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The HCO does not give the Rules Committee any express power generally
to make
rules as to service of process abroad. The statutory basis for our O 11 appears to rest
on a combination of :-
(a)
section 54 which empowers the Rules Committee to make rules of court
regulating High Court practice and procedure to be followed "in all causes and
matters whatsoever in or with respect to which the High Court has jurisdiction
...... and any matters incidental to or relating to that procedure or practice";
(b)
section 12(2) which establishes for the Court of First Instance an original
jurisdiction "of a like nature and extent as that held and exercised by the
Chancery, Family and Queen's Bench Divisions of the High Court of Justice in
England"; and "any other jurisdiction, whether original or appellate jurisdiction,
conferred on it by any law"; and
(c)
the fact that the specified English courts had been given jurisdiction founded on
service of process abroad.
This somewhat indirect statutory basis for the making of the rules in O 11 could fuel
the argument that any additions to O 11 which were not historically (or at some
relevant moment) reflected in the practice and procedure of the English court, requires
to be expressly sanctioned by an amendment to the Ordinance itself. Thus, it may be
significant that express provision was obviously thought necessary for additions to O
11 to be made in respect of in personam collision proceedings in the Admiralty
Jurisdiction. Section 12C(6) materially provides :-
"...... the Court of First Instance shall have jurisdiction to entertain an action in personam to
enforce a claim to which this section applies whenever any of the conditions specified ...... is
satisfied, and the rules of court relating to the service of process outside the jurisdiction shall
make such provision as may appear to the Rules Committee constituted under section 55 to
be appropriate having regard to the provisions of this subsection."
Notes
Cap 4 s 12C(6) is discussed below.
For the historical basis of O 11 jurisdiction in England and Wales, see Lawton LJ in The Siskina
[1979] AC 210 at 236. Such powers were given to the courts initially by the Common Law
Procedure Act 1852, s 18 and then by the Supreme Court of Judicature Act 1875, s16 which enacted
rules of court, including O 11, set out in a schedule.
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