Serving proceedings out of the jurisdiction: gateways, forum and tactics after Sucden

Serving proceedings out of the jurisdiction is where cross-border claims are won or lost before the merits are ever reached. This guide covers the permission regime under CPR 6 and Practice Direction 6B, the gateways, the merits and forum requirements, and the tactical lessons from Sucden v TMT Metals, where the Court of Appeal confirmed jurisdiction over a nickel fraud and then refused to pause the claim for a contemplated Supreme Court challenge.

Who is this guide for?

Litigators issuing against defendants outside England and Wales, in-house counsel weighing where to sue on cross-border fraud or contract disputes, and anyone defending a jurisdiction challenge who needs to understand what the claimant had to establish. The stakes are procedural but decisive. A defendant who defeats service out never answers the claim here at all, which is why these applications are fought as hard as trials.

What must a claimant establish?

Permission under CPR 6.36 and 6.37 requires three things. First, a good arguable case that the claim falls within at least one gateway in paragraph 3.1 of Practice Direction 6B. Second, a serious issue to be tried on the merits, a threshold equivalent to surviving summary judgment. Third, that England and Wales is the proper place to bring the claim, the forum conveniens question, weighing where the events happened, where the parties and evidence sit, governing law and any related proceedings already on foot here. Applications are made without notice, so full and frank disclosure applies, and a material omission can sink an otherwise sound order later. Alternative service under CPR 6.15 is available where good reason exists, and was used in Sucden itself.

Which gateways matter most?

Three carry most commercial traffic. The contract gateways cover claims on contracts made in the jurisdiction, made through an agent here, governed by English law or containing an English jurisdiction clause. The tort gateway at paragraph 3.1(9) covers claims where damage was sustained within the jurisdiction or results from an act committed here. The necessary-or-proper-party gateway at 3.1(3) attaches a foreign defendant to a claim already properly proceeding against an anchor defendant. Sucden shows how the tort gateway operates in fraud: a good arguable case that a London meeting induced the broker, itself in England, to keep waiting rather than enforce a US$6.6m debt meant damage was sustained here, and in [2026] EWCA Civ 986 the Court of Appeal upheld that analysis with appellate guidance on locating damage for tort claims. Our report on Sucden v TMT Metals covers both rulings, including [2026] EWCA Civ 1080, in which the court ordered the defence served within 28 days rather than await a Supreme Court permission application, on undertakings protecting the defendant’s position.

Service out: a step-by-step checklist

• Map every gateway the facts will bear before issue, and plead them all: Sucden ran tort and necessary-or-proper party, and the tort gateway carried the day.
• Gather the evidence locating damage or contractual connection in England: where money moved, where reliance occurred, where meetings took place.
• Test the merits against the summary judgment standard and record the analysis.
• Prepare the forum conveniens case: witnesses, documents, governing law, related English proceedings, enforcement prospects.
• Draft the without-notice evidence with full and frank disclosure, including the points against you.
• Consider alternative service under CPR 6.15 at the outset if the defendant’s address or cooperation is doubtful.
• Diarise the challenge window: a defendant disputing jurisdiction must acknowledge service and apply under CPR Part 11.
• If a challenge fails and the defendant appeals upwards, seek directions for progression, offering the Sucden undertakings where needed.

Common mistakes

Pleading a single gateway is the classic one, since a court unpersuaded on one route cannot fall back on a route never advanced. A second is treating the gateway stage as the whole battle and arriving underprepared on forum, where challenges frequently succeed even after a gateway is established. Third, parties on both sides confuse jurisdiction findings with merits findings: everything at this stage rests on a good arguable case, and allegations, including the dishonesty allegations in Sucden, remain unproven until trial. Fourth, defendants assume that appealing a failed challenge freezes the claim, when the Court of Appeal has now shown it will order the merits to progress, on protective undertakings, where events are years old. Enforcement is the mirror-image question and is covered in our guide to enforcing a foreign judgment in England.

Relevant official sources

CPR Part 6 Section IV and Practice Direction 6B are on the Ministry of Justice procedure rules site. The Sucden judgments are on BAILII at [2026] EWCA Civ 986 and [2026] EWCA Civ 1080, with the appeal listing on judiciary.uk.

Date last updated: 13 August 2026.