A claim form for service outside the jurisdiction does not cease to be valid after 4 months (Lunn v Antarctic Logistics Centre International (Pty) Ltd)

Dispute Resolution analysis: Master Thornett has refused an application to set aside the grant of permission to serve a Claim Form out of the jurisdiction in the context of a personal injury claim following an accident at an air base in Antarctica. Where the Defendant is out of the jurisdiction and it is always intended that the Claim will be served on them out of the jurisdiction the Claim Form does not lapse after 4 months.

Lunn v Antarctic Logistics Centre International (Pty) Ltd [2023] EWHC 2856 (KB))

What are the practical implications of this case?

This judgment addresses, among other matters, the status of a claim form after the 4 month period of validity specified by CPR r.7.5 where the Defendant is out of the jurisdiction. It was argued before Master Thornett in this case that because the claim form had been marked ‘not for service out of the jurisdiction’ by the Court, this meant that the validity of the claim form lapsed after 4 months. This was based on what has now been held to be a misreading of the decision in American Leisure Group Ltd v Garrard [2014] EWHC 2101 (Ch). In fact, where it is intended at all times that the claim will be served out of the jurisdiction and (as here) the address for service of the Defendant is outside the jurisdiction, the validity of the Claim Form does not lapse at the expiry of the 4 month period. The Court’s marking merely records that permission to serve out has not yet been granted and, accordingly, an application for permission to serve out may properly be made more than 4 months after the claim is issued.

What was the background?

In February 2018, the Claimant, Mr Lunn (a resident within the jurisdiction of England and Wales) was operating as a self-employed aircraft engineer at an air base in Antarctica when he suffered an injury at work. Proceedings were (by Claim Form) issued on 10 February 2021 against five different entities, however, in his Particulars of Claim Mr Lunn elected to proceed against only one, a company based in South Africa (“ALCI”) alleged to be the occupier and operator of the site of the accident. The Claim Form was marked, ‘not for service out of the jurisdiction’ by the Court. On 15 July 2021, Mr Lunn made a without-notice application for permission to serve out of the jurisdiction on ALCI. That application was supported by a witness statement of a solicitor, Mr Barnett. On 3 August 2021, permission was granted and time for service on ALCI was extended to 29 January 2022. The Court approved a draft order which provided ALCI with a period of 28 from service of the sealed order to apply to suspend, vary or revoke the order granting permission. An extension of time for serving on ALCI was given on 24 January 2022 until 29 July 2022; that order adopting the same wording and structure as the 3 August 2021 order. Proceedings were served on ALCI on 24 August 2022. The witness statement of Mr Barnett was not among the papers served at that time.  On 1 February 2023, ALCI acknowledged service and made clear that it intended to contest jurisdiction and on 14 February 2023 it applied for an order setting aside the grant of permission and for declarations that the English court has no jurisdiction to try the claim. This application included an application for an extension of time under CPR r.11(4)(a). It was also accompanied by a draft interim order which sought an extension of time to 15 April 2023 for the service of evidence supporting the application and that the case be stayed pending a decision on jurisdiction. The parties agreed that evidence could be served by 15 May 2023, however ALCI’s evidence was not served until 15 June 2023. ALCI accordingly sought relief from sanctions and/or permission to rely on that statement out of time. By the time of this hearing on 18 October 2023, there were, therefore, 3 preliminary points for consideration: (1) Whether the application for extension of time for service of the Claim Form was made outside a four month period of validity and whether, therefore, the grant of permission to serve out ought not to have been given; (2) The procedural status of ALCI’s application of 14 February 2023; and (3) Whether ALCI has sought to challenge jurisdiction in time.

What did the court decide?

On the first issue, ALCI sought to argue that an authority, American Leisure Group Ltd v Garrard [2014] EWHC 2101 (Ch) supported the proposition that where the address for service is outside the jurisdiction but no permission to serve has been obtained, the Claim Form is only for service in the jurisdiction and is valid only for a period of 4 months. Counsel for Mr Lunn submitted, and the Court accepted, that this proposition runs contrary to authority in the form of Anderton v Clywd CC [2002] EWCA Civ 933 and Nesheim v Kosa [2006] EWCA 2710 (Ch) and that ALCI was misreading the Garrard authority. The Court noted that (unlike in Garrard) it had always been intended that the Claim Form would be served on Defendants out of the jurisdiction. The marking ‘not for service out of the jurisdiction’ was nothing more than a procedural confirmation that the permission process had not yet been completed. The validity of the claim form did not, therefore, expire after 4 months. The second and third preliminary points were taken together in the judgment. The order made on 3 August 2021 was defective in that it failed to specify a time for ALCI to acknowledge service. In any event, because of the failure on the part of Mr Lunn to provide the witness statement of Mr Barnett when the proceedings were served, ALCI’s jurisdiction challenge should be allowed to proceed

Case details

• Court: King’s Bench Division
• Judge: Master Thornett
• Date of judgment: 10 January 2024

Article by Phillip Patterson – first published by LexisNexis