Service Abroad Refused in a Pre-Action Disclosure Application

Service Abroad Refused in a Pre-Action Disclosure Application

The High Court has set aside an order that gave a proposed claimant permission for service abroad of a pre-action disclosure application, holding that it had no power to order that disclosure against a company based outside England and Wales in respect of documents held overseas. The decision is a reminder that permission to take a claim across a border depends on the court having jurisdiction over the underlying application in the first place.

The ruling was handed down in the Technology and Construction Court on 3 September 2026. A proposed claimant had applied for pre-action disclosure under CPR 31.16 against an overseas vehicle manufacturer, seeking internal documents in connection with an alleged product defect. Because the proposed defendant was based in Italy, the applicant also needed the court’s permission to serve the application on the company at its address abroad.

How the service abroad question arose

In September 2025 the applicant obtained an order permitting service of the disclosure application on the manufacturer in Italy under CPR 6.36 and 6.37, and, in the alternative, an order under CPR 6.15 allowing alternative service on the company’s English solicitors. That order was made without a hearing and without notice, in the usual way. The proposed defendant then applied under CPR 23.10 to set the order aside, arguing that the court had no jurisdiction to make the disclosure order it was being asked to serve.

On an application to serve out, the applicant must satisfy three requirements. There must be a good arguable case that the claim falls within one of the jurisdictional gateways in Practice Direction 6B, a serious issue to be tried on the merits, and grounds to show that England and Wales is the appropriate forum. Each limb must be met before the court will allow proceedings to be served on a party outside the jurisdiction.

Why the court refused service abroad

The court concluded that section 33 of the Senior Courts Act 1981, together with CPR 31.16, did not give it power to order pre-action disclosure against a respondent outside the jurisdiction in respect of documents located abroad. Without that power there was no serious issue to be tried on the disclosure application, so the requirements for service out could not be met, and the order permitting service abroad was set aside.

The judge accepted that the documents sought were held at the manufacturer’s headquarters in Italy and on a back-up server in the Netherlands. That foreign location was central to the outcome. The reasoning turned on the reach of the disclosure jurisdiction rather than on the conduct of either party, which is what makes the case useful well beyond its own facts.

Alternative service on English solicitors

The application had also sought alternative service under CPR 6.15 on the manufacturer’s English solicitors. Serving a foreign party’s solicitors in this jurisdiction is a recognised route where there is good reason for it, and it can avoid the delay of transmission under the Hague Service Convention. It does not, however, cure a want of jurisdiction over the underlying claim or application. Alternative service changes the method by which a document reaches a party, but it does not enlarge the court’s power to grant the relief being pursued.

Practical points for serving proceedings overseas

Before issuing against a party outside England and Wales, confirm the gateway relied on, the merits threshold and the forum arguments, and check that the court can actually grant the relief sought. Where service out is justified, using an agent experienced in alternative service and service out helps ensure the method chosen is valid and can be proved later. Getting the mechanics of foreign service right protects the claim from a later challenge.

Tremark serves proceedings on defendants at home and overseas and can advise on the most reliable method for your case, so please complete the form below to get in touch with our team.

Frequently Asked Questions

When is permission needed for service abroad?

Permission is generally required to serve proceedings on a defendant outside England and Wales unless a rule or an applicable arrangement allows service without it. The applicant must establish a jurisdictional gateway, a serious issue to be tried and that England is the appropriate forum.

Does the Hague Service Convention still apply?

Yes. The Convention governs the transmission of documents for service between contracting states, including many of the routes used to serve a defendant in Europe. The correct channel depends on the destination country and any declarations it has made.

Can a foreign defendant be served through English solicitors?

Sometimes. The court can order alternative service on a party’s solicitors where there is good reason, but that order affects only the method of service and not the court’s jurisdiction over the claim.