The circumstances in which English proceedings can be served on non-EU domiciled defendants who have no presence in England and Wales will be expanded significantly from 1 October, with the introduction of new “gateways” for service out of the jurisdiction at common law.
Probably the most important is the new general gateway which will enable claims against a defendant to be tried together in this jurisdiction where they are arise out of the same or closely connected facts, even if the further claim would not by itself fall within any gateway. There is also a new gateway for claims for breach of confidence or misuse of private information, where the relevant acts are committed and/or detriment is suffered within the jurisdiction. Various other gateways are expanded.
It is worth noting, however, that even where a claim falls within a relevant gateway the court will not grant permission to serve out unless it is satisfied that in all the circumstances England is clearly or distinctly the appropriate forum for resolution of the claim, and it is appropriate to exercise the court’s discretion to permit service out.
Where a claim does not fall within the Brussels regime (broadly, where the defendant is not domiciled in a Member State and there is no jurisdiction agreement in favour of an EU member state court) the English court applies common law rules to determine whether or not to exercise jurisdiction.
The starting point under the common law is whether the defendant can properly be served with proceedings. Where service within the jurisdiction is not possible, the claimant will need permission to serve proceedings on the defendant out of the jurisdiction. To obtain permission, the claimant must first establish a good arguable case that each claim comes within at least one of the gateways in CPR Practice Direction 6B paragraph 3.1.
The current expansion of the gateways arises out of the report of a Chancery Working Group established earlier this year to consider proposals made by the Lord Chancellor’s Advisory Committee on Private International Law, chaired by Lord Mance.
New general gateway
New gateway (4A) allows service out, with the permission of the court, where:
A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.
As can be seen from the wording, there are some circumstances in which the new gateway will not apply; it depends on which gateway has been relied on to establish jurisdiction over the main claim. So for example, it will not apply to permit further claims against a defendant who has been brought in as a necessary or proper party to a claim against another defendant.
The Chancery Working Group’s report notes the risk that new gateway (4A) might be considered exorbitant, but expresses the view that the risk is outweighed by the practical advantages of enabling closely related claims against the same defendant to be tried together. The report also notes the safeguard that, as with all gateways, permission is subject to the court’s discretion, as referred to above.
New gateway for breach of confidence claims
New gateway (21) applies where:
A claim is made for breach of confidence or misuse of private information where – (a) detriment was suffered, or will be suffered, within the jurisdiction; or (b) detriment which has been, or will be, suffered results from an act committed, or likely to be committed, within the jurisdiction.
The Chancery Working Group’s report notes that, in the case of Vidal-Hall v Google Inc EWCA Civ 311, the Court of Appeal found that claims for misuse of private information, but not breach of confidence, fell within the existing gateway for tort claims. This meant there was a need for the new gateway so far as claims for breach of confidence were concerned. It was arguable that, in light of Vidal-Hall, misuse of private information claims did not need to be included. However, it was possible the Supreme Court might take a different view on the issue, and if there was to be a new gateway for breach of confidence claims it made sense to deal explicitly with misuse of private information so as to make the position clear.
Expansion of other gateways
The expansion to various of the other existing gateways is indicated by the words in italics below:
(9) A claim is made in tort where – (a) damage was sustained, or will be sustained, within the jurisdiction; or (b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.
(11) The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.
(13) A claim is made for any remedy which might be obtained in proceedings for the administration of the estate of a person who died domiciled within the jurisdiction, or whose estate includes assets within the jurisdiction.
(15) A claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction.
(16) A claim is made for restitution where – (a) the defendant’s alleged liability arises out of acts committed within the jurisdiction; or (b) the enrichment is obtained within the jurisdiction; or (c) the claim is governed by the law of England and Wales.
New trust gateways
It is worth noting, in this context, that expanded gateways for trust claims were introduced from 6 April 2015, as a result of the recommendations of the Mance Committee. These new gateways allow service out, subject to the court’s permission, where a trust is governed by English law or provides for the jurisdiction of the English court.