Service out of the jurisdiction is an issue that comes up frequently in commercial litigation. It is thus important to ascertain the proper approach in this regard. Conventionally, the applicant in an application for service out has to satisfy three requirements: (i) there is a serious issue to be tried; (ii) the claim(s) falls within one or more of the gateways; and (iii) the case is a proper one for service out of the jurisdiction (in the case of England, the third requirement is whether England and Wales is the proper place in which to bring the claim). Insofar as England and Hong Kong are concerned, the third requirement has traditionally been understood to be concerned with the principle of forum conveniens.

Following two recent UK Supreme Court decisions in the Brownlie litigation, which clarified the scope of the “tort gateway”, the Hong Kong Court of Final Appeal had an opportunity to address the same issue. Whilst endorsing the approach of the majority of the UK Supreme Court to the tort gateway, Lord Collins, in discussing the minority approach, reintroduced the old “letter and spirit rule”, i.e. the case must be clearly within both the letter and spirit of the relevant head of jurisdiction. How does this rule fit into the modern 3-stage framework? Is it too late to revive this rule and bring it back into the game?

This seminar entails a discussion on the modern approach to service out, the tort gateway, and whether the letter and spirit rule ought to be revived and incorporated into the modern approach.