If you start a claim in England against a party in another country, you usually need the Court’s permission to serve the claim on them. The court rules set out the bases on which you can apply for permission. This is the first step when serving a claim.
The Civil Procedure Rule Committee has approved a number of new jurisdiction gateways in PD 6B and amended existing gateways which are coming into force tomorrow (1 October 2022). Anna Pertoldi, a partner in our dispute resolution practice, has produced a more detailed article on these gateways here.
In respect of trusts, the new and widened gateways have amended paragraph 3.1 of PD6B. Paragraph 3.1 covers service out of the jurisdiction where permission is required pursuant to CPR 6.36. The new gateways that have been included are for:
- breaches of trust or fiduciary duty within the jurisdiction,
- trust and fiduciary duty claims where the legal relationship came into existence in the jurisdiction,
- claims for declarations that no trust or fiduciary duty has arisen where if it had done so it would satisfy a gateway, and
- claims against third parties for unlawfully causing or assisting in breaches of contract, trust, fiduciary duty or confidentiality/privacy where the relevant relationship or the breach has certain connections with the jurisdiction.
The widened gateways under paragraph 3.1 of PD6B are for constructive trust and fiduciary duty claims which are governed by English law.
The extension of the trusts gateways is all the more significant given the legal landscape post-Brexit. This is because permission is required to serve out, even for EU and Lugano defendants, absent a jurisdiction clause. Given a lot of trusts litigation is international and cross-border in nature this is a welcome addition and could make it easier for trusts litigation to be conducted in England.
However, service out of the jurisdiction is just the first step and does not mean that the claim will certainly be heard in England. Even if a party in another country is served with an English claim form, they can still dispute the Court’s jurisdiction to hear the matter and those rules are unaffected by this change ie you could get permission to serve your claim out of the jurisdiction and still have the English Court ultimately rule that they do not have jurisdiction to hear the matter.