Lloyd's Maritime and Commercial Law Quarterly
RESTRAINED NO MORE? SERVICE OUT OF THE JURISDICTION IN THE 21ST CENTURY
Greene Wood & McClean v. Templeton Insurance
With the relentless encroachment of rules of jurisdiction emanating from European Community treaties and legislation, it is unsurprising that the “common law rules” regulating the exercise of jurisdiction in cases not specifically covered by the European instruments have taken a back seat.1 Principles of common law jurisdiction, based on service of process within or outside the jurisdiction, are no longer relevant in civil and commercial matters where the defendant is domiciled in an EC Member State or Lugano Convention State, or in any other situation regulated by the Brussels I Regulation,2 the Lugano (or Lugano II) Convention3 or any statute allowing service out of the jurisdiction without permission.
This loss of prestige and prominence may, at least partially, explain an apparent sea change in recent years in judicial attitudes towards allowing service on persons not present within the jurisdiction.4 The present case provides a notable example of this shift, and as good an object as any for debating its legitimacy. Greene Wood & McClean LLP v. Templeton Insurance Ltd
5 concerned claims arising between the claimant firm of solicitors and the defendant, an Isle of Man-based insurance company, relating to earlier proceedings issued by the claimant on behalf of miners against their trade unions and former solicitors. The earlier proceedings had led to a significant award of costs against the miners. The claimant had accepted a liability to the miners to pay those costs, but sought
1. The expression “common law rules” is, of course, a misnomer as the rules have, within living memory, been principally contained in rules of court regulating the service of originating process. See now Civil Procedure Rules 1998 (CPR), Part 6.
2. Council Regulation (EC) No 44/2001 of 22 December 2000.
3. Civil Jurisdiction and Judgments Act 1982, Sch 3C (inserted by the Civil Jurisdiction and Judgments Act 1991). See also the Civil Jurisdiction and Judgments Regulations 2009 (SI 2009/3131) implementing the Lugano II Convention.
4. In City & Country Properties Ltd v. Kamali [2006] EWCA Civ 1879; [2007] 1 WLR 1219, the Court of Appeal (disapproving a statement by Lawrence Collins J in Chellaram v. Chellaram (No 2) [2002] 3 All ER 17, [47]) held that it was not necessary that the defendant be present within the jurisdiction at the time of service if CPR, Part 6 supported service in the defendant’s absence at an address within the jurisdiction. This (upside down) view of common law principles of jurisdiction removes another category of cases from the rules governing permission to serve out of the jurisdiction. See also Refco Ltd v. Varsani [2009] EWHC 2297 (Ch).
5. [2009] EWCA Civ 65; [2009] 1 WLR 2013; [2009] 1 Lloyd’s Rep IR 505.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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