The County Court Rules 1981

ORDER 8SERVICE OUT OF ENGLAND AND WALES

Interpretation

1.  In this Order the following words and expressions have the following meanings, unless a contrary intention appears:—

“originating process” includes a third party notice;

“interlocutory process” means a summons, order or notice issued, made or given in proceedings already commenced in or transferred to a county court;

“process” means an originating process or an interlocutory process;

“country” means a foreign country, or any country mentioned in rule 8(5);

“country of service” means the country in which a process is to be served or is served pursuant to leave granted under this Order;

“convention country” means a foreign country with which a convention has been made relating to civil procedure including the service of documents issued from England or Wales in the foreign country and includes a country which is a party to the Hague Convention;

“Hague Convention” means the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial matters signed at The Hague on 15th November 1965(1);

“applicant” means the party applying for or obtaining leave under this Order to serve a process out of England and Wales;

“respondent” means the party on whom the applicant seeks or obtains leave to serve a process.

Conditions of allowing service of originating process

2.  Except in an action to which rule 3 applies, the court may allow an originating process to be served out of England and Wales where—

(a)the whole subject-matter of the proceedings is land situate within the district (with or without rent or profits); or

(b)any act, deed, will, contract, obligation or liability affecting land situate within the district is sought to be construed, rectified, set aside or enforced in the proceedings; or

(c)any relief is sought against any person domiciled or ordinarily resident in England or Wales against whom an action may be commenced in the court by virtue of Order 4, rule 2; or

(d)the claim is for the administration of the personal estate of any deceased person who had his last residence within the district, or for the execution (as to property situate within the district) of the trusts of any instrument of which the person to be served is a trustee, which ought to be executed according to the law of England; or

(e)the claim is founded on any breach or alleged breach, within the district, of any contract wherever made, which, according to the terms thereof, ought to be performed within England or Wales, unless the respondent is domiciled or ordinarily resident in Scotland or Northern Ireland; or

(f)the claim is founded on a tort committed in England or Wales; or

(g)any injunction is sought as to anything done, or to be done, in the district, or any nuisance in the district is sought to be prevented or removed; or

(h)any person out of England and Wales is a necessary or proper party to any proceedings properly commenced in the court against some other person duly served in England or Wales; or

(i)the claim is for a sum to which the Directive of the Council of the European Communities dated 15th March 1976 No. 76/308/EEC applies, and service is to be effected in a country which is a member state of the European Economic Community.

Collision of ships and similar cases

3.  Where an action is brought in a county court to enforce a claim to which section 70 of the Act applies, the court may allow the summons to be served out of England and Wales if, but only if,—

(a)the defendant has his habitual residence or place of business within England and Wales; or

(b)the cause of action arose within inland waters of England and Wales or within the limits of a port of England and Wales; or

(c)an action arising out of the same incident or series of incidents is proceeding in that court or has been heard and determined in that court; or

(d)the defendant has submitted or agreed to submit to the jurisdiction of the court.

In this rule “inland waters” and “port” have the same meanings as in subsection (1) of the said section 70.

Conditions of allowing service of other process

4.—(1) The court may allow an interlocutory process to be served out of England and Wales on a person who is already a party to the proceedings and, in the case of a defendant, respondent or third party, has been served with the originating process.

(2) The court may allow an application for an attachment of earnings order to be served on the debtor out of England and Wales where the person to whom the order is to be directed is in England or Wales.

Scotland and Northern Ireland

5.—(1) Subject to paragraph (2), where leave is asked from the court under rule 2 to serve a process in Scotland or in Northern Ireland and it appears to the court that there may be a concurrent remedy in Scotland or Northern Ireland (as the case may be), the court shall have regard to the comparative cost and convenience of proceeding in the district, or in the place of residence of the respondent, and particularly to the powers and jurisdiction of the sheriff courts in Scotland and of the county courts in Northern Ireland, respectively.

(2) Nothing in this rule shall be construed as enabling leave to be given under paragraph (e) of rule 2 where the respondent is domiciled or ordinarily resident in Scotland or Northern Ireland.

Application to be supported by evidence

6.—(1) An application for leave to serve a process on a respondent out of England and Wales shall be supported by affidavit or other evidence—

(a)stating (in the case of a fixed date summons) that in the belief of the deponent the applicant has a good cause of action; and

(b)showing (in the case of any process)—

(i)in what country and place the respondent is or may probably be found; and

(ii)whether the respondent is a United Kingdom national or not; and

(iii)the grounds on which the application is made.

(2) Leave shall not be granted unless it appears to the court that the case is a proper one for service out of England and Wales.

Return day etc

7.  When giving leave to serve a process out of England and Wales the court shall—

(a)in the case of a default summons, fix the time for delivering an admission or defence or paying the total amount of the claim and costs into court, and

(b)in any other case, fix the return day,

and in so doing shall have regard to the distance of the country of service.

Modes of service

8.—(1) Where leave has been given to serve a process out of England and Wales, service may, subject to the provisions of this rule, be effected—

(a)through the court; or

(b)by the applicant or his agent.

(2) Where the country of service is a convention country, service may be effected through the court or, if service by the applicant or his agent is permitted by the convention, by the applicant or his agent.

(3) Where the country of service is neither a convention country nor a country mentioned in paragraph (5), service may be effected through the court.

(4) Where the country of service is not a convention country but is a country mentioned in paragraph (5), service may be effected by the applicant or his agent, if and so far as the law of the country of service permits.

(5) The countries referred to in paragraphs (3) and (4) are:—

(a)Scotland, Northern Ireland, the Isle of Man and the Channel Islands;

(b)any independent Commonwealth country outside the United Kingdom, and any territory administered by the government of such a country;

(c)any associated state;

(d)any colony;

(e)the Republic of Ireland.

(6) Where the respondent is a State, as defined in section 14 of the State Immunity Act 1978, service shall be effected through the court, except where the State has agreed to some other method of service.

Service by applicant

9.  The process, if served by the applicant or his agent, shall be served on the respondent by delivering it to him personally.

Service through the court

10.—(1) Where service is to be effected through the court, the applicant shall file a request in that behalf, together with a copy thereof and two copies of the process to be served.

(2) The request shall indicate whether the applicant wishes service to be effected—

(a)through the authority designated under the Hague Convention,

(b)through the foreign judicial authority,

(c)through a British consular authority,

(d)through the foreign government, where it is willing for service to be effected in that way.

(3) Where the party to be served is a State, as defined in section 14 of the State Immunity Act 1978, the request shall indicate that fact and that the applicant is willing for service to be effected by whatever method the Secretary of State may choose.

(4) The applicant shall file with the request two copies of a translation of the process in the language of the country of service, certified by or on behalf of the applicant to be a correct translation:

Provided that this paragraph shall not apply where the official language or one of the official languages of the country of service is English, or service is to be effected on a United Kingdom national directly through the British Consul, unless the country of service is a convention country and the convention requires a translation.

(5) The proper officer shall seal the two copies of the process and the translations (if any), and shall forward them and the request to the senior master.

(6) An official certificate or declaration upon oath or otherwise of the judicial authority, central authority or government of the country of service or of the British consular authority in that country, transmitted by the senior master to the proper officer of the county court, shall be received as evidence of the facts certified or declared with regard to the service or attempted service of the process.

(7) Where the process has been served in accordance with the law of the country of service, or in the manner in which default summonses are required to be served, the service shall be deemed to be good service.

(8) Where it appears from the certificate or declaration that the process has been duly served upon the respondent, the certificate or declaration shall be an equivalent substitute for any affidavit or certificate of service required by these rules.

(9) Where, pursuant to an order for substituted service, a document is required to be transmitted through the court to the country of service, the provisions of this rule shall apply with the necessary modifications.

Proof of service

11.  Where the respondent does not appear on the return day, the applicant shall, before proceeding, file an affidavit or official certificate or declaration, showing that the process has been duly served.

Setting aside the service

12.  The respondent may apply, on notice, to the court to set aside the service of the process, or to discharge the order giving leave to serve the process out of the jurisdiction.