Serving Foreign Proceedings in England and Contesting Service

In order to serve foreign proceedings in England service has to be effected in England in accordance with the English rules governing service. This means one of the following: - 

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(a) personal service;

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(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;

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(c) leaving it at a place specified in the rules; 

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(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or

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(e) any method authorised by the court under rule 6.15.

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The place for service is specified in the CPR as follows, ​

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1. the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings;
2. Service upon the defendant’s solicitor by prior agreement, and there is a specific mechanism in the Rules on how to serve the Crown.

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The Rules also provide on for service of the claim form where the defendant does not give an address at which the defendant may be served, as set out below.

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Nature of defendant to be served - Place of service

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1. Individual - Usual or last known residence.

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2. Individual being sued in the name of a business - Usual or last known residence of the individual; or principal or last known place of business.

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3. Individual being sued in the business name of a partnership - Usual or last known residence of the individual; or principal or last known place of business of the partnership.

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4. Limited liability partnership - Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.

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5. Corporation (other than a company) incorporated in England and Wales - Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

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6. Company registered in England and Wales - Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.

7. Any other company or corporation - Any place within the jurisdiction where the corporation carries on its activities; orany place of business of the company within the jurisdiction.

Where a claimant has reason to believe that the address of the defendant referred to above is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).    

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Where, having taken those reasonable steps ), the claimant –

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(a) ascertains the defendant’s current address, the claim form must be served at that address; or

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(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

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(i) an alternative place where; or

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(ii) an alternative method by which, service may be effected.

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1. The notes to the Civil procedure rules at 6.9.3 state, 

The table in para.(2) of r.6.9 describes “place” of service in various ways; viz., “residence”, “place of business”, “principal office”, and “place where corporation carries on activities”. In some instances, qualifications are added: thus, for example, “usual or last known” residence, and “principal or last known” place of business or place of business having “a real connection with the claim”. Obviously, such places have “addresses”, but no mention is made of this in the table. 

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The rule contains no guidance in relation to such concepts as “usual or last known residence” presumably because they are fact specific. 

Guidance as to the proper approach can be gained from Relfo Ltd (In Liquidation) v Varsani [2009] EWHC 2297 (Ch). In that case the claim form was not served personally on the defendant but on his father at an address in London which was owned by the defendant and his wife and occupied by his wife and family. One of the grounds on which the defendant challenged the validity of service was that notwithstanding the ownership and occupation of the property, he worked and resided in Kenya and spent no more than a small fraction of his time at the property. On the evidence, the family were united but the defendant had to work in Kenya and spent a month a year in the property on holiday. The deputy High Court Judge held the service valid and found that the quality of his use of the property was as a home and the fact that his immediate and wider family lived there was also a factor of relevance. 

He distinguished the case of Cherney v Deripaska [2007] EWHC 965 (Comm); [2007] 2 All E.R. (Comm) 785 and OJSC Oil Co Yugraneft v Abramovich [2008] EWHC 2613 (Comm) on the basis that it was dangerous to apply the conclusion reached in cases where extremely wealthy businessmen who owned and used extremely valuable property in the jurisdiction were not resident, in cases in which persons owned houses in the jurisdiction and occupied them for only a part of the year. 

The term “usual residence” meant that which was in ordinary use. A person who had more than one residence could have more than one “last known residence”. On appeal ([2010] EWCA Civ 560) the Court of Appeal found that the critical test is of the addressee’s pattern of life, citing Levene v Commissioners of Inland Revenue [1928] A.C. 217. 

This rule proceeds on the assumption that the claimant has knowledge of the “place” at which the claim form may be left or to which it may be posted. If the claimant (for example) wishes to serve the claim form on an individual defendant, and they have no knowledge of the defendant’s “usual” or “last known” residence, the rule does not avail them. 

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Where a claimant serves a claim form on an individual defendant, it will normally be the case that the claimant will know, or at least believe, that the address at which it is left or to which it is posted, is the address of the defendant’s usual or last known residence or principal or last known place of business (as the case may be). In those circumstances, provided the claim form is dispatched for service within the time limits fixed by r.7.5, the normal consequences of good service then follow. The service cannot be impugned by the defendant’s showing that, nevertheless, the claim form did not come to their knowledge. Whether any judgment or order regularly obtained by the claimant following such service should be set aside on the ground of the defendant’s lack of such knowledge is a different matter. 

The question of whether the claim form was served at the defendant’s “usual”, or “last known” residence or the “principal” or “last known” place of their business, is separate from the question of whether the claim form came to their notice (actually or constructively). Modern cases raising the first question include: Marshall v Maggs [2006] EWCA Civ 20; [2006] 1 W.L.R. 1945, CA (service not effected where claim form posted to an address at which, contrary to the claimant’s belief, the defendant had never resided); O’Hara v McDougal [2005] EWCA Civ 1623, November 22, 2005, unrep., CA (service not effected where claim form served at an address that was not the defendant’s place of business); Lexi Holdings Plc v Luqman, October 22, 2007, unrep. (service not effected at defendant’s residence where, at time during which defendant serving substantial term in prison, claim form served at residence occupied by defendant beforehand). 

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The appropriate place will turn on the nature of the defendant to be served; for example, where the defendant is an individual, his or her “usual or last known address”, or where being sued in the name of a business, the “principal or last known place of business”. Where the place to which the claim form is sent is an address within the jurisdiction then, obviously, the service is effected at a place within the jurisdiction. The question has arisen whether the service is valid if, at the time it is so effected at the address of a defendant resident within the jurisdiction, the defendant is absent from the jurisdiction because abroad on a business trip, or a holiday, or (by withdrawing temporarily or indefinitely) to avoid service. 

The relevant Court of Appeal authorities are City & Country Properties Ltd v Kamali [2006] EWCA Civ 1879; [2007] 1 W.L.R. 1219, CA; SSL International plc v TTK LIG Ltd [2011] EWCA Civ 1170; [2012] 1 W.L.R. 1842, CA; they were reviewed and applied in the context of service of documents other than claim forms (in particular, witness summonses) in Clavis Liberty Fund 1 LP v Young [2015] UKUT 72 (TCC); [2015] 1 W.L.R. 2949 (Warren J) at paras 26 to 32; and Libyan Investment Authority v Société Générale [2017] EWHC 781 (Comm), 6 April 2017, unrep. (Teare J) at paras 57 to 67. The principle that a defendant may be served with originating process within the jurisdiction only if he or she is “present in the jurisdiction” at the time is deeply embedded in English law (Chellaram v Chellaram (No.2) [2002] 3 All E.R. 17 (Lawrence Collins J) at para.47). 

The problem is that of reconciling that principle with the development of rules permitting service by post within the jurisdiction. The prevailing opinion seems to be that a defendant “resident” in the jurisdiction is “subject” to the jurisdiction and therefore “present” in the jurisdiction. 

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Even if the Defendant received a copy of the Summons and Complaint, as a matter of English law, that is not good service – see the case of Capital Alternatives Sales and Marketing Limited (In Liquidation), Green Planet Investment Limited (In Liquidation), David Anthony Ingram (as Liquidator of Capital Alternatives Sales and Marketing Limited and Green Planet Investment Limited) v Vitoria Nabas, Nabas International Lawyers LLP, Cubism Limited, Corinthian Trust Company Limited [2018] EWHC 3345 (Comm), in which His Honour Judge Klein Sitting as a Judge of the High Court stated,

“43 The parties accepted, at the hearing, that the determination of (i) whether or not a claim form was left for the First Defendant on 19 June, at any location, for the purpose of section 1140 , and (ii)whether or not the claim form was served (or purportedly) served, on that day, by a method permitted by CPR r.6.3(1)(c) (by leaving it for the First Defendant), require the court to answer the same question; namely, whether, assessed objectively, a claim form was left for the First Defendant on that day. Because the assessment is objective, what (i) the Claimants thought they were doing or what they intended to do and (ii) the First Defendant thought the Claimants were doing, is not relevant. In this context, the parties relied on Asia Pacific (HK) Ltd. v. Hanjin Shipping Co. Ltd. [2005] EWHC 2443 (Comm) , where Christopher Clarke J said, at [19]: 

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"The first question, therefore, is whether what happened on 21 March amounts to service. That question must — as is common ground — be judged objectively, that is to say by looking at what was done and said by and as between the parties in order to determine whether it amounts to service. If it does so, an unexpressed intention that it should not do so cannot alter the position. If it does not do so, the fact that the person who did the acts in question intended or thought that what he did constituted service does not make it so. Whether service has been effected cannot depend upon the views, possibly idiosyncratic or even bizarre, of individual litigants or their advisors."

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“66 In the light of the conclusions I have already reached, I must inevitably conclude that the Claimants did not take any steps, on 19 June, to bring the claim form to the First Defendant's attention on that day, even if, because of the events which happened, the claim form actually came to her attention.”

The principle that a defendant may be served with originating process within the jurisdiction only if he or she is “present in the jurisdiction” at the time is deeply embedded in English law (Chellaram v Chellaram (No.2) [2002] 3 All E.R. 17 (Lawrence Collins J) at para.47). English law provides clear mechanisms for service of proceedings on persons outside the jurisdiction.

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As can be seen above, great care must be taken in effecting service of foreign proceedings in England. Given the technical requirements for good service, it is often possible to challenge whether service has been effected properly. Also, if service has not been properly effected, a resulting judgment may not be enforceable in England. Also , it may be susceptible to challenge in the English or foreign court and there is another possibility of dealing with such service, which may be appropriate in certain cases. Advice should be taken before effecting service in England from an English lawyer. If someone is served with foreign proceedings in England it is worth taking advice on whether service was effected properly, before taking any steps in the proceedings which might prejudice an argument about service or jurisdiction. Such advice needs to be taken promptly.