Service within the jurisdiction and whether a foreign company had a place in England "where it carries on its activities"
Clyde & Co acted for the defendant in this case.
Where a defendant has not given an address for service (and no business address of a lawyer in the EEA has been given), CPR r6.9 provides (in relevant part) that service must be made (where the company is not incorporated or registered in England and Wales) at "any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction". If there is no such place, service must be made out of the jurisdiction.
The defendant in this case is a company incorporated under the laws of Papua New Guinea. The claimant sought to argue that it "carried on activities" in England via its agent (FDL) which is based near Gatwick Airport.
Counsel had informed the judge that there is no prior caselaw on the meaning of "carries on its activities" in the context of CPR r6.9. The judge therefore sought to decide whether the activities of FDL were the defendant's activities, noting that "While an agent may bind his principal, it by no means follows that the business of the agent can be described as that of the principal. An agent need not be an agent for only one principal, but may be an agent for many".
On the facts of the case, the judge found that the requirements of CPR r6.9 were not satisfied here. The most important factor was to look at context. Here, FDL worked for several principals and was limited in its ability to enter into contracts and deprived of any realistic discretion in terms of pricing or contractual terms. Other factors militating against the claimant's arguments included the fact that the defendant exercised little control over the running of FDL and made no contributions to the financing of FDL's business.
Accordingly, the defendant had to be served out of the jurisdiction.