Prior to Brexit, it was possible to serve claim documents issued in England and Wales on a party outside of the UK jurisdiction without the need to apply for court permission, in a number of circumstances. The applicable law has since changed and, in a post-Brexit world, claimants in England & Wales needing to serve court papers on an overseas entity will have to either find novel ways of service under other provisions contained in the Civil Procedure Rules ("CPR") or make a formal application to court for permission to serve outside of the jurisdiction, resulting in delay and additional cost.

Pursuant to the applicable EU legislation, court permission was not previously required to serve overseas in various circumstances. Today, however, that regime no longer applies to the UK and it is now only possible to serve outside of the UK jurisdiction without court permission 1) in limited circumstances in relation to employment and consumer claims or 2) where the '2005 Hague Convention' (the "Convention") applies.

The Convention will generally apply to most civil and commercial disputes, except certain matters including (among others):

  • Wills and succession;
  • Insolvency;
  • Tenancies of immovable property; and
  • The validity of intellectual property rights other than copyright and related rights .

From 6 April 2021, service without Court permission will also be possible where the Convention does not apply but the relevant contract contains a jurisdiction clause in favour of the English courts.

Outside of these circumstances, it will be necessary to apply to the Court for permission to serve outside the UK.

Applying for permission to serve

The application must be accompanied by evidence setting out how the claim meets the 'jurisdictional gateways' set out in the relevant practice direction of the CPR . This includes, for example, where the claim is in relation to a contract that was made (and breached) within England & Wales or where an interim remedy, such as an injunction, is sought. Depending on the particular country, a certified translation of all documents to be served may need to accompany the application.

Once court permission has been granted, the claimant would need to contact the Foreign Process Service ("FPS") within the Queen's Bench Division of the High Court, which arranges service and advises on the relevant process for the particular country, including any fees and whether a translation is required.

Practical points to note

For claimants considering bringing an action in the English & Welsh courts against an entity or individual outside of the UK, the following points should be taken into consideration:

  •  Consider the relevant contract and whether it allows for service in England & Wales, upon an agent or at a specific address, negating the need to serve overseas.
  • Consider whether there is evidence to support authorisation of service by an alternative method. The court is able to make an order permitting an alternative method where steps have been taken to bring the claim form to the attention of a defendant, to dispense with service overseas . Some examples where the court has made such orders include:
    • Affixing copies of the claim form to the defendant's UK branch office
    • Affixing a copy of the claim form to the hoardings of a building, where a Luxembourg entity was carrying out construction works
    • Serving a claim form on an individual's Lebanon-based solicitors
    • Serving a claim form via WhatsApp message
  •  To prevent delays, apply for court permission at the same time as issuing a claim.
  •  Contact the FPS at the outset of a claim to determine what specific requirements are in place for the particular country and what translations might be required.
  •  The claimant has 6 months in which to serve a claim form outwith the UK (as opposed to the usual 4 months). This is useful given that service by the FPS abroad may take a number of weeks.

If you have any concerns or questions about a claim against an overseas entity and how these changes may impact you or your business, please do not hesitate to get in touch with our English disputes team or your usual Brodies' contact.


Lucie Barnes