leave to appeal.

This was given by the appeals committee of the House of Lords.

The Lords called in the decision of the Court of Appeal as being possibly in need of correction and, in the event, did correct it.

The Court of Appeal had held that there had been valid service of the writ despite the fact that, as the Court of Appeal accepted factually, the defendant was at the time of service not within the jurisdiction.

The House of Lords ruled that for service under ord 10 of the Rules of the Supreme Court to be valid, the defendant had to be in the jurisdiction at the time of service.Superficially, the ratio decidendi of the House of Lords in Hahn is a mere interpretation of the relevant rule, RSC ord 10, r.1.

Hence it is not unreasonable for the dec ision in Rolph v Zolan itself to turn upon a mere interpretation of the county court rules, in particular ord 7, rr.1 and 10.Specifically, RSC ord 10, r.1(2), following the provision in para (1) that a writ must be served personally on each defendant by the plaintiff or his agent, provides that: 'A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served (a) by sending a copy of the writ by ordinary first-class post to the defendant at his usual or last known address or (b) if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.'The Court of Appeal had held that the words 'within the jurisdiction' qualified the words 'a writ' but the House of Lords held that they qualified 'a defendant'.

Accordingly, the Lords held that, for service under RSC ord 10, the defendant had to be within the jurisdiction at the time of service.Nowhere in ord 7, rr.1 and 10 of the County Court Rules are the qualifying words 'within the jurisdiction' or anything equivalent to them used.

On that basis, as it would appear that the presence within RSC ord 10 of those words qualifying 'the defendant' (that he or she must be in the jurisdiction for there to be valid service under RSC ord 10) was the nub of the Lords decision, it might be thought that the Court of Appeal decision in Rolph v Zolan is hard to fault.In this case the plaintiff had clearly issued a default summons, since he obtained judgment by default.

Accordingly, ord 7, r.10 is the relevant rule.

So far as is material it provides: '10(1).

Subject to the provisions of any Act or rule (including the following paragraphs of this rule), service of a summons shall be effected:(a) by the plaintiff delivering the summons to the defendant personally; or(b) by an officer of the court sending it by first-class post to the defendant at the address stated in the request for summons.(2) Unless the plaintiff or his solicitor otherwise requests, service shall be effected in accordance with para (1)(b).(3) Where a summons is served in accordance with para (1)(b), the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the day on which the summons was sent to the defendant.'A defendant not within the jurisdiction at any time within the seven days in question could and must be entitled to take advantage of the words 'unless the contrary is shown' to show that service was not then effected.

Further, a defendant not within the jurisdiction at any time after the date on which the summons was sent to him or her could rely on 'unless the contrary is shown' to satisfy the court that there has been no service at all, whether within the seven-day period or at any other time.However, the real ratio decidendi of the House of Lords went deeper than a mere interpretation of the rules.

What the House did was, in effect, to hold that on their true interpretation the rules have been correctly drafted in the light of the fundamental principle of English law which had been overlooked by the Court of Appeal, namely that the Queen's writ runs to the extremities of her realm, but no further.

The power of the Queen (now the Queen in Parliament) extends to all those within the jurisdiction but, with narrowly defined exceptions, she has no power over those beyond the seas unless and until they enter the realm and are served with process - the territoriality principle.In Hahn, the proposition put forward for Mr Hahn was accept ed by the House of Lords without qualification.

Lord Brightman summarised this as: 'The jurisdiction of the court to entertain an action in personam depended historically on the defendant being served personally with the King's writ.

When the Rules of the Supreme Court were amended in 1979 to permit "letter box service", it was not intended to alter the substantive jurisdictional requirement that the defendant be physically present within the jurisdiction at the time of service, but merely to provide an alternative to the procedural requirement that the defendant be handed the process personally.

Physical presence within the jurisdiction at the time of service remains an essential ingredient of valid service.'He went on to say that the approach of the Court of Appeal in Hahn 'would mean that a writ could validly be served under ord 10 on a defendant who had once had an address in England but had permanently left the country and settled elsewhere by inserting the copy writ through the letter box of his last address, provided that the plaintiff was able within seven days to communicate to the defendant the existence of the copy writ.

In such circumstances the plaintiff could properly depose that the copy writ would have come to the knowledge of the defendant within seven days after it was left in the letter box of his last known address.

This appears to outflank ord 11 (relating to service of process outside the jurisdiction) in every case where the defendant was formerly resident in this country and is capable of being contacted abroad within seven days.'In making these remarks, Lord Brightman was reflecting the extreme caution with which the courts trespass on the territoriality principle by means, in the High Court, of ord 11.The County Court Rules, like those of the Supreme Court, contain provision for the situation where the plaintiff desires to effect service out of the jurisdiction.

With the notable but understandable exceptions of the Civil Jurisdiction and Judgments Act 1982 and any other statute which specifically gives the courts in England and Wales jurisdiction, the leave of the court to serve a defendant who is out of the jurisdiction is necessary.

That must be so because the exercise of jurisdiction over a non-resident who is not even temporarily present in the jurisdiction at the time of service (and has thereby submitted him or herself to the jurisdiction of the Queen) is only to be invoked with great care and therefore only when judicial consideration has been given to establishing that one of the closely defined grounds giving rise to extra territorial jurisdiction has been stringently met.

Subject to the exceptions mentioned, extra territorial jurisdiction cannot be achieved by a mere procedural act such as posting to the last known address within England and Wales.In the county court, it is ord 8 which deals with service out of England and Wales.

Unlike RSC ord 10, r.1(2), even in ord 8 it is not possible to point to words which show that it is because the intended defendant is outside the jurisdiction that the provisions of ord 8 apply.

The words of ord 8 themselves allow for the interpretation that it is only if service is unable to be effected within the jurisdiction (wherever the defendant happens to be at the time) that service out of the jurisdiction comes into question and ord 8 applies.

In Rolph v Zolan, the Court of Appeal appears to have followed that line since it held there had been valid service within the jurisdiction, notwithstanding the fact that the defendant was not in the jurisdiction at the time of service or at any material time.

Accordingly, the Court of Appeal does not appear to have regarded ord 8 as being relevant to its consideration in the way that the House of Lords considered RSC ord 11 to be relevant in Hahn.

It is nevertheless material.

The intention of the rule was indeed to provide for the situation arising where the defendant, not otherwise amenable to the jurisdiction of the court by reason of one of the exceptions mentioned above, was not within the jurisdiction.

It is noteworthy that CCR ord 8 contains a provision equivalent to RSC ord 12, r.8, under which a defendant who has received process can object to the jurisdiction of the court.

Although there is no specific provision in the CCR to the effect that a defendant exercising that right is not to be regarded as thereby submitting to the jurisdiction of the court, this must be the intention of the rules (although they might stand revision to make that clear).

There is no equivalent provision in CCR ord 7.

This implies that those drafting the rules recognised that a non-resident purportedly served out of the jurisdiction could argue that the court had had no power to authorise service out, and might succeed in showing thereby that the court had no jurisdiction, but that a defendant served within the jurisdiction would not have any possibility of presenting such an argument.It would appear that the Court of Appeal, in deciding Rolph v Zolan in the way it did, must be regarded as outflanking the provisions of CCR ord 8 in precisely the manner Lord Brightman made clear was not available in principle.

The fact that the action was in the county court and not the High Court must make no difference to this principle.

This outflanking suggests the Court of Appeal fell into error.Further, by Rolph v Zolan the decision of the House of Lords in Hahn is itself outflanked.

The county court now has jurisdiction in matters of contract and tort without financial limit.

Any plaintiff faced with a Hahn situation (and not being able to rely upon the defendant's coming into the jurisdiction within seven days of letter boxing or perhaps at all) can therefore issue in a county court, effect service on the principle of Rolph v Zolan, and thereby vest the county court with jurisdiction.The absurdity of this situation is highlighted by applying to such an action in the county court the provisions of the High Court and County Courts Jurisdiction Order 1991 and directions issued under it.

Cases of substance and importance, with a guide-line trigger figure of £50,000, must normally be heard in the High Court.

The district judge should therefore, on pre-trial review in the county court in an action commenced there where the sum involved was by the date of issue £15 million inclusive of interest, transfer the action to the High Court.

However, bearing in mind the decision in Hahn, is this possible? In principle, Hahn had held that for the High Court to have jurisdiction, the defendant must have been in the jurisdiction when he or she was served.

Under Rolph v Zolan, it would appear to be that it is possible, since the district judge can and must transfer to the High Court any substantial case properly proceeding in the county court, and the case would be properly proceeding there as there had been valid service according to the County Court Rules as interpreted by the Court of Appeal.

The High Court itself would therefore be vested with jurisdiction in a situation which the House of Lords has held gives it no jurisdiction - where the defendant, not amenable to the jurisdiction of the courts otherwise than by service within the jurisdiction, has not been served while in the jurisdiction.The proposition has only to be stated to be seen to be wrong.

It follows that the decision in Rolph v Zolan must itself be mistaken.Just as consideration of historic legal principle shows that Rolph v Zolan is in error, history can explain how the decision was made.

When the county courts were created they were each given jurisdiction over a certain area.

The starting point was the jurisdiction of the Queen in Parliament, namely England and Wales, and all people therein from time to time.

This jurisdiction - it cannot have been any greater a jurisdiction - was 'hived down' within financial limits to the segments of the country known as county court districts.

The basis of the jurisdiction of the county court was power over those within the relevant county court district.

The present CCR ord 7, r.4(10) - 'Any process to be served or executed by the bailiff of any court may be served or executed within a distance of not more than 500 metres beyond the boundary of the district of that court,' - reflects this.Until the 1991 changes in the County Court Rules, introduced to enable justice to be achieved more smoothly in most instances in a county court action, it was necessary to show that the defendant lived or worked in the district.

To a material degree the territoriality principle was still being observed.

However, in 1991, all county courts were given jurisdiction over any matter - by necessary implication in so far as the Queen in Parliament had the power to give it, namely over any person on whom process was served when that person was in the jurisdiction or where one of the exceptions referred to above applies - wherever the defendant was.That implication, although unavoidable, was not expressed and the change therefore had the appearance of giving the county court jurisdiction without such limitation.

In Rolph v Zolan, the Court of Appeal allowed itself to be persuaded by this.The defendant in Rolph v Zolan is considering applying for leave to appeal to the House of Lords.

Unless and until an appeal is made successfully, if at all, or the decision is corrected by a change in the rules which it would appear should be done expeditiously in default of such an appeal, the law as laid down in Hahn can be circumvented by using the apparent greater territorial jurisdiction of the lower court, namely the county court, to give the High Court of Justice a jurisdiction it would not otherwise have.

Those plaintiffs starting actions for large sums of money in the county court should expect to be taken to the House of Lords for a ruling that Rolph v Zolan was wrongly decided