The Dekagram: 12th February 2024

Articles, News | Mon 12th Feb, 2024

Service and Jurisdiction: Lunn v Antarctic Logistics Centre International [2023] EWHC 2856 (KB)

In a recent case it fell to Master Thornett to apply the rules on extension of time for service and for challenging jurisdiction, albeit in an unusual factual context.

The facts

The claim arose out of an accident at work involving an English claimant employed by a Maltese company at an air base in Antarctica managed by a South African entity. The accident happened when Mr Lunn was thrown from a mobile set of stairs accessing an aircraft owing to the engine thrust from a passing aircraft taxiing very nearby.

By way of a claim form sealed on 10^th February 2021 proceedings were issued against five defendant companies, all of whose addresses for service were out of the jurisdiction. In the conventional way in the Kings Bench Division, upon issue the claim form was marked “Not for Service Out of the Jurisdiction” . In the event the Claimant pursued only one Defendant, the company based in South Africa.

In the usual way, on 15^th July 2021 the Claimant applied for permission to serve the claim out of the jurisdiction and for an extension of time for service of the claim form; on 3^rd August 2021 Master Thornett granted the applications, and on 24^th January 2023 a further extension was granted to 29^th July 2023.

In the event the Defendant was served with proceedings on 24^th August 2022, although it was not served with the witness statement relied upon by the Claimant in support of his application for permission to serve outside the jurisdiction and for an extension of time. It acknowledged service and indicated its intention to challenge jurisdiction, subsequently applying to set aside the service of proceedings and mount a jurisdictional challenge on the grounds that the claim did not pass through the tort gateway and that England and Wales was not the appropriate forum in which to bring the claim.

There followed much procedural wrangling, but the main question before the court boiled down to this: where a claim form has been marked ‘not for service out of the jurisdiction’, does this mean that it is valid for four months rather than (potentially) six months, and if the former, does this mean that any application for a prospective extension of time should be made within four and not six months?

The rules

Practitioners undertaking cross border work will be aware that whilst pursuant to CPR Part 7.5(1) a claim form which is to be served within the jurisdiction must be served within four months, pursuant to CPR Part 7.5(2) a claim form which is to be served outside the jurisdiction must be served within six months. The distinction is of critical importance where an extension of time for service is sought pursuant to CPR Part 7.6 because where the application is made within the lifetime of the claim form the court has an unfettered discretion to consider it, whereas where it is made after the expiry of the claim form, the claimant must show that (s)he has taken all reasonable steps to serve but has been unable to do so.

Hence the Defendant’s clever wheeze in this case – if the fact that the claim form was marked ‘not for service out of the jurisdiction’ meant that it was only valid for four months, notwithstanding that the Defendant was located and would have to be served abroad, the Claimant’s application for an extension of time for service had to be considered under the harsher retrospective regime set out in CPR Part 7.6(3) and was therefore less likely to succeed.

The decision

The problem with the Defendant’s ingenious argument was that it was entirely inconsistent with the decision of the Court of appeal in Anderton v Clywd CC [2002] EWCA Civ 933, in which Mummery LJ held:

“97. Our conclusion on the construction of the relevant provisions of the CPR is that, on their natural and ordinary meaning, the discretion to grant permission to serve a claim form out of the jurisdiction is not subject to any express or implied requirement or condition

1) that the application must be made before the end of the period of 4 months from the issue of a claim form marked “not for service out of the jurisdiction”; or that

2) different discretionary criteria apply to an application for such permission made after the end of the period of 4 months from the issue of the claim form than apply to an application made within that period ; or that

3) the criteria set out in rule 7.6(3) apply directly or indirectly to the exercise of the discretion, whether the application is made before or after the end of the period of 4 months from the issue of such a claim form.

98.  The relevant provisions governing permission to serve a claim form out of the jurisdiction are in the “Special Provisions” in Section III of Part 6 (see also rule 6.5(1) ), not in the general provisions in Part 7 , save for the time for service of the claim form out of the jurisdiction in 7.5(3), as to which no extension of time was required, as the 6 month period for such service had not expired. In those circumstances it would require clear words to restrict, in the manner contended for by Mr Young, the exercise of the discretion to grant permission to serve the claim form out of the jurisdiction. There are no such restrictive words in Part 6 or Part 7 CPR nor are there any strong contextual indicators that the discretion was intended to be so circumscribed…”

Master Thornett was therefore bound to conclude that:

“In this case, the Claim Form has always been from the time of issue proposed to be served on defendants out of the jurisdiction. There is no dual character or choice as to addresses within or without…It is, in terms of the rule 7.5(2) distinction, a claim to be served out of the jurisdiction. I am satisfied that that case provides no support for the proposition that marking “Not for Service out of the jurisdiction” is anything more (nor indeed anything less) than procedural confirmation that permission of the court will still be required because grounds of entitlement to serve out of the jurisdiction had not been presented at issue, per CPR 6.34.”

The Defendant’s application to set aside the order allowing for an extension of time for service of the claim form was therefore dismissed.

But that was not the end of it.

The Defendant wished to challenge the jurisdiction of the court, but had not done so within the strict time constraints set out in CPR Part 11. The Claimant therefore submitted that it had missed its chance to contest jurisdiction. Not so, the Defendant said – the original order extending time for service and allowing for service outside the jurisdiction had not specified the time within which the Defendant was required to file and serve an Acknowledgement of Service, and that being the case, the 14 day period specified in CPR Part 11 had not begun to run.

The Defendant was right; the order had been defective by reason of CPR Part 6.37(5) in that it had not specified the appropriate period within which the Defendant was required to respond to the proceedings. As a result, it was defective and time under CPR Part 11 did not begin to run. As a consequence,  it was open to the Defendant to challenge jurisdiction on the grounds that the tort gateway was not open to the Claimant and that England and Wales was not the appropriate forum for the claim.

Conclusion

As well as raising the kind of jurisdictional and applicable law questions that keep cross border lawyers up at night, the Lunn case illustrates that in every application for permission to serve outside the jurisdiction or to extend time for service it is of critical importance to take a deep breath and reread the rules. No matter how many times you’ve made similar applications, it is crucially important to remember the less fretted about aspects – the witness statement in support must state the address of the Defendant, for example; the order must give a time for acknowledgement of proceedings (in accordance with the table to be found at the end of Part 6); consideration must be given to whether the address given for the Defendant on the claim form is outside the jurisdiction, and if so whether an alternative address is also given (this being fatal to the Anderton point).

As always, and rather irritatingly, there is no substitute for reading the rules.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.