Cross-border probate, trust and insolvency disputes often become procedurally unstable long before the parties get anywhere near the merits of the dispute. The problem is usually not that the law is any more obscure in cross-border matters but that lawyers can move too quickly to mechanical points such as how to serve, where to serve, or whether a document came to the defendant’s attention, without first asking the more fundamental questions:
“Is this in fact a case where service out is required, and if so, on what basis?“
These questions matter because service out of the jurisdiction is not just an administrative step. It is the process by which the English courts assert jurisdiction over a person outside the territory. That extra-territoriality requires legal justification. If these foundations are wrong, everything built on top of them becomes vulnerable.
Service & Jurisdiction
It is important at this stage to distinguish between jurisdiction and service, as the two are often conflated in practice.
- Jurisdiction is the court’s adjudicatory competence.
- Service is the procedural mechanism by which notice is given and by which the court’s jurisdiction is engaged in practice.
The two are linked, but they are not the same thing. A practitioner who treats service rules as though they themselves create jurisdiction is already on the wrong track.
Serving Out of the Jurisdiction?
Before asking whether permission is needed to serve out, a practitioner should be asking whether the claim in which they act is a service out case at all. Sometimes it will be. Sometimes it will not. There may be a valid route to service within the jurisdiction or by an agreed mechanism.
That “alternative to service out” stage matters more than people assume, and can save a lot of cost and stress. With a view to the wide variety of claims seen by the Courts, there may be:
- a contractual service clause between the parties under CPR 6.11;
- service on an overseas company carrying on business within the jurisdiction;
- service on an agent of an overseas principal under CPR 6.12; and/or
- a Companies Act 2006 route to service.
Those possibilities have to be worked through before anyone rushes into service out analysis.
Companies Act 2006
Whilst dealing with all of the myriad possible alternatives is beyond this article, the Companies Act 2006 routes are of particular note. Service on a company may be effected under either the CPR or the Companies Act 2006, and a claimant may be able to rely on whichever route is available and advantageous. Sections 1139 and 1140 of the Companies Act 2006 can therefore matter greatly at the outset.
Section 1140 deserves special mention. It permits service on a director or secretary at the registered address, and the statutory language is not confined to documents served on that person in a corporate office holder capacity. Sections 1140 (1) and (3) expressly provide:
“1140 – Service of documents on directors, secretaries and others
(1) A document may be served on a person to whom this section applies by leaving it at, or sending it by post to, the person’s registered address.
…
(3) This section applies whatever the purpose of the document in question.”
Practitioners can drift into assuming that a foreign-resident defendant necessarily generates a service out problem, when in truth there may already be a valid domestic statutory route to service.
No Permission Routes
After exhausting the domestic service routes, the next question is whether permission is needed at all.
CPR 6.32 and 6.33 create important no permission routes. CPR 6.32 deals with certain claims in Scotland and Northern Ireland. CPR 6.33 deals with certain claims outside the United Kingdom, including claims within the Civil Jurisdiction and Judgments Act 1982 regime and claims within the 2005 Hague Convention choice of court regime. In those cases[ii], the claimant does not seek advance permission, but must still identify the legal basis for serving out and comply with CPR 6.34 by filing and serving a notice stating the grounds relied on. PD 6B para 2.1 adds the practical requirement to file Form N510 with the claim form.
The distinction between no permission and permission cases matters because it changes the whole posture of the case. A claimant who is truly within CPR 6.32 or 6.33 is not asking the court to authorise the claim to cross the border. A claimant under CPR 6.36 (as to which, more below) is. Practitioners therefore need to ask, very early, whether they are genuinely within a no permission route or whether they have simply assumed one. If the assumption is wrong, the entire service exercise may unravel.
The language of CPR 6.34, which says:
“6.34
(1) Where the claimant intends to serve a claim form on a defendant under rule 6.32 or 6.33, the claimant must –
(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction; and
(b) serve a copy of that notice with the claim form.
(2) Where the claimant fails to file with the claim form a copy of the notice referred to in paragraph (1)(a), the claim form may only be served –
(a) once the claimant files the notice; or
(b) if the court gives permission.”
underlines that failing to file Form N510 is not harmless technicality. Indeed, Robertson v Google LLC [2025] EWCA Civ 1262 is a reminder that where permission is not required, CPR 6.34 still has to be complied with, and that getting the procedural basis wrong may not be remediable after the event. Even in no permission cases, procedural discipline still matters.
Where Permission Is Needed
If the claim does not fall within CPR 6.32 or 6.33, the claimant moves into the permission regime under CPR 6.36. That requires a recognised gateway from the list set out in CPR 6 PD 6B para 3.1.[iii]
Subsequently, CPR 6.37 then requires an application to identify the gateway relied on, confirm that the claimant believes the claim has a reasonable prospect of success, and identify where the defendant is or is likely to be found. Critically, the court will not grant permission unless satisfied that England and Wales is the proper place in which to bring the claim. Because the application is ordinarily made without notice, it also has to be properly evidenced and made with full and frank disclosure.
That “proper place” requirement is not a decorative extra. It reflects the longstanding Spiliada principle. In Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, the House of Lords explained that the court looks for the forum in which the case may most suitably be tried for the interests of all the parties and the ends of justice, in other words the forum with which the action has the most real and substantial connection. Relevant factors include convenience and expense, the availability of witnesses, the governing law, and the places where the parties reside or carry on business.
The gateway analysis itself also needs care. The claimant must show:
- a good arguable case that the claim falls within one of the PD 6B gateways;
- a serious issue to be tried on the merits; and
- that England is the proper forum.
The authorities[iv] show that this requires more than recital and less than final proof. It is not enough to label the gateway. There has to be evidence and legal analysis supporting it.
If the claimant gets through that stage, the result should be a properly structured order, not merely a bare statement that service out is allowed. Practitioners should use Form PF 6B as the basis of their draft Order. CPR 6.37(5) contemplates that the court will specify the time for acknowledgment of service, defence, admission, or other response, and may also direct the method of service. The order should generally identify the country in respect of which permission to serve is granted.
(Some of) The Traps
This all sounds straightforward in the abstract. In practice, and as this article opened with, these early stages are where many claims begin to wobble.
- The first trap is failing to identify whether service out is needed at all. Sometimes that sounds obvious. If the defendant lives in Spain, South Africa or Dubai, permission may plainly be required unless a specific exception applies. But the point is not always as simple as a foreign address on the front page of the claim form. Some cases involve defendants with multiple residences, family members in England, business addresses, solicitors already corresponding, or property interests within the jurisdiction. Those features can seduce practitioners into assuming that an English mode of service will somehow do. Often it will not. Equally, the reverse can happen. Practitioners can assume they must go abroad for service when in fact there is a valid domestic or agreed route which should have been considered first.
- The second trap is treating the gateway exercise as formulaic. It is not enough to say that the dispute concerns an English estate, English trust assets, or English land, and assume that jurisdiction follows. The court wants to know why this particular claim against this particular defendant belongs within one of the recognised gateways. That is a legal exercise, not a rhetorical one. If the analysis is thin, permission may be refused, or later set aside.
- The third trap is underestimating the forum question. Even if a gateway exists, the court still needs to be persuaded that England and Wales is the proper place to determine the dispute. In some probate and trust disputes that will be easy. In others, especially where foreign domiciliaries, foreign property, foreign administration, or foreign factual witnesses are involved, it may be less so. Claimants sometimes focus so heavily on establishing a gateway that they neglect the practical and juridical question of forum.
- The fourth trap is procedural optimism. Some claimants proceed as though permission can always be fixed later if needed. That is dangerous. If a claimant should have sought permission but did not, the problem is not just one of presentation. It goes to whether the court ever properly authorised the claim to cross the border in the first place. Later arguments about actual notice, technical defects, or the defendant’s knowledge of the proceedings may not save that failure.
This is why the order of analysis matters. Before asking how service should be effected, ask whether service out is needed. Before that, ask whether there is a valid route that avoids service out altogether. Before asking whether the defendant knows about the claim, ask whether the court is entitled to project its process beyond the jurisdiction. Before relying on pragmatism, identify the legal route.
Takeaways
For claimant lawyers, the practical lessons are simple. Begin with status and location. Is the defendant actually within the jurisdiction, or merely connected to it? Is there a contractual or statutory service route that changes the analysis? Does section 1139 or section 1140 do work here? Is there an agent? If service out is needed, identify the relevant route with precision. Distinguish no permission cases from permission cases. If it is a no permission case, get CPR 6.34 and form N510 right. If it is a permission case, evidence the application properly, address forum squarely, and ensure the resulting order is fully and correctly drawn.
For defendant lawyers, the same groundwork matters in reverse. When proceedings arrive from England, the first question is not always whether service was physically received. It is whether the claimant ever had the right to serve out at all. But that is not the only question. It may also be whether the claimant in fact never needed to serve out because a domestic statutory or contractual route was available and used. The answer to those questions determines the whole landscape of any jurisdiction challenge.
That is why analysis of service out of the jurisdiction is not the dull prelude to the real dispute. It is often the place where the real dispute begins.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
