“Ideaworks are responsible for maintaining all communication, TV and audio equipment at Athlone House by virtue of a service agreement. This includes the maintenance of internal phonelines that allow security to keep in touch with residents of Athlone House and to inform them of any potential emergencies or visitors. Payment of this service is therefore necessary for the maintenance of the property and the security of its occupants, which amount to the basic needs of [Mr Fridman] and his dependent family members.”
“(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (“current address”). (4) Where, having taken the reasonable steps required by paragraph (3), the claimant— (a) ascertains the defendant’s current address, the claim form must be served at that address; or (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is— (i) an alternative place where; or (ii) an alternative method by which, service may be effected. (5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.”
“The court has jurisdiction … to entertain a claim in personam against a defendant who is present in England and duly served there with process.”
“Any individual who is present in England is liable to be served with proceedings in personam, however short may be the period for which that person is present in England.”
“The common law question then becomes one of how and when the claimant may serve process on a defendant. If the defendant is present within the territorial jurisdiction of the court, the claimant has a right to serve him there and then. If the defendant is not within the territorial jurisdiction of the court, and has not appointed an agent within the jurisdiction to accept process on his behalf, the claimant has no right to serve him. ”
“… it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service.”
“There is, so to speak, a jungle of separate, broadly based, jurisdictions all over the world. In England, for example, jurisdiction is founded on the presence of the defendant within the jurisdiction, and in certain specified (but widely drawn) circumstances on a power to serve the defendant with process outside the jurisdiction.”
“…must be present within the jurisdiction or amenable to being served with the proceedings out of the jurisdiction, or else he must have submitted voluntarily.”
“A fundamental characteristic of the common law’s approach to jurisdiction is that it equates jurisdiction with the service of process. A defendant who has not been served (at all) is not, or not yet, subject to the jurisdiction of the court. A defendant who has been served (in full conformity with the rules governing service or not) is subject to the jurisdiction of the court, for it is service, and only service, and always service, and nothing but service that gives the court personal jurisdiction over the defendant. To put it another way, service is the act which creates, crystallises, the jurisdiction of the court in relation to the claim. Service of the documents which institute legal proceedings is, therefore, not merely a notification that such proceedings are about to begin, but is the very act which gives the court jurisdiction over the defendant in respect of the claim set out in the documents. The material rules of English law, such as they are, are not rules of jurisdiction, but rules about service which have jurisdictional consequences. When the relevant committee alters the procedural rules about the service of documents, it is altering the rules which define the international reach, the jurisdiction of the court without any overt recognition that this is what it is doing. It is the strangest thing…. And as service is, in most cases, an act undertaken by or on behalf of the claimant without any prior scrutiny of the claim form by the court, the result can be that a defendant is made subject to the jurisdiction of the court in circumstances in which this should not, even manifestly should not, have happened. If the matter is disputed by the defendant, the application may lead to the court declaring that it does not have jurisdiction even though it does have it, or until the moment of its decision and order did have it. It may lead to the court declaring that it has no jurisdiction (or that it had no jurisdiction after all), but the court will, in such a case, set aside service, and it is that which dissolves the jurisdiction which the court, until that point, has undoubtedly had. How, one may ask, can a court be said to have jurisdiction (because of service), only to declare that it does not have jurisdiction (and set aside service)? The answer is that this is the most practical answer to a question which otherwise drives those searching for an answer round and round in circles.”
“Under these circumstances there was, in their Lordships’ opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit…; which is rightly stated by Sir Robert Phillimore (International Law, vol. 4, s. 891) to “lie at the root of all international, and of most domestic, jurisprudence on this matter.”
“My Lords, in the case of actions in personam, in which a writ has been regularly served on foreigners or foreign corporations, when present in this country, and a judgment has been obtained, it seems to be clear, as a general rule, that, under the obligations of that branch of international law, which governs the application of foreign judgments, other countries, whose Governments have been recognized de jure and de facto by the Government of this country, will accept the jurisdiction of the Courts of this country, and regard their judgments as valid. In the case of such actions, it may also be stated negatively that, where a writ cannot be served on a defendant foreigner, or foreign corporation, when in this country, and no submission to jurisdiction is proved, any consequent judgment has no validity in any other country, on the ground that the Courts of this country have no jurisdiction under international law over the person of an absent foreign defendant. In other words, the right to serve a writ, in an action in personam, on a foreign defendant, only becomes effective, as a source of jurisdiction, to be recognized in other countries when, at the date of service, such defendant is within the territorial jurisdiction of the English Courts.”
“It appears to me that the whole question is governed by the broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make the duty of an English Court to give effect to an English statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction. Every foreigner who comes into this country, for however limited a time, is, during his residence here within the allegiance of the Sovereign, entitled to the protection of the Sovereign and subject to all the laws of the Sovereign. But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English Legislature could have ever intended to make such a man subject to particular English legislation.”
“The court has jurisdiction to entertain a claim in personam against a person who submits to the jurisdiction of the court.”
“Put shortly, it was argued on Mr Hahn’s behalf that the jurisdiction of the court to entertain an action in personam depended historically on the defendant being served personally with the King’s writ. When the RSC were amended in 1979 to permit “letter box service,” it was not intended to alter the substantive jurisdictional requirement that the defendant be physically present within the jurisdiction at the time of service, but merely to provide an alternative to the procedural requirement that the defendant be handed the process personally. Physical presence within the jurisdiction at the time of service remained an essential ingredient of valid service.”
“My Lords, I accept the appellant’s proposition that the defendant must be within the jurisdiction at the time when the writ is served, and I do not find it possible to agree the Court of Appeal’s approach. This approach would mean that a writ could validly be served under Order 10 on a defendant who had once had an address in England but had permanently left this country and settled elsewhere, by inserting the copy writ through the letter box of his last address, provided that the plaintiff was able within seven days to communicate to the defendant the existence of the copy writ; for in such circumstances the plaintiff could properly depose that the copy writ would have come to the knowledge of the defendant within seven days after it was left in the letter box of his last known address. This appears to me to outflank Order 11 (relating to service of process outside the jurisdiction) in every case where the defendant was formerly resident in this country and is capable of being contacted abroad within seven days. I feel no doubt that the words “within the jurisdiction” apply to the defendant, and not to the writ for service.”
“Where by virtue of these rules any document is required to be served on any person and no other mode of service is prescribed by any Act or rule, the document may be served — (a) if the person to be served is acting in person, by delivering it to him personally or by delivering it at, or sending it by first class post to, his address for service or, if he has no address for service — (i) by delivering the document at his residence or by sending it by first class post to his last known residence …”
“… whether a similar limitation has to be read into Ord 7 r 1 and 10 of the County Court Rules in order to limit postal service to service on defendants who at the time of actual or deemed service are physically within the jurisdiction.”
“…I regard the limitation in RSC Ord 10 r. 1 as interpreted in [Barclays Bank]to postal service on defendants who are within the jurisdiction at the time of service as a very specific limitation, and not a general principle of practice in the High Court within the meaning of section 76 of the Act of 1984. Postal service itself is a matter of specific rules, and not a matter of general principles of practice.”
“In determining this question the Court ought in my opinion, as Lord Coleridge CJ said in Grant v Anderson, to have regard to the broad principles of international comity which in questions of jurisdiction must always be assumed to underlie the rules of Court or the enactments of Parliament.”
“… even though the rule-making power is wide enough to enable rules to be made relating to the examination of an officer who is outside the jurisdiction, the presumption against extraterritoriality still applies when considering the scope of CPR Pt 71.”
“(1) The claim form must be served within the jurisdiction except where rule 6.7(2) or 6.11 applies or as provided by Section IV of this Part.”
“(c) the defendant’s address or, if not known in what place the defendant is likely to be found”
“This Part applies to the service of documents, except where— (a) another Part, any other enactment or a practice direction makes different provision; or (b) the court orders otherwise.”
“The CPR introduced in 1998 are a new procedural code applying to both the High Court and the county court. RSC Ord 10, r 1 is no longer in force; and so there is no rule perpetuating the idea that a person has to be within the jurisdiction for service by post to be effected. The CPR as to service more closely resemble the former county court provisions than those of the High Court; for instance, the court now normally effects service of the claim form.”
“In my judgment, there is not, or at least no longer is, a fundamental principle such as Lawrence Collins J supposed. Further, I do not think that he was substantially correct to say, as he did in para 46 of Chellaram’s case[2002] 3 All ER 17 , that Rolph’s case[1993] 1 WLR 1305 was not binding. In my view, if it is not strictly binding, it is plainly applicable and not in substance distinguishable. The reasoning in Rolph’s case applies without qualification, in my view, to CPR Pt 6, which in substance are, so far as is relevant, the same as the former CCR. “Within the jurisdiction” depended after 1979 on the wording of the RSC, and the relevant part of RSC Ord 10, r 1 has gone. The court’s reasoning and conclusion in Rolph’s case are not affected by the existence of provisions enabling an application to be made for service out of the jurisdiction. I derive no assistance, for instance, from rule 6.20(1). I do not regard the present rules as ambiguous.”
“[14] … They mostly depend in essence on the proposition that service on a defendant who has to be within the jurisdiction at the time is an entrenched principle which cannot be abolished by an inexplicit sidewind of secondary legislation, which should accordingly be construed as not abolishing it. In my judgment, this overstates the durability of the so-called principle. Of course it applied in the days of personal service. For personal service could not otherwise be effected. But things have moved on and we have had service by post for over 35 years, and now by other means as well. [15] Now that service by post is permitted, it makes little sense that its effectiveness should depend on the chance that the defendant happens not to be abroad at the time, if service is in accordance with the rules, including rule 6.5. The CPR are not removing an entrenched principle, since the so-called principle has not applied in the county court for more than 35 years. As did Dillon LJ in that case, I find it impossible to construe the CPR as the defendant would have it. Even if this were arguable, which in my view it is not, I consider that Rolph’s case is applicable to the facts of this case and to the point that is taken.”
“The decision in the Rolph case …is also important here because it answers Mr Wolman’s point that one should not lightly assume that a common law principle has been reversed, as it were sub silentio, by a change in rules of procedure. If the CCR already had the effect determined in the Rolph case, the common law principle had already been reversed, albeit only in the county court. In effect, the effect of our conclusion is that, in the present connection, we are holding that the CPR followed the CCR, as interpreted in the Rolph case, rather than the RSC.”
“A balance has to be struck between the rights of a claimant and those of a defendant; and it seems to me that the balance achieved by the rule, as interpreted by the judge below, is fair and reasonable.”
“if one had a defendant living in the northern part of Cumbria, who was regularly in the habit of crossing the border for his lunch, it appears to me to make a complete nonsense of the whole matter if he were able to say that service had been bad because at the time when the letter had been put through the letter box or at the time when it had been posted he had happened to be in the southern part of Scotland for no more than an hour.”
“In my judgment, no good reason has been shown for the principle enunciated in The Theodohos, which represents a fundamental rule of the common law, to have been excluded from the application of the materially identical provision in the CPR. …Moreover, for our courts to exercise jurisdiction on a person or company that owes no allegiance to this country and is not present in it in any meaningful sense is not to be lightly assumed: a company served underCPR r 6.5 (3)(b) must, if it is to avoid a default judgment, incur the burden of coming to this country to apply for the proceedings to be stayed, even if the claim has no connection with this country at all.” (Emphasis added)
“[56] I respectfully entirely agree with the decision in City & Country Properties Ltd v Kamali. In that case, the defendant carried on business, and presumably resided, in this country (indeed, the claim was for unpaid rent due under the lease of his business premises), and relied on his temporary absence from the jurisdiction as a reason why the claim form had not been validly served. He was, by reason of his business if not his residence, subject to the jurisdiction. It is a very different thing to hold that, in effect, a company which has never had and has no presence within the jurisdiction may be validly served in this country, not by way of substituted service, but as of right if a director happens to be in this country. The artificiality in the present case of the claimants serving TTK by personal service on their own employee accentuates the unreasonableness of the position if the claimants are correct. [57] It is a general principle of the common law that absent specific provision (as in the rules for service out of the jurisdiction) the courts only exercise jurisdiction against those subject to, ie within, the jurisdiction. Temporary absence, for instance on holiday, does not result in a person not being subject to the jurisdiction. In my judgment, Lawrence Collins J’s statement of principle in Chellaram v Chellaram (No 2) … was correct if read with that qualification, and was not inconsistent with the decision in City & Country Properties Ltd v Kamali.”
“i. The inquiry is a multi-factorial and fact-dependent evaluation, in which all relevant circumstances are considered in order to see what light they throw on the quality of the individual's absence from the UK: ii. For residence to cease there should be a distinct break in the sense of an alteration in the pattern of the individual's life in the UK iii. This may well encompass a substantial loosening of social and family ties, but does not require a severance of such ties iv. The individual’s intention to cease residing in the jurisdiction is relevant to the inquiry but not determinative v. Actions of the individual after the material time (here, the issue of the claim form) may be relevant, if they throw light on the quality of the individual's absence from the UK vi. If the individual has in fact ceased to be resident according to the applicable criteria, the fact that his motive for doing so was unworthy or even unlawful will not affect the position vii. One should be careful to avoid the risk of over-analysis in applying what are ordinary English words.”
“… we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts. In the absence of authority compelling a contrary conclusion, we would conclude that the voluntary presence of an individual in a foreign country, whether permanent or temporary and whether or not accompanied by residence, is sufficient to give the courts of that country territorial jurisdiction over him under our rules of private international law.”
“X cannot, with any due regard to the English language, be said to “intend” a result which is wholly beyond the control of his will. He cannot “intend” that it shall be a fine day tomorrow: at most he can hope or desire or pray that it will. Nor, short of this, can X be said to “intend” a particular result if its occurrence, though it may be not wholly uninfluenced by X’s will, is dependent on so many other influences, accidents and cross-currents of circumstance that, not merely is it quite likely not to be achieved at all, but, if it is achieved, X’s volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence. If there is a sufficiently formidable succession of fences to be surmounted before the result at which X aims can be achieved, it may well be unmeaning to say that X “intended” that result.”
“… sanctions on Russia will remain in place until the UK Government is assured that Russia has ended its illegal annexation of Crimea and Sevastopol; withdrawn from eastern Ukraine and is no longer carrying out actions that undermine Ukraine’s sovereignty and territorial integrity.”