Service within the jurisdiction and whether a foreign company had a place in England “where it carries on its activities”
The claimant failed to effect personal service of the claim form on the defendant. Prior to the expiry of the 4 month period for service of the claim form, a photocopy of the claim form (and no response pack) was delivered by post and email to the defendant’s solicitors. 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 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 was a company incorporated in Papua New Guinea. The claimant sought to argue that it “carried on activities” in England via its agent (FDL) based near Gatwick Airport.
Counsel had informed the judge that there was no prior case law 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 “[w] hile 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” (paragraph 50). On the facts of the case, the judge found that the requirements of CPR r6.9 were not satisfied. 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. Further, 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.