The claimants served their claim form on the Dutch defendant company without the court's permission. CPR r6.33 provides that permission from the court is not required to serve a defendant in a Member State provided that there are no proceedings between the parties concerning the same claim pending in the courts of another Member State. There were proceedings already pending between the parties in Germany (but there was an issue as to whether they involved the same claim).

CPR r6.34 requires the claimant to file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve out of the jurisdiction (this is done on Form N510). The claimant's solicitor had signed the statement of truth in the form, verifying that "the claimant believes that the facts stated in this notice are true". The defendant sought to set aside service on the basis that the solicitor had had no reasonable grounds for his belief (relying on a statement by Gloster J in National Navigation v Endesa (see Weekly Update 13/09) that "it is very important in cases said to fall under the Regulation…that solicitors issuing proceedings take particular care to ensure that they have a reasonable basis for their belief").

Mann J rejected the argument that the state of mind of the person signing the notice is relevant. The conditions of CPR r6.33 "are either fulfilled or they are not". Gloster J had been dealing with a different point as she had already found that the English court did not have jurisdiction on the established facts. Her remarks had only been intended to demonstrate that a claimant who signs without a proper evidential basis will engage the court's disapproval when it comes to costs.