Service Out of the Jurisdiction – 1

Petroleo Brasiliero SA v Mellitus Shipping Inc and Others (CA TLR 5 April)

Although the wording of CPR rules 6.20 and 6.21 differ from that of the former RSC Order 11 rules 1(1) and 4, the principles expounded in former authorities relating to Order 11 remain applicable. Even though the court would not otherwise have granted permission to serve a Part 20 claim form for contribution out of the jurisdiction, the court was entitled to take into account the special factor that the law of the other available jurisdiction allowed no remedy of contribution, and that therefore the party seeking to join the foreign defendant for contribution purposes in England would otherwise be unable to enforce its claim. Because of the very nature and wording of the rule, the argument of litigational convenience is able to be advanced by every claimant in every case where leave is sought in relation to Part 20 proceedings. While that would not necessarily be sufficient in itself to persuade the court into a favourable exercise of its discretion, it was a factor which might properly encourage a judge to lean in favour of allowing service out of the jurisdiction in the absence of positive counter-indications.