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Grounds publishedDecided 6 Apr 2026
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High Court

Beranek, Michal v Sreerangam Muruthi and others

[2026] SGHCR 10Case no. Originating Application No 1158 of 2025 (Summons No 3759 of 2025)

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  1. AR Chua Rui Yuan:

  2. Introduction

  3. [1] It is sometimes said that service is “not about playing technical games”: Abela v Baadarani [2013] 1 WLR 2043 (“Abela”) at [38]. There is some truth in that. However, it would be wrong to treat service, especially when it concerns originating process, as a technicality. This is because, under our law, service of originating process is the primary basis on which our courts assume jurisdiction over persons. In most cases, therefore, the existence of the court’s jurisdiction over the defendant depends on service being properly effected.

  4. [2] In this application, the first respondent, Mr Sreerangam Muruthi (“Mr Muruthi”), sought the setting aside of an order for substituted service previously obtained by the applicant, Mr Michal Beranek (“Mr Beranek”), and the service effected on him pursuant to that order. Mr Muruthi challenged the validity of service on him on two grounds. First, he submitted that service had not been properly effected as Mr Beranek should have, but failed to, obtain permission to serve him out of the jurisdiction. This argument raised a fundamental issue at the heart of the legal framework on service of originating process which, surprisingly, does not appear to have been directly addressed in the local case law: when will it be necessary for a claimant to serve originating process out of the jurisdiction on the defendant? The answer to this, it will be seen, requires a proper understanding of the nature, limits, and historical underpinnings of the court’s jurisdiction over persons.

  5. [3] The second of Mr Muruthi’s grounds of challenge was less novel but no less important. According to Mr Muruthi, Mr Beranek had failed to make full and frank disclosure to the court when he had applied for substituted service, by omitting to disclose evidence in his knowledge that Mr Muruthi was located outside Singapore. Challenges against orders made without notice on the basis of material non-disclosure are by no means uncommon, but it is always well to emphasise that the duty of full and frank disclosure is the principal safeguard against the unfairness of an order being made against a party before he or she has had the opportunity to be heard.

  6. Background facts

  7. [5] On 15 October 2025, Mr Beranek commenced HC/OA 1158/2025 (“OA 1158”) in which he sought leave to bring a statutory derivative action under s 216A of the Companies Act 1967 (2020 Rev Ed) (the “CA”) in the name of LSCS Pte Ltd (“LSCS”) (the third respondent in OA 1158) against Mr Muruthi (the first respondent in OA 1158) and Mr Rasheed Thaiyar Mohamed (“Mr Rasheed”) (the second respondent in OA 1158), for breaches of fiduciary duty. Mr Beranek, Mr Muruthi, and Mr Rasheed are all directors and shareholders of LSCS.

  8. [6] On 7 November 2025, Mr Beranek issued two summonses pertaining to the service of OA 1158 on Mr Muruthi and Mr Rasheed:

  9. (a) In HC/SUM 3260/2025 (“SUM 3260”), Mr Beranek sought an order that service on Mr Muruthi be effected by substituted service through a combination of three modes: (i) posting sealed copies of OA 1158 and the supporting affidavit on the front door or gates of an apartment at Commonwealth Avenue (the “Commonwealth Property”); (ii) delivering sealed copies of OA 1158 and the supporting affidavit by registered post to the Commonwealth Property; and (iii) sending sealed copies of OA 1158 and the supporting affidavit to two e-mail addresses used by Mr Muruthi.

  10. (b) In HC/SUM 3261/2025 (“SUM 3261”), Mr Beranek sought permission for OA 1158 to be served out of the jurisdiction on Mr Rasheed at his address in Western Australia.

  11. [7] Two affidavits were filed in support of the application for substituted service on Mr Muruthi in SUM 3260. I briefly summarise their contents.

  12. [8] In an affidavit deposed to by Mr Beranek, Mr Beranek explained that the solicitors acting for Mr Muruthi at the time, Nakoorsha Law Corporation (“NLC”), had indicated to Mr Beranek’s solicitors, Dauntless Law Chambers (“DLC”), that NLC had no instructions to accept service of process on Mr Muruthi’s behalf. Mr Beranek also confirmed that four attempts at personal service of OA 1158 on Mr Muruthi had been made between 22 October 2025 and 28 October 2025. Finally, Mr Beranek confirmed his belief that the proposed modes of substituted service in respect of the Commonwealth Property and the two e-mail addresses would be effective to give notice of OA 1158 to Mr Muruthi as: (a) the Commonwealth Property was reflected as Mr Muruthi’s registered address in a recent business profile search of LSCS on the portal of the Accounting and Corporate Regulatory Authority (“ACRA”); and (b) Mr Muruthi had recently used the two e-mail addresses to correspond with Mr Beranek and Mr Rasheed.

  13. [9] In an affidavit deposed to by one Mr Sukor bin Ali (“Mr Sukor”), a solicitor’s clerk employed by DLC, Mr Sukor confirmed and detailed the four attempts at personal service on Mr Muruthi between 22 October 2025 and 28 October 2025. These four attempts were as follows:

  14. (a) On 22 October 2025, at around 11.30am, Mr Sukor made a first attempt at personal service at LSCS’ registered address at Coleman Street. On arrival, he was informed by an Indian man that this was not Mr Muruthi’s place of business and only a registered business address.

  15. (b) Later the same day at around 6.40pm, Mr Sukor made a second attempt at personal service at the Commonwealth Property. However, at the Commonwealth Property, he was informed by a lady, who appeared to be Mr Muruthi’s housekeeper, that Mr Muruthi was overseas in Indonesia and would only return on 26 October 2025.

  16. (c) On 27 October 2025, at around 10.30am, Mr Sukor made a third attempt at personal service at the Commonwealth Property. He was also informed on this occasion by a lady, who appeared to be Mr Muruthi’s housekeeper, that Mr Muruthi was overseas. But this time, Mr Muruthi was away in Vietnam and she did not know when he would return to the Commonwealth Property. I record that it is unclear from Mr Sukor’s affidavit if the lady who he encountered on this occasion was the same person who he had encountered during his second attempt at personal service above.

  17. (d) On 28 October 2025, at around 10.00am, Mr Sukor made a fourth attempt at personal service at the Commonwealth Property. On this occasion, there was no response.

  18. [10] An order-in-terms was granted for both SUM 3260 and SUM 3261 on 10 November 2025. Subsequently, Mr Beranek effected substituted service on Mr Muruthi on 20 November 2025 pursuant to the order made in SUM 3260.

  19. [11] On 29 December 2025, Mr Muruthi brought the present application seeking to set aside the order for substituted service made in SUM 3260 and any service effected thereunder.

  20. The parties’ cases

  21. Mr Muruthi’s arguments

  22. [12] Mr Muruthi’s case for setting aside the substituted service order and the service effected pursuant to it was twofold.

  23. [13] First, Mr Muruthi argued that substituted service is not a valid means of service on a person who is not ordinarily resident in Singapore. In this regard, Mr Muruthi was ordinarily resident in Indonesia and not Singapore. Before me, his counsel, Mr Mahmood Gaznavi s/o Bashir Muhammad (“Mr Gaznavi”), submitted that, as a matter of law, if a defendant was ordinarily resident outside Singapore, the claimant would have to proceed by service out of the jurisdiction (and obtain permission to do so) before resorting to substituted service. Since Mr Beranek did not obtain permission to serve OA 1158 out of the jurisdiction, the service on Mr Muruthi was irregular and should be set aside.

  24. [14] Second, Mr Muruthi submitted that the order for substituted service should be set aside based on Mr Beranek’s non-disclosure of material facts to the court when applying for substituted service in SUM 3260. More specifically, Mr Beranek knew but failed to disclose to the court that Mr Muruthi was resident in Indonesia. In this regard, Mr Gaznavi referred me to, among other things, the history between Mr Muruthi and Mr Beranek (including a period of cohabitation when Mr Beranek resided with Mr Muruthi in Jakarta), messages between the two which indicated Mr Beranek’s knowledge that Mr Muruthi was based in Indonesia, and most importantly, an e-mail sent by Mr Muruthi to Mr Beranek’s solicitors, DLC, on 30 October 2025 – around a week before the filing of SUM 3260 – in which Mr Muruthi had stated that he was resident in Indonesia (the “E-mail”). These matters meant that it could not have been lost on Mr Beranek that Mr Muruthi was resident outside Singapore, but this fact was not disclosed to the court in SUM 3260. Furthermore, despite the extreme degree of non-disclosure, Mr Beranek had failed to provide any explanation on affidavit for his lack of candour in SUM 3260.

  25. Mr Beranek’s arguments

  26. [15] In response to the two grounds of challenge advanced by Mr Muruthi, Mr Beranek’s case was as follows.

  27. [16] First, Mr Beranek submitted that the service on Mr Muruthi was not irregular as the evidence established that Mr Muruthi’s ordinary residence was either Singapore or Singapore and Indonesia. On either view, Mr Muruthi being ordinarily resident in Singapore meant that Mr Beranek was entitled to serve OA 1158 on Mr Muruthi by substituted service, and it was not necessary for Mr Beranek to attempt service out of the jurisdiction or obtain the permission of the court for this. Before me, Mr Beranek’s counsel, Ms Sarah Khan (“Ms Khan”), relied primarily on Mr Muruthi’s ownership of the Commonwealth Property and the listing of the same as Mr Muruthi’s registered address on LSCS’ ACRA business profile as evidence of Mr Muruthi’s ordinary residence in Singapore.

  28. [17] Second, although Ms Khan conceded at the hearing that Mr Beranek had been guilty of material non-disclosure in so far as the E-mail was concerned, she contended that this was the full extent of non-disclosure and that none of the other matters raised by Mr Muruthi needed to be disclosed as they were not material. Furthermore, Ms Khan sought to downplay the culpability of Mr Beranek’s failure to disclose the E-mail as she characterised it as an inadvertent oversight as opposed to deliberate suppression. Given the limited extent of non-disclosure (being confined to the E-mail) and it being the result of inadvertence, the substituted service order should not be set aside and service pursuant to it should stand.

  29. A conceptual framework for setting-aside applications concerning service

  30. [18] I begin with a preliminary point. In their submissions, both Mr Gaznavi and Ms Khan tended to refer to the setting aside of the “order for substituted service” and “service” interchangeably. In my view, this elision was imprecise and should be avoided. There is a difference between setting aside an order for substituted service and setting aside service effected pursuant to that order. The former will typically subsume the latter, in that service effected pursuant to an order that is set aside will also be set aside as the substratum for service falls away, but the converse is not true as it is possible for service to be set aside on a ground that does not affect the underlying order itself. An applicant in a setting-aside application should therefore properly identify the subject of the challenge – ie, the order or service – and ensure that the grounds of challenge are legally relevant to that target.

  31. [19] A party challenges an order on the basis that the order should not have been made. This can be for a number of reasons, but the thrust of the challenge is that the requirements for making the order were not met. Mr Muruthi’s second ground of challenge in this case – material non-disclosure – was an argument of this kind. It is trite that the applicant in an ex parte or without notice application is subject to a duty to make full and frank disclosure of all facts relevant to the court’s assessment of whether to make the order sought. By arguing that Mr Beranek had failed to make full and frank disclosure in SUM 3260, Mr Muruthi was arguing that Mr Beranek had not satisfied one of the conditions for the making of the order and that the substituted service order should be set aside on that basis. The position would be similar if the argument was that Mr Beranek had failed to establish that personal service on Mr Muruthi was impractical, as required by O 7 r 7 of the Rules of Court 2021 (“ROC 2021”), or that the proposed modes of substituted service were not modes which would likely bring OA 1158 to Mr Muruthi’s notice.

  32. [20] In contrast, a party challenges service on the basis that it was not properly effected. This too can occur for a few reasons. But, in broad overview, service may be challenged on the basis that it was not in accordance with the prescribed manner of service under the ROC 2021 – for example, originating process was not served by personal service as is generally required under O 6 r 4 of the ROC 2021 – or, where service is conducted pursuant to an order of court, that it was not in accordance with the terms of the order – for example, substituted service was effected by posting the document to address B when the order provided for posting to address A. Apart from this, and most pertinent for the present case, service may be challenged on the basis that the claimant had no right to serve the defendant with originating process. As I explain below, Mr Muruthi’s first ground of challenge – that OA 1158 should have been served out of the jurisdiction – was an argument of this kind because it was not so much an argument that the order for substituted service should not have been made, but an argument that service pursuant to that order was irregular and should be set aside because Mr Beranek had failed to obtain permission to serve OA 1158 out of the jurisdiction.

  33. Issues to be determined

  34. [21] Based on the parties’ arguments and Mr Muruthi’s grounds of challenge, the issues arising for determination were as follows:

  35. My decision

  36. Whether service of OA 1158 should be set aside due to Mr Beranek’s failure to obtain permission for service out of the jurisdiction

  37. [22] I address first Mr Muruthi’s argument that the service on him should be set aside due to Mr Beranek’s failure to obtain permission to serve OA 1158 out of the jurisdiction. In my view, this argument can be addressed in four parts:

  38. [23] Given the length and depth of my discussion on the first to third points, I have included a relatively comprehensive and self-contained restatement of the legal framework at [196]–[214] below, which encapsulates the key takeaways from my discussion on the first to third points, before going on to apply that framework to the facts of this case under the fourth point.

  39. When is service out of the jurisdiction necessary?

  40. [24] I begin by observing that it was common ground between the parties that it would have been necessary for OA 1158 to be served on Mr Muruthi out of the jurisdiction if he was not “ordinarily resident” in Singapore. The parties’ arguments proceeded on this basis and were thus focused on establishing if Mr Muruthi’s ordinary residence was Indonesia (as Mr Muruthi submitted) or either Singapore or both Singapore and Indonesia (as Mr Beranek submitted).

  41. [25] In my view, this common assumption was mistaken. Indeed, before even examining the issue from principle, it would be clear from the statutory scheme for service out of the jurisdiction that the fact that a defendant may be ordinarily resident in Singapore does not mean that he or she need not be served out of the jurisdiction, since ordinary residence in Singapore is itself a gateway by which a claimant can establish a sufficient nexus to Singapore to justify the grant of permission for service out of the jurisdiction: see O 8 r 1 of the ROC 2021 read with para 63(3)(d) of the Supreme Court Practice Directions 2021 (“SCPD 2021”).

  42. [26] The question, then, is what the correct touchstone for service out of the jurisdiction is. To state my conclusion upfront, which I develop in detail in the following paragraphs, the correct focal point is the defendant’s presence within the jurisdiction at the time of service. As I explain below, this reflects the territorial nature of the court’s in personam jurisdiction and is consistent with the history of, and the current statutory scheme, for in personam jurisdiction. It follows that a claimant seeking to establish the court’s in personam jurisdiction over the defendant by service of originating process should:

  43. (a) Service within the Jurisdiction: if the defendant is present within Singapore at the time of service, serve originating process on the defendant, which the claimant may do as of right; or

  44. (b) Service Out of the Jurisdiction: if the defendant is not present in Singapore at the time of service, serve originating process on the defendant, which the claimant will generally require the permission of the court for under O 8 r 1(1) of the ROC 2021.

  45. (1) The jurisdictional function of service

  46. [27] It is well-established that service of originating process serves two functions: (a) first, it gives notice to the defendant of the proceeding; and (b) second, it establishes the civil jurisdiction of the court over the parties’ dispute: COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills [2024] 3 SLR 807 (“COSCO”) at [25].

  47. [28] The jurisdictional function of service ought to be situated in the statutory framework on the jurisdiction of the Singapore courts. This is important because our courts are creatures of statute and therefore only possess such jurisdiction that is conferred on them by the enabling legislation: Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [14]; Allenger, Shiona v Pelletier, Olga [2022] 3 SLR 353 at [23]. In this regard, service of originating process is the primary mode of establishing the court’s in personam jurisdiction over a defendant. It follows that, because the court’s jurisdiction is both given and limited by statute, service will only be effective in establishing the jurisdiction of the court over a defendant if it is compliant with the terms of the statute.

  48. [29] The relevant statute as far as the General Division of the High Court (“General Division”) is concerned is the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (the “SCJA”). More specifically, s 16(1) of the SCJA prescribes that the General Division will have in personam jurisdiction over a defendant in three situations:

  49. (a) Service Within the Jurisdiction: where an originating process is served on the defendant in Singapore in the manner prescribed by the Rules of Court or Family Justice Rules (see s 16(1)(a)(i) of the SCJA);

  50. (b) Service Out of the Jurisdiction: where an originating process is served on the defendant outside Singapore in the circumstances authorised by and in the manner prescribed by the Rules of Court or Family Justice Rules (see s 16(1)(a)(ii) of the SCJA); and

  51. (c) Submission to Jurisdiction: where the defendant has submitted to the jurisdiction of the court (see s 16(1)(b) of the SCJA).

  52. [30] I do not propose to dwell on the last of these as it is not in issue in this case. It suffices to say that, consistent with what I have said above on the court’s jurisdiction being limited by statute, s 16(1)(b) of the SCJA is not engaged by a mere agreement to submit to the Singapore court’s jurisdiction through, for instance, a choice of court agreement: Yeo Tiong Min, Commercial Conflict of Laws (Academy Publishing, 2023) (“Commercial Conflict of Laws”) at para 02.062; Halsbury’s Laws of Singapore vol 6(2) (LexisNexis, 2024) (“Halsbury’s”) at para 75.009. Thus, even if the parties have agreed by contract to submit to the jurisdiction of the Singapore courts, the claimant will typically still be required to invoke the court’s jurisdiction over the defendant by service of originating process: see para 63(3)(d)(iv) of the SCPD 2021. It is, however, probable that if the parties have agreed to submit to the jurisdiction of the Singapore courts, they may also have agreed to service out of the jurisdiction without the need for the court’s permission: see O 8 r 1(3) of the ROC 2021 and NW Corp Pte Ltd v HK Petroleum Enterprises Cooperation Ltd [2025] 3 SLR 607 (“NW Corp”).

  53. [31] I focus on s 16(1)(a) of the SCJA which provides for service as a mode of establishing the court’s jurisdiction over a defendant. Given that the court’s in personam jurisdiction can only exist within the terms of s 16(1) of the SCJA, a claimant seeking to establish the court’s jurisdiction over a defendant would have to satisfy either ss 16(1)(a)(i) or 16(1)(a)(ii) of the SCJA. This raises the question of what the relevant factor distinguishing the two provisions is.

  54. [32] A comparison of the two provisions reveals two differences. The first is that s 16(1)(a)(i) refers to service of originating process “in Singapore” whereas s 16(1)(a)(ii) refers to service of originating process “outside Singapore”. The second is that while s 16(1)(a)(i) provides that service in Singapore should be “in the manner prescribed by Rules of Court”, s 16(1)(a)(ii) provides that service outside Singapore should be “in the circumstances authorised by and in the manner prescribed by Rules of Court” [emphasis added].

  55. [33] In my judgment, the difference between the two limbs of s 16(1)(a) of the SCJA is that their respective applications depend on whether the defendant is present in Singapore at the time that originating process is served on him or her. Specifically, if the defendant is served with originating process while he or she is present in Singapore, the court’s jurisdiction will be established under s 16(1)(a)(i) of the SCJA. But, if the defendant is not present in Singapore, the court’s jurisdiction can only be established by service under s 16(1)(a)(ii) of the SCJA. The phrases “in Singapore” and “outside Singapore” in ss 16(1)(a)(i) and 16(1)(a)(ii) of the SCJA are thus references to the location of the defendant: Adrian Briggs, Civil Jurisdiction and Judgments (Informa Law, 8th Ed, 2025) (“Civil Jurisdiction and Judgments”) at para 1.01. This, in turn, leads to the second difference noted in the language of the two provisions:

  56. (a) If the defendant is present in Singapore, the claimant may serve the defendant with originating process as of right (ie, no permission or authorisation is needed from the court or any other person), and establish the court’s jurisdiction over the defendant, subject to compliance with the prescribed manner of service in the Rules of Court: PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] 4 SLR 1420 at [67]. This explains why s 16(1)(a)(i) of the SCJA only requires service to be “in the manner prescribed by Rules of Court”.

  57. (b) If the defendant is not present in Singapore, the claimant is not entitled to serve originating process on the defendant and invoke the court’s jurisdiction over the defendant as of right. Instead, the claimant would have to establish a right to serve the defendant with originating process based on the rules for service out of the jurisdiction under the Rules of Court. This additional condition explains why s 16(1)(a)(ii) of the SCJA requires that service not only be “in the manner prescribed by Rules of Court”, as s 16(1)(a)(i) of the SCJA also does, but requires that service also be “in the circumstances authorised by [Rules of Court]”. Under the Rules of Court currently in force in the ROC 2021, there are two sources for the right to serve originating process on a defendant outside Singapore:

  58. [34] The difference between the two limbs of s 16(1)(a) of the SCJA reflects the fundamental principle that a court’s jurisdiction over a person is based on territorial dominion: Emilia Shipping Inc v State Enterprise for Pulp and Paper Industries [1991] 1 SLR(R) 411 at [16] and [19]. What this means is that a court’s jurisdiction is presumptively territorial and limited to persons within the territory. The rigidity of this rule has been cut back over time such that the law now permits, through the enacted rules for service out of the jurisdiction, the assertion of jurisdiction over persons outside Singapore. But the general rule remains and finds expression in the distinction between ss 16(1)(a)(i) and 16(1)(a)(ii) of the SCJA. It follows that the defendant’s location at the time the procedural act which engages the court’s jurisdiction – ie, service of originating process – is taken is of critical importance: Siemens AG v Holdrich Investment Ltd [2010] 3 SLR 1007 at [6]–[7] (“in recognition of the primarily territorial nature of the court’s jurisdiction, the court begins with the location of the defendant when it decides whether it has jurisdiction over a dispute …”).

  59. [35] To better understand this, it is useful to trace the historical development of in personam jurisdiction under English law because s 16(1) of the SCJA was intended to put the Singapore courts on the same footing as the English courts jurisdiction-wise: see the speech of the Minister for Law at the second reading of the Supreme Court of Judicature (Amendment) Bill (Bill No 12/1993) in Singapore Parl Debates; Vol 61, Sitting No 1; Col 95; [12 April 1993] (S Jayakumar, Minister for Law). Indeed, the current structure of the English law on in personam jurisdiction is the same as s 16(1) of the SCJA as the English courts’ jurisdiction over a defendant is founded on service of originating process or the defendant’s submission: Stichting Shell Pensioenfonds v Krys [2015] AC 616 at [27]; see also, Rules 31, 32, 35–37 (respectively, on service, service within the jurisdiction and service out of the jurisdiction) and 33 (on submission) in Dicey, Morris & Collins on the Conflict of Laws (Lord Collins of Mapesbury & Jonathan Harris gen eds) (Sweet & Maxwell, 16th Ed, 2022) (“Dicey (16th Ed)”). Much insight on s 16(1)(a) of the SCJA can thus be gained from an appreciation of the English law perspective. Accordingly, I trace the development of English law in the next section before coming back to our existing statutory framework under the SCJA and the ROC 2021.

  60. (2) The development of the English law on in personam jurisdiction

  61. [36] It is fair to say that jurisdiction over a defendant has in modern times become so intertwined with service of originating process that it has recently been said by Professor Adrian Briggs that “[a] fundamental characteristic of the common law’s approach to jurisdiction is that it equates jurisdiction with the service of process” and “it is service, and only service, and always service, and nothing but service that gives the court personal jurisdiction over the defendant”: Civil Jurisdiction and Judgments at para 1.05. The element of hyperbole aside, this statement does depict relatively accurately the importance that service now holds under English and Singapore law.

  62. [37] But, as Professor Andrew Dickinson has demonstrated in a magisterial review of the history of the English courts’ in personam jurisdiction, it is not strictly correct to say that service acquired the significance it now has through the common law as the common law in fact only recognised one basis for the court’s jurisdiction over the defendant, which was not service of originating process but the defendant’s formal appearance by his presence in the court room: Andrew Dickinson, “Keeping Up Appearances: The Development of Adjudicatory Jurisdiction in the English Courts” (2017) 86 BYIL 6 (“Keeping Up Appearances”). The abrogation of the requirement of appearance and the modern significance of service is the result of statutory development on top of the common law. But it is with the common law position that I begin with.

  63. (A) Appearance

  64. [38] Under the common law, the court did not have jurisdiction over the defendant unless he or she appeared before it. The mere issue of a writ which contained a summons to appear coupled with service of it on the defendant did not suffice. A claimant was, however, not left to rely entirely on the defendant’s voluntary appearance as “the law had at its command various engines for compelling the appearance of the defendant”: Frederick Pollock & Frederic William Maitland, The History of English Law vol 2 (Cambridge University Press, 1898) (“Pollock and Maitland”) at p 593. These took the form of mesne processes aimed at coercing the defendant to appear, and broadly consisted of a combination of steps taken to bring the writ to the notice of the defendant and steps taken against his or her property and/or person: Keeping Up Appearances at 10–11. So, if the defendant failed to answer the summons in the writ, mesne process that could be resorted to included (see Nathan Levy Jr, “Mesne Process in Personal Actions at Common Law and the Power Doctrine” (1968) 78 Yale LJ 52 (“Levy”) at 59–64):

  65. (a) A writ of attachment, which commanded the sheriff to seize the defendant’s goods or make the defendant find sureties. If the defendant did not appear after attachment, the attached property would be forfeited to the Crown and the sureties fined.

  66. (b) A writ of distringas, which commanded the sheriff to distrain goods and profits of the defendant’s land, which would be forfeited to the Crown if the defendant did not appear.

  67. (c) A writ of arrest (for example, a writ of capias ad respondendum) which commanded the sheriff to arrest the defendant. If the defendant were arrested, he could procure his release from the sheriff until the time for his appearance in court by providing bail, and later execute the same in court, the latter of which would constitute his appearance.

  68. [39] However, the common law requirement of appearance was of exacting strictness in that the defendant’s presence in the jurisdiction would not suffice, even if coupled with service of the writ and mesne process, to give the court jurisdiction: Keeping Up Appearances at 14. An obstinate defendant could thus ultimately succeed in denying the court’s jurisdiction over him or her by refusing to appear even under the coercion of mesne process, which Story J noted in Picquet v Swan 19 F Cas 609 (1828) at 612–613:

  69. [40] This was of course unsatisfactory. That a defendant’s non-appearance could be punished by forfeiture of his or her property to the Crown was cold comfort to a claimant who was nonetheless unable to proceed. Indeed, as one commentator put it, the law at the time appeared to view the defendant’s refusal to appear as “more an affront to the King’s Court than to any principle of justice to the plaintiff”: Levy at 60. Two renowned legal historians criticised the rigidity of the rule of appearance as a “respectable sentiment that ha[d] degenerated into stupid obstinacy” (see Pollock and Maitland at p 594–595):

  70. [41] A recognition of these limitations provided the impetus for subsequent statutory reforms that shaped English law into what it is today. These reforms initially relaxed and later abrogated the common law rule in two different ways. First, the court’s jurisdiction over a defendant was gradually decoupled from the defendant’s appearance such that service of originating process on the defendant sufficed (see [43]–[46] below). Second, there was a further expansion of the court’s jurisdiction by allowing originating process, which hitherto had no effect on persons outside the jurisdiction, to be served on a defendant outside the jurisdiction if certain conditions were met (see [47]–[55] below).

  71. [42] Before turning to these developments, it is worth noting that a corollary of the strictness of the common law rule was that the defendant’s appearance in court, whether voluntarily or otherwise, meant that the court had jurisdiction over him or her irrespective of how that had come to be. The defendant’s unconditional appearance in court was taken as curing any irregularity in service or mesne process as the purpose of bringing the defendant into court had been fulfilled: Keeping Up Appearances at 12. Seen in this light, the common law’s use of appearance as the touchstone of jurisdiction is the origin of what is now known as jurisdiction founded on submission: Keeping Up Appearances at 16. This, as noted above, is the alternative ground for jurisdiction provided for under s 16(1)(b) of the SCJA, which is established by the taking of a step by the defendant that is incompatible with the position that the court does not have jurisdiction: see, for example, Reputation Administration Service Pte Ltd v Spamhaus Technology Ltd [2021] 2 SLR 342 at [20(a)].

  72. (B) Service within the jurisdiction

  73. [43] Coming then to the statutory reforms, the first area of development saw the gradual dilution of the importance of the defendant’s appearance in court. This began with the creation of mechanisms for deeming the defendant’s appearance and ultimately ended with the law dropping the pretence and moving away from appearance altogether.

  74. [44] Although change occurred incrementally, a wind of change deserving of specific mention is the Frivolous Arrests Act 1725 (c 29) (UK), which allowed a claimant whose cause of action was valued at less than £10 to serve the defendant with a writ and to proceed to enter an appearance on behalf of the defendant if the defendant did not appear within four days of the return date. Thus, while still adhering to the requirement of appearance as a condition for jurisdiction to give judgment, the rule was relaxed in so far as it could be satisfied by a fiction of appearance based on an act of the claimant rather than the defendant’s actual appearance: Keeping Up Appearances at 17–18. It would not escape keen eyes that this was a rudimentary version of the procedure for judgment in default of appearance under the former Rules of Court (2014 Rev Ed) (“ROC 2014”) and judgment in default of a notice of intention to contest or not contest under the current ROC 2021.

  75. [45] The device of having the claimant enter an appearance for the defendant became further entrenched and was extended in its application up until the early 19th century. Thus, in Williams v Lord Bagot (1825) 3 B & C 772, it was held that the court below had erred by declaring judgment before the defendant had appeared or had an appearance entered for him by the claimant (at 788). Four years later, in a report by the Royal Commission whose recommendations led to the Uniformity of Processes Act 1832 (c 39) (UK), the position and the history behind it was summarised as follows (see British Royal Commission, First Report Made to His Majesty By the Commissioners Appointed to Inquire into the Practice and Proceedings of the Superior Courts of Common Law (19 February 1829) (“1829 Report”) at p 70):

  76. It is noteworthy that, despite acknowledging that the requirement of appearance was not “indispensably necessary to the fairness of the judicial proceeding” as it was possible to establish a system without it if its purpose – the protection of defendants by giving them sufficient notice and opportunity to contest claims made against them – could be fulfilled by some other mode, the Commissioners recommended that the institution of appearance be retained as it was “useful and convenient”: 1829 Report at p 70.

  77. [46] The survival of appearance was, however, somewhat short-lived, as it was abolished some two decades later by the Common Law Procedure Act 1852 (c 76) (UK) (the “1852 Act”): Keeping Up Appearances at 27. The 1852 Act was, in many respects, a watershed moment that put English law into the position that it stands today. Apart from sounding the death knell for appearance as the touchstone of the court’s jurisdiction over a defendant and ushering in service of originating process in its place, the 1852 Act extended the court’s jurisdiction to persons outside the territory by making provision for service out of the jurisdiction, which I come to next. But, staying on course for the moment, the displacement of appearance by service as the touchstone of jurisdiction was achieved, in the main, by the following provisions of the 1852 Act:

  78. (a) Section 2 provided that all personal actions against defendants residing or supposedly residing within the jurisdiction were to be commenced by a writ of summons in the prescribed form.

  79. (b) Section 16 provided that the writ of summons could be served in any county.

  80. (c) Section 26 repealed the provisions in existing legislation relating to the claimant entering appearance on behalf of the defendant (see [44] above). In its place, s 27 introduced the modern apparatus for default judgment, as it provided that in the event of a defendant’s non-appearance, the claimant could obtain judgment by default on filing of an affidavit attesting to the service of the writ on the defendant.

  81. (d) Section 32 confirmed that proceedings commenced by writ could continue in default of a defendant’s appearance.

  82. (C) Service out of the jurisdiction

  83. [47] By ss 18 and 19 of the 1852 Act, a claimant could issue a writ for service out of the jurisdiction if the cause of action arose in England or concerned a breach of contract made in England, and could proceed with the action in the event of the defendant’s non-appearance upon satisfying a judge by an affidavit confirming, among other things, that the cause of action was a valid one for service out of the jurisdiction and that the writ had been personally served on the defendant or that reasonable steps had been taken to effect personal service.

  84. [48] In this way, the 1852 Act represented a paradigm shift in the traditional understanding of the court’s jurisdiction. Prior to this, it was well-understood under the common law that a court could only exercise jurisdiction over persons present within the territory: Gosper v Sawyer (1985) 160 CLR 549 at 564–565. The common law’s insistence on the defendant’s appearance in the court room was, in some sense, an extreme instantiation of the territoriality of jurisdiction. Although varying accounts have been given for this, one justification is that the courts were seen as exercising the authority of a sovereign and were thus subject to the same limitation in their jurisdiction as the sovereign in terms of his or her territorial competence: see Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd Ed, 2020) (“Authority to Decide”) at pp 178–182; Commercial Conflict of Laws at para 02.005. In turn, a writ, which was seen as an expression of sovereign authority (as noted by the Court of Appeal in Fortune Hong Kong Trading Ltd v Cosco Feoso (Singapore) Pte Ltd [2000] 1 SLR(R) 962 (“Fortune”) at [29]), could only be served on a person within the territory over which the sovereign had dominion (see Adrian Briggs, Private International Law in English Courts (Oxford University Press, 2nd Ed, 2023) (“Private International Law in English Courts”) at p 163):

  85. [49] The territorial nature of jurisdiction found expression in two maxims. The first was that the “King’s writ does not run beyond the sea” or that “the writ does not run beyond the limits of the State”: Laurie v Carroll (1958) 98 CLR 310 at 322. This embodied the “constitutional principle that the Sovereign’s authority, and therefore, the jurisdiction of the Sovereign’s Courts, is territorial” and “[p]ersons who are out of the realm of England are out of the sphere of the Sovereign’s authority, in so far as it is exercised by his Courts of Law”: Francis Taylor Piggott, Service Out of the Jurisdiction (Williams Clowes and Sons, 1892) (“Piggott”) at p xxxvii. As the High Court of Australia observed in McGlew v The New South Wales Malting Company Ltd (1918) 25 CLR 416, “[t]he efficacy of the civil process of a Colony was limited by the territorial limits of the Colony, beyond which limits the writs of the Supreme Court were, as it used to be said, mere waste paper” (at 420).

  86. [50] The second maxim was the Roman law principle actor sequitur forum rei, which roughly translates to the plaintiff having to sue in the jurisdiction in which the defendant is present. This was said by Lord Selborne, delivering the advice of the Privy Council in Sirdar Gurdyal Singh v The Rajah of Faridkote [1894] 1 AC 670 (“Sirdar Gurdyal Singh”), to be a principle which “lie[s] at the root of all international, and of most domestic, jurisprudence on this matter” (at 683). His Lordship went on to elaborate as follows (at 683–684):

  87. Subsequently, this statement was cited by Lord Parmoor in Employers’ Liability Assurance Corporation, Ltd v Sedgwick, Collins and Company Ltd [1927] AC 95 (“Employers’ Liability”) for the proposition that “the right to serve a writ, in an action in personam, on a foreign defendant, only becomes effective, as a source of jurisdiction, to be recognized in other countries when, at the date of service, such defendant is within the territorial jurisdiction of the English courts” (at 114–115).

  88. [51] The proposition stated by Lord Parmoor has been watered down as far as an English court’s view of the limits of its own jurisdiction is concerned, as statutory provision has been made since the 1852 Act for service of originating process on persons outside the jurisdiction as an effective means of establishing the court’s jurisdiction over such persons. However, it does remain an accurate statement of how most foreign courts, at least those in the common law tradition, would view the limits of the English court’s jurisdiction, which is strictly what Lord Parmoor and Lord Selborne were concerned with in Employers’ Liability and Sirdar Gurdyal Singh respectively. This is because it is well-established that it is the defendant’s presence in the jurisdiction, rather than service of originating process, that would establish a court’s (international) jurisdiction to give a judgment in personam against a defendant that would be recognised and enforced in another jurisdiction: Rubin v Eurofinance SA [2013] 1 AC 236 at [7]; Rule 47 of Dicey (16th Ed) at para 14R-045; see, for the similar position in Singapore, Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte Ltd [2014] 2 SLR 545 at [13]–[17]. In Adams v Cape Industries Plc [1990] 1 Ch 433 (“Adams”), the English Court of Appeal summarised the position thus (at 519A–C):

  89. In my view, the fact that the common law to this day recognises presence, and not service, as a basis for the court’s jurisdiction to give a judgment in personam against a defendant stands as tangible proof of the territorial nature of the court’s jurisdiction.

  90. [52] It is, however, open to every sovereign to extend its jurisdiction beyond that which will be seen as legitimate and given effect to by other jurisdictions through what Lord Selborne referred to in Sirdar Gurdyal Singh as “special local legislation” (see [50] above). Sections 18 and 19 of the 1852 Act were provisions in that light. As one commentator has explained, “a rule of the common law may be changed by the sovereign through his legislature”, and “[t]he courts would be obliged to obey the legislature … but they would obey under protest, aware that their action would receive no recognition from any other country”: Joseph H Beale, “The Jurisdiction of A Sovereign State” (1923) 36 Harv L Rev 241 (“The Jurisdiction of A Sovereign State”) at 242–243. Accordingly, while an English court may regard itself competent to give judgment against a defendant who is not present in the jurisdiction based on the rules for service out of the jurisdiction, whether such a judgment would be recognised and enforced in another jurisdiction is a different matter. Put a different way, the court’s international jurisdiction (ie, jurisdiction that will be recognised by other sovereign states) is not necessarily of the same scope as its domestic jurisdiction (ie, jurisdiction under its own law): The Jurisdiction of A Sovereign State at 244; Clive M Schmitthoff, A Textbook of the English Conflict of Laws (Sir Isaac Pitman & Sons, 2nd Ed, 1948) (“Schmitthoff”) at p 379; Schibsby v Westenholz (1870) LR 6 QB 155 at 159–160.

  91. [53] Thus, ss 18 and 19 of the 1852 Act extended the jurisdiction of the English courts to defendants outside the territory. These provisions paved the way, after the subsequent unification of the common law and equity courts by the Supreme Court of Judicature Act 1873 (c 66) (UK) and Supreme Court of Judicature Act 1875 (c 77) (UK), for the introduction into English law of the rules for service out of the jurisdiction under Order XI of the English Rules of the Supreme Court 1883 (SI 1883 No 5009) (UK) (“RSC 1883 (UK)”), the ancestor to the English Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) (“CPR (UK)”) and the former O 11 of the ROC 2014 and the current O 8 of the ROC 2021. The rules, broadly speaking, allowed for service out of the jurisdiction if the permission of the court was obtained upon satisfying certain conditions that continue to be applied today. It should not be lost sight of, however, that the enactment of such rules was as an exception to the general rule of territoriality rather than a wholesale abrogation of it, and indeed, the courts often emphasised this: see the dicta collected in Lawrence Collins, “Some Aspects of Service Out of the Jurisdiction in English Law” in Essays in International Litigation and the Conflict of Laws (Oxford University Press, 1994) at pp 227–230. Some choice expressions of caution include:

  92. (a) Société Générale de Paris v Dreyfus Brothers (1885) 29 Ch D 239, where Pearson J said (at 242–243):

  93. (b) In re Busfield (1886) 32 Ch D 123, where Cotton LJ stated that “[s]ervice out of the jurisdiction is an interference with the ordinary course of the law, for generally Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction” (at 131).

  94. (c) McDonald v Mabee 243 US 90 (1917), where Holmes J said (at 91):

  95. (d) Johnson v Taylor Bros & Company, Ltd [1920] AC 144, where Viscount Haldane stated that Order XI of the RSC 1883 (UK) “does not lay down in imperative terms a new principle of law as to be applicable in all cases” as it “leav[es] intact the old principle that by the law of England jurisdiction depends, broadly speaking, on presence within the jurisdiction” while “enabl[ing] the Court to give special leave for service out of the jurisdiction in certain circumstances” (at 153). Lord Dunedin said, to similar effect, that while “English law does not feel bound by the Roman maxim ‘Actor sequitur forum rei’” as jurisdiction is based on service, “service naturally and normally would be service within the jurisdiction”, although “there is an exception to this normal rule, and that is service out of the jurisdiction” (at 154).

  96. [54] These statements make the point that, despite the statutory extension of the court’s jurisdiction beyond the territory, it has always been that the court’s jurisdiction is limited in the first place to persons present in the territory. This was encapsulated in a distinction drawn between: (a) “the original jurisdiction which the courts exercise at common law” based on the two principles of presence and submission; and (b) “the assumed jurisdiction which was conferred upon the Courts by the [1852 Act] and is now exercised by virtue of Order 11 of [RSC 1883 (UK)] which are issued by authority of the Judicature Act”: Schmitthoff at pp 387–398. This largely corresponds to the aforesaid distinction between the court’s international jurisdiction that will be recognised by other jurisdictions and its jurisdiction under domestic law (see [52] above).

  97. [55] A clear summary of the position after the introduction of the regime for service out of the jurisdiction, and which makes clear that the relevant distinction is the defendant’s presence within or outside the territory, can be found in an earlier edition of Dicey. At the turn of the 20th century, the law on jurisdiction established by service was neatly restated as Rules 45 and 46 in A V Dicey, A Digest of the Law of England With Reference to the Conflict of Laws (Stevens & Sons, 2nd Ed, 1908) (“Dicey (2nd Ed)”) (at pp 217 and 222):

  98. The “exceptions” referred to in Rule 46 were the provisions for service out of the jurisdiction under Order XI of the RSC 1883 (UK). The text also explained that the effect of the RSC 1883 (UK) was to modify the common law position that “a writ could never be served on a defendant when out of England” and the general rule that “the Court has … no jurisdiction to entertain an action in personam against a defendant who, at the time for service of the writ, is in a foreign country”: see Dicey (2nd Ed) at p 223.

  99. (D) The significance of the defendant’s presence in the jurisdiction

  100. [56] It is unnecessary to trace the further development of the rules for service out of jurisdiction under English law as changes since the RSC 1883 (UK) have generally been supplementary rather than revolutionary. It suffices to say that Rules 45 and 46 in Dicey (2nd Ed) have been substantially retained in the current edition of Dicey (16th Ed) (at paras 11R-001, 11R-037 and 11R-097):

  101. Although Rule 35 above does not make a clear reference to service out of the jurisdiction, the commentary that follows it explains that that is the basis on which the English court “assumes jurisdiction” over a defendant. Indeed, the commentary on Rule 35 in Dicey (16th Ed) tracks the commentary on Rule 46 in Dicey (2nd Ed) which I have referred to at [55] above, as it makes the same point that jurisdiction over defendants outside the territory is based on statutory reform of the common law position (see Dicey (16th Ed) at para 11-098):

  102. [57] The modern jurisprudence of the English courts has also continued to emphasise that the court’s jurisdiction is generally territorial and the importance of the defendant’s presence in the jurisdiction. Two categories of cases are worth noting. The first category, which I address only briefly, consists of cases in which the court’s jurisdiction has been held to be established over a defendant who was served with originating process despite only being present in the jurisdiction for a transient period of time: Colt Industries Inc v Sarlie [1966] 1 WLR 440 (“Colt Industries”); HRH Maharanee Seethadevi Gaekwar of Baroda v Wildenstein [1972] 2 QB 283 (“Maharanee”). These cases confirm the territoriality of jurisdiction, and the defendant’s presence in the territory as a basis for the court’s jurisdiction over him or her, as it has been held that the duration that the defendant is in the territory for is “wholly immaterial” so long as he or she is here at the time of service: Colt Industries at 443–445.

  103. [58] Thus, in Maharanee, the claimant issued a writ in the English courts and served it on the defendant at the racecourse a year later when the defendant had come over from France to attend the Ascot horseraces. The defendant applied to set aside the writ and service. Although he was successful at first instance, the English Court of Appeal held that he had been properly served and the claimant had thus validly invoked the jurisdiction of the English courts. Lord Denning MR said (at 291):

  104. Similarly, Edmund Davies LJ (as he then was) said that the claimant “did no wrong in taking out a High Court writ … and serving it here at the first available opportunity upon the defendant”, as “[b]oth in taking it out and serving it (albeit when the defendant was only fleetingly on British soil) she was doing no more than our law permits, even though it may have ruined his day at the races” (at 294).

  105. [59] The second category of case involves the converse situation: where the claimant seeks to serve the defendant in the jurisdiction when the defendant is not present in the jurisdiction. This warrants closer attention as it directly tests the proposition, which lies at the heart of the question at hand, that a defendant who is not present in the jurisdiction must generally be served based on the rules for service out of the jurisdiction. It will be seen from the survey of the case law below that, while this proposition has at times come under doubt, there is now a consensus that it is correct.

  106. [60] The proposition above was first articulated by Lawrence Collins J (as he then was) in Chellaram v Chellaram (No 2) [2002] 3 All ER 17 (“Chellaram”). Lawrence Collins J is, of course, an esteemed authority on private international law who lends his name to the leading treatise on the topic in Dicey (16th Ed). His Lordship said that (at [47]):

  107. [61] In Chellaram, the claimants had sought to serve the defendant with a claim form and particulars of claim under provisions of the CPR (UK) which permitted service by first-class post at the “usual or last known residence” of an individual defendant and which deemed service to occur on the second day (excluding weekends and public holidays) after it was posted. The claim form and particulars of claim were sent to the defendant’s address in London on 7 June 2001 and service was therefore deemed to occur on 11 June 2001 (9 and 10 June being the weekend). The defendant was out of the jurisdiction during this time – he was in Hong Kong until 9 June 2001 and in Bombay from 10–16 June 2001 (at [36]–[38]). On these facts, Lawrence Collins J held that the defendant had not been validly served for two reasons (at [47]). The first, which is less pertinent, was that his Lordship was not satisfied that the London address was even the defendant’s “last known residence” as the defendant had only used it occasionally on the rare occasions that he visited London. The second reason, which is the material point, was that, in any event, the defendant could not be served within the jurisdiction as he was not present at the time of service.

  108. [62] Lawrence Collins J referred to the House of Lords’ decision in Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 507 (“Barclays Bank”). The essential facts of Barclays Bank were not dissimilar to those of Chellaram. The plaintiff had sought to serve a writ on the defendant under O 10 r 1(2)(b) of the Rules of the Supreme Court which provided that, as an alternative to personal service, a writ could be served by inserting a copy of it through a letter box at the defendant’s “usual or last known address”, following which service would be deemed to have occurred seven days later if the writ had come to the attention of the defendant. The defendant, who was not present in the jurisdiction at the exact time when a copy of the writ was inserted through his letter box but touched down at Heathrow airport about two hours later on the same day, argued that he had not been validly served. It was clear from the defendant’s refusal to return home – as he stayed at a hotel – and his departure on an outbound flight the next day that he had been aware of the service of the writ.

  109. [63] The House of Lords held that the service on the defendant was valid. It affirmed the proposition that “the defendant must be within the jurisdiction at the time when the writ is served” and rejected the claimants’ argument that the defendant’s presence within the jurisdiction was not necessary as it sufficed that the writ was served at a place within the jurisdiction (at 510). Lord Brightman, with whom the other members of the House agreed, considered that this would “outflank Order 11 (relating to service of process outside the jurisdiction)” (at 511). But, to justify the validity of the service on the defendant, his Lordship took an expansive view of the relevant time that the defendant had to be present in the jurisdiction, as he held that it was enough that the defendant was present in the jurisdiction on the day of service (rather than down to the exact second of service) and had acquired knowledge of the writ (at 511–512).

  110. [64] However, the fundamental rule stated in Chellaram was subsequently doubted by the English Court of Appeal in City & Country Properties Ltd v Kamali [2007] 1 WLR 1219 (“Kamali”). There, the claimant landlord had served the defendant tenant, who had absconded while in default of rent, by posting a claim form to the defendant’s business address in England. After the defendant failed to respond, the claimant proceeded to enter default judgment. The defendant applied to set aside the judgment on the basis that he had not been properly served as he had been, and was known by the claimant to have been, outside the jurisdiction when the claim form had been served.

  111. [65] Surprisingly, the English Court of Appeal held that the service on the defendant was valid. In so doing, it cast doubt on the principle in Chellaram and distinguished Barclays Bank on the basis that it had been decided based on a different civil procedure regime than the CPR (UK). The strongest repudiation of the principle was delivered by May LJ, who said that Lawrence Collins J had erred “both intrinsically and [as a matter of authority]” (at [1]). Neuberger LJ (as he then was) was more measured, as he acknowledged that “the principle relied on by Lawrence Collins J … deserves respect and serious consideration” given the judge’s eminence in this field (at [19]), but his Lordship ultimately echoed May LJ’s view that the principle in Chellaram was no longer good law under the CPR (UK) (at [32]–[33]). The final member of the court, Wilson LJ (as he then was), agreed with both May LJ and Neuberger LJ, and added that he did not think that it was right that the “inquiry into the validity of service of the claim form should depend upon where the defendant turns out to have happened to be present on the day of [service]” (at [35]).

  112. [66] Kamali was swiftly subjected to trenchant criticism by Professor Briggs, who said that it “called for nothing original or profound [but] a straightforward application of orthodox principle”, and had somehow “go[ne] awry” and was “bound to produce uncertainty and trouble”: see Adrian Briggs, “Decisions of British Courts in 2007” (2007) 78 BYIL 588 at 601–606. The following commentary is insightful (at 602):

  113. It is clear that Professor Briggs’ criticism echoed Lord Brightman’s discomfort in Barclays Bank with the possibility that a defendant outside the jurisdiction could be served within the jurisdiction in a way that “outflanked” the rules for service out of the jurisdiction (see [63] above). As Professor Briggs has commented more recently, “[t]he idea that a document can be served within the jurisdiction when the defendant is out of the jurisdiction is not one which needs to be encouraged”, and “the serious issue of jurisdiction over a defendant should be separated from the procedural, administrative, question of how a document should be served”: Private International Law in English Courts at p 165. What defines service within the jurisdiction is not the location where the writ is posted to but the location of the defendant.

  114. [67] Indeed, before a recent decision that grasped the nettle and declared Kamali to be wrongly decided, which I come to shortly, it could be seen from decisions following in the wake of Kamali that there was a clear discomfort with it, and attempts were made to confine it and to resuscitate the principle that had been articulated by Lawrence Collins J in Chellaram.

  115. [68] In SSL International plc v TTK LIG Ltd [2012] 1 WLR 1842 (“SSL International”), the English Court of Appeal held that a defendant company which did not have any presence in the jurisdiction could not be validly served by personal service of the claim form on its director. In so holding, the court affirmed the requirement that the defendant must be present in the jurisdiction to be amenable to service within it. Kamali was distinguished on the ground that the defendant there had clearly carried on business and presumably resided in the country, such that he was “by reason of his business if not his residence, subject to the jurisdiction” and his temporary absence from the jurisdiction did not change this (at [56]–[57]). What was striking, however, was that despite saying that he “entirely agree[d]” with Kamali, Stanley Burnton LJ tried to reconcile it with what Lawrence Collins J had said in Chellaram (at [57]):

  116. It is clear, despite his Lordship’s diplomacy, that Stanley Burnton LJ had turned Kamali from a repudiation of the principle in Chellaram to a qualification of it. The court in Kamali had stated that Chellaram was wrong and not that it was merely inaccurate and could be saved by an appropriate qualification. Indeed, in Clavis Liberty Fund 1 LP v Revenue and Customs Commissioners [2015] 1 WLR 2949, Warren J acknowledged that he was bound by the rationalisation of Kamali in SSL International, but commented that there was “a tension between the reasoning of May LJ … in [Kamali] and the reinstatement … of the fundamental principle stated in Chellaram [in SSL International]” (at [31]).

  117. [69] In a stroke of fortune, after I had given my decision and in the course of preparing these grounds, the English Court of Appeal squarely confronted the issue of whether a defendant’s presence in the jurisdiction was a necessary condition for service within the jurisdiction in Fridman v Agrofirma Oniks LLC [2026] EWCA Civ 139 (“Fridman”). In a comprehensive analysis, Lewison LJ, with whom Phillips LJ and Sir Launcelot Henderson agreed, decided that the principle in Chellaram was indeed correct (at [77]). His Lordship held that the principle that “a person may only be served with process in England and Wales if he is present in England and Wales is not a mere matter of procedure” but a rule “found within international law and the principle of territoriality” (at [72]). Since it was not a procedural rule but a jurisdictional one, the court in Kamali was wrong to hold that it had been superseded by the CPR (UK), and Kamali was said to have been wrongly decided on the basis that it was inconsistent with the binding authority of the House of Lords’ decision in Barclays Bank (at [76]).

  118. [70] In Fridman, the issue was whether the defendant, a Russian oligarch who had been sanctioned and thus denied entry into the United Kingdom, had been validly served by the posting of a claim form to his address in London. In the court below, it was held that the service was valid as the judge was satisfied that the defendant had not ceased to be resident within the jurisdiction despite the ban and the court was therefore entitled to exercise jurisdiction over him.

  119. [71] The English Court of Appeal held that the judge had misdirected himself on the law as “it is presence, not residence, which is the touchstone” (at [24]). Thus, on the facts, it was “legally irrelevant” that the defendant could be said to be resident in England. Furthermore, while the court accepted the qualification in SSL International that “temporary absence would not negate presence for the purposes of jurisdiction”, it held on the facts that the defendant could not be said to be merely temporarily absent from the jurisdiction as: (a) his absence was not voluntary; and (b) even though the defendant had professed an intention to return to his London address, his absence was the result of an enforced and indefinite removal from the United Kingdom that placed the possibility of return outside his control (at [79]–[94]). Accordingly, as the defendant was not present in the jurisdiction, he could not be served there and the claimants would be required to serve him out of the jurisdiction by obtaining the necessary permission to do so, subject to the possibility of applying thereafter for service by an alternative method at the London address (at [95]).

  120. [72] Fridman neatly caps off the tracing of the development of English law. To summarise, the difference between service within the jurisdiction and service out of the jurisdiction is the defendant’s presence within the jurisdiction. The exercise above demonstrates that the law has always seen the court’s jurisdiction as tied to the defendant’s presence in the jurisdiction – initially, within the court room itself, and subsequently, anywhere in the territory. Indeed, this is reflected in how the common law continues to recognise the defendant’s presence in the jurisdiction as a factor that renders a foreign court competent to give a judgment in personam against the defendant that will be recognised and enforced in other states. This general rule has, however, been modified on the domestic front by legislation since the 1852 Act that has authorised service on persons outside the jurisdiction. However, this remains an exception to the norm, as seen in how a claimant cannot serve a person outside the jurisdiction as of right but must obtain a right to do so from the court by applying for permission under the rules for service out of the jurisdiction. Those rules, as cases like Chellaram, Barclays Bank and Fridman demonstrate, cannot be circumvented just because the mode of service involves an act taking place within the jurisdiction.

  121. (A) The jurisdictional scheme under s 16(1)(a) of the SCJA

  122. [73] I return to consider the statutory framework under Singapore law. In my judgment, seeing as s 16(1)(a) of the SCJA was intended to mirror the structure of the English courts’ in personam jurisdiction (see [35] above), it is clear that jurisdiction by service of originating process “in Singapore” and “outside Singapore” under ss 16(1)(a)(i) and 16(1)(a)(ii) of the SCJA depend on the defendant’s presence in or outside Singapore:

  123. (a) Section 16(1)(a)(i) refers to the court’s jurisdiction over a defendant who is present in Singapore at the time originating process is served on him or her. Its roots lie in the common law’s requirement of appearance that was later relaxed by statute to the defendant’s presence in the jurisdiction at the time of service.

  124. (b) Section 16(1)(a)(ii) refers to the court’s jurisdiction over a defendant who is outside Singapore at the time originating process is served on him or her based on the rules for service out of the jurisdiction. Its roots lie in ss 18 and 19 of the 1852 Act and Order XI of the RSC 1883 (UK) which the former O 11 of the ROC 2014 and the current O 8 of the ROC 2021 are modern descendants of.

  125. [74] It follows that if the defendant is not present in Singapore at the time of service, a claimant that seeks to establish the jurisdiction of the court over the defendant by service must proceed under s 16(1)(a)(ii) of the SCJA and the rules for service out of the jurisdiction under O 8 of the ROC 2021.

  126. (B) The ROC 2021

  127. [75] This leads me to the subsidiary legislation under the ROC 2021 which, in my view, does not speak to a different conclusion. It is obvious that the structure of the rules mirrors the two limbs of s 16(1)(a): Order 7 is titled “Service in Singapore” and corresponds to s 16(1)(a)(i) of the SCJA, whereas Order 8 is titled “Service Out of Singapore” and maps to s 16(1)(a)(ii) of the SCJA. This linkage means that if the defendant is outside the jurisdiction, he or she must be served under the regime for service out of the jurisdiction under O 8 of the ROC 2021, upon which jurisdiction will be established under s 16(1)(a)(ii) of the SCJA. An attempt at service on a defendant who is not present in the jurisdiction outside of O 8 of the ROC 2021 would be irregular and liable to be set aside as it would constitute a flawed invocation of the court’s jurisdiction that does not satisfy either limb of s 16(1)(a) of the SCJA.

  128. [76] Indeed, my understanding of the legal framework is consistent with how the Court of Appeal saw things in Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd [2014] 3 SLR 381 (“Burgundy”) at [93]:

  129. I will examine this passage again below, but it suffices to say here that the Court of Appeal’s definition of a “foreign person” who would have to be served based on the rules for service out of the jurisdiction – formerly under O 11 of the ROC 2014 and now under O 8 of the ROC 2021 – was a person that is “not physically within the confines of Singapore”. This is wholly consistent with my conclusion that the touchstone distinguishing service within and out of the jurisdiction is the defendant’s presence in Singapore at the time of service.

  130. [77] To further make good this claim, I come to the specific rules and sub-rules of O 7 and O 8 of the ROC 2021. In my judgment, there is nothing in either O 7 or O 8 that suggests that the application of the two Orders is subject to a touchstone other than the defendant’s presence in Singapore.

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