On 1 October 2015, some of the rules in Practice Direction 6B - Service out of the Jurisdiction were changed.
The rules are those applicable to non-European defendants, i.e. those outside the E.U. Judgments Regulation 2012. The changes widen some of the gateways useful for trust claims. Here are relevant gateways in para 3.1 of the Practice Direction:
(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –
(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.
(4A) A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.
(11) The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.
(12) A claim is made in respect of a trust which is created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, and which is governed by the law of England and Wales.
(12A) A claim is made in respect of a trust which is created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, and which provides that jurisdiction in respect of such a claim shall be conferred upon the courts of England and Wales.
(13) A claim is made for any remedy which might be obtained in proceedings for the administration of the estate of a person who died domiciled within the jurisdiction or whose estate includes assets within the jurisdiction.
(14) A probate claim or a claim for the rectification of a will.
(15) A claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction.
(16) A claim is made for restitution where –
(a) the defendant’s alleged liability arises out of acts committed within the jurisdiction; or
(b) the enrichment is obtained within the jurisdiction; or
© the claim is governed by the law of England and Wales.
Gateways (4A), (11), (13), (15) and (16) are new or amended as from 1 October 2015. Gateways (12) and (12A) were new or amended as from 6 April 2015; gateways (3) and (14) are unchanged. Significant changes in 2015 are:
- Ancillary claims can be tacked on (gateway (4A)).
- The main trusts gateway, gateway (12), no longer requires the defendant to be a trustee.
- The existence of a jurisdiction clause in the trust instrument is now a ground for service out (gateway (12A): cf. the Judgments Regulation, art. 25(3)).
- Resulting trusts are covered for the first time (gateway (15)).
- In claims for about constructive trusts or for restitution, there are now alternatives to relying on acts committed within the jurisdiction.
- Claims in the administration of estates are not confined to cases where the deceased was domiciled in England & Wales (gateway (13).
- Where the presence of assets within the jurisdiction is relied on (gateway (11)), It is no longer necessary for all of them to be so situated.
Nicholas Le Poidevin, Q.C.
New Square Chambers