The case of the day is Libyan Investment Authority v. JP Morgan Markets Ltd., [2019] EWHC 1452 (Comm). The LIA sued JP Morgan, alleging that a 2007 trade had been procured by fraud. The LIA moved for leave to serve process on two of the defendants, Walid Mohamed Ali Al-Giahmi and Lands Company Ltd., out of the jurisdiction. The two defendants moved to set aside the service on the grounds that the actions were barred by the statute of limitations and that the LIA had been less than frank with the court when it sought leave, ex parte, to serve process out of the jurisdiction. The court granted the motion to set aside the service.

I am not going to recite the history of the case. I am writing about it just to illustrate an interesting difference between US and English law on service abroad. A US plaintiff does not need leave of court to serve process abroad. In English law, on the other hand, the plaintiff does need leave of court, and the court should not grant leave unless “there is between the claimant and the defendant a real issue which it is reasonable for the court to try.” As the court says, this is akin to asking whether the plaintiff could survive a motion for summary judgment.

This is fascinating to me because it shows that in England the trend in the common law toward regarding service of process as merely a matter of notice is not as far along as it is in the United States. Here it is still pretty common to mix up concepts of service (did the defendant get adequate notice in time?) with concepts of personal jurisdiction (can the court exercise power over the defendant?) But apparently in England the issue of service can even be mixed up with the merits of the case. “If the case has no merit, you cannot provide notice of the case to the defendant, at least if he lives abroad.” To my way of thinking, this is not the right approach to service. I don’t mean to say that this approach never appears in the United States: something similar happens when a judge does an initial screening of case filed in forma pauperis and immediately dismisses claims that appear frivolous without giving the plaintiff a chance to serve process. But I do think that we should try to keep the concepts of service, jurisdiction, and the merits as separate as we can. Why not just say, “the judge granted summary judgment to the defendants on the merits” in a case like this?