With the prevalence of international trade, there is a growing number of claimants entering into litigation and disputes with Defendants based overseas. Nevertheless, there are a number of difficulties that may arise as a consequence of a Defendant’s location. Serving the Claim Form in the first place can be one such issue.
The Civil Procedure Rules 1998 (“CPR”) govern the conduct of litigation in the Courts of England and Wales. Part 6 of those rules deals with permitted methods for service of the Claim Form, both within and outside the jurisdiction. The rules provide that service outside the UK is permissible by any method set out in a number of specified European Regulations and international treaties and conventions or “by any other method permitted by the law of the country in which it is to be served.”
In the recent case of Bacon v Automattic Inc and Others, the question came before the High Court as to whether it had jurisdiction to permit service of a Claim Form out of the jurisdiction by email.
In that case, the Claimant had issued proceedings against three Defendants who were all domiciled in the USA. The Claimant sought an Order requiring the Defendants to disclose details of individuals responsible for publishing statements that the Claimant considered were defamatory. The Claimant applied for permission to serve the Claim Form by email at addresses previously provided by the Defendants.
In his judgment, Tugendhat J noted that service out of the jurisdiction by an alternative method had been the subject of conflicting views in previous cases. However, Tugendhat J held that service could be affected by alternative means because CPR 6.15 gives the Court discretion “where it appears … that there is good reason to authorise service by a method or at a place not otherwise permitted by this Part,” to “make an order permitting service by an alternative method or at an alternative place.”
Finding that service out of the jurisdiction could be affected by alternative means, the judge agreed with the Claimant’s submissions that a comparison could be drawn with the permissible methods for service within the jurisdiction set out in CPR 6.3(1)(d), the effect of which is that service in the jurisdiction can be affected by email provided the party who is to receive service has indicated in writing to the serving party that he is willing to accept service by email and has provided an email address at which he can be served.
Having held therefore that he could order service upon the Defendants in the USA at the email addresses provided, the judge went on to say: “in future Claimants should put before the Court evidence as to whether that method is permitted by the law of the Country in which the Claim Form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary”
Parties wishing to serve legal documents by email will, in the first instance, need to confirm whether it is permissible to do so under the laws of the country in which service is to be affected. If it is, then they will be permitted to serve English proceedings by email under CPR 6.40(3)(c).
If it is not permissible under the laws of the relevant country then, where the Claimant can show there is good reason to do so, it will be possible for the Claimant to obtain a Court Order permitting overseas service by email.
Contracting parties may therefore wish to insist on their counter party providing an email address and to include an express provision in their contract (perhaps by including it within their standard terms and conditions) that their counter party agrees to accept service of legal documents at the email address they have provided.
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