Secretary of State for the Home Department v Sedico Logistics Sp z oo

The Appellant (‘Sedico’) is a company incorporated under the laws of Poland. Sedico appeals against the decision of His Honour Judge Parker (‘the Judge’) dated 8 November 2024 in the County Court at Canterbury whereby he dismissed its application dated 4 November 2024 to strike out the Respondent (‘SSHD’)’s claim for leave pursuant to Part II and Schedule 1 of the Immigration and Asylum Act 1999 (‘the 1999 Act’) to sell a transporter belonging to Sedico and which had been detained by the SSHD in consequence of its non-payment of certain penalties due under the 1999 Act. In dismissing Sedico’s application the Judge held, amongst other things, that the SSHD had been entitled pursuant to CPR 6.33(3) to serve the claim out of the jurisdiction without the permission of the Court.

By Order of Sir Stephen Stewart dated 9 June 2025 Sedico was granted permission to appeal the Judge’s dismissal of its application dated 4 November 2024, on the sole ground that the Judge was wrong to conclude that permission to serve the claim out of the jurisdiction was not required. Permission was refused on the other grounds advanced and the application in respect of those other grounds has not been renewed.

Sedico’s skeleton argument was prepared by its in-house lawyer, Mr Sebastian Szulkowski (who appeared below) and did not develop the grounds. Sir Stephen Stewart also granted Sedico permission to file by 7 July 2025 (if so advised) a supplemental skeleton in respect of the ground for which permission had been granted. Sedico has not done so but has instructed MsBrenda Efurhievwe very shortly before this hearing. The Court is grateful to Ms Efurhievwe for accepting instructions at very short notice to make oral submissions; and to both Counsel for their submissions.

CPR 6.33(3) provides: ‘The claimant may serve the claim form on the defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under the 2005 Hague Convention, notwithstanding that – (a) the person against whom the claim is made is not within the jurisdiction; or (b) the facts giving rise to the claim did not occur within the jurisdiction.’ This case is concerned with limb (a) of the rule.

On behalf of the SSHD it was contended that the relevant test for whether a matter falls within the provisions of CPR 6.33(3) was identified in the judgment of Dillon LJ, with whom Stocker and Bingham LJJ agreed on this point, in In re Harrods (Buenos Aires) Ltd [1992] Ch 72. The test states that ‘…to be within Ord.11, r.1(2)(b) an enactment must, if it does not use the precise wording in the rule, at least indicate on its face that it is expressly contemplating proceedings against persons who are not within the jurisdiction of the court or where the wrongful act, neglect or default giving rise to the claim did not take place within the jurisdiction.’: p.116C.

Harrods concerned the predecessor provisions of RSC O.11, r.1(2)(b), but subsequent authority has held its successors – now CPR 6.33(3) - to be of similar effect and has likewise applied the Harrods test: see Re Banco Nacional de Cuba [2001] 1 WLR 2039; General Medical Council v. Brauwers [2010] EWHC 106 (Admin); and Dicey, Morris & Collins on the Conflict of Laws (16^th ed.) para.11-244.

In the argument below, Mr Szulkowski pointed to Owusu v. Jackson [2005] QB 801 at [16], where the European Court of Justice held that the decision in Harrods ‘…which accepted that it was possible for the English courts, applying the doctrine of forum non conveniens, to decline to exercise the jurisdiction conferred on them by article 2 of the Brussels Convention, was bad law.’ The Judge observed that neither Mr Szulkowski nor Counsel for the SSHD had suggested that Harrods had been overruled on the service point.

The factual background can be taken from the judgment. On 12 June 2023, a lorry operated by Sedico, and driven by its employee Mr Osiecki, was searched at Calais and found to contain four ‘clandestine entrants’ to the UK. On 13 June 2023 Border Force sent Sedico and the driver letters in the standard form about the incident of 12 June.

On 23 October 2023 the SSHD issued penalty notices to Sedico and the driver pursuant to the 1999 Act. Each penalty notice imposed and demanded a penalty of £24,000. By the statutory provisions to which I will refer, Sedico was jointly and severally liable for the driver’s penalty; and thus liable to pay £48,000 in total. The notices specified that payment was required by 22 December 2023, that is 60 days after the notices were issued. The penalties were not paid.

On 19 January 2024 a tractor and trailer with Polish registration numbers and belonging to Sedico were detained by the SSHD pursuant to s.36A of the 1999 Act. They remain in detention. By virtue of the interpretation provisions of the 1999 Act, the tractor and trailer constitute a ‘transporter’ (s.43(1)).

On 19 February 2024, Sedico filed in the County Court at Canterbury a notice of appeal against the penalty notices. It denied that there were any clandestine entrants in its vehicle on 12 June 2023 and raised a number of other arguments against the validity of the notices and the penalties imposed. That appeal was dismissed by a separate Order of the Judge on 8 November 2024.

On 6 March 2024, the SSHD issued both a Part 8 claim and an application notice in the same County Court by which permission was sought pursuant to Schedule 1 of the 1999 Act to sell the transporter.

On 5 July 2024, Sedico filed an Acknowledgement of Service of the Part 8 Claim Form in terms which, together with the application notice dated 4 November 2024, were treated by the Judge as not precluding a challenge to service out of the jurisdiction without permission.

Part II is headed ‘Carriers liability’. By s.32 provision is made for the imposition of penalties on persons who are responsible for ‘clandestine entrants’ as defined. By s.32(5), a ‘responsible person’ includes the owner, hirer and driver of the relevant vehicle.

Section 35 sets out procedures in respect of penalty notices (s.35(1)-(2)) and notices of objection and their consideration (s.35(3)-(7)). By s.35(7), the SSHD’s decision on the objection must be notified. By s.35(10) any sum payable to the SSHD as a penalty is recoverable as a debt. Then by s.35(12) ‘A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served – (a) in person, (b) by post, (c) by facsimile transmission, (ca) by electronic mail, or (d) in another prescribed manner.’

By The Carriers Liability Regulations 2002 (‘the 2002 Regulations’), Reg. 14(2), ‘A document issued or served on a person outside the United Kingdom for the purposes of section 35(1) or (7) of the Act, or in the course of proceedings under section 35(10) of the Act, is to be taken to have been received by that person: (a) where it is issued or served by post, on the fourth day after the day on which it was sent; (b) where it is issued or served by facsimile to the last known business facsimile number of the person concerned, on the day on which it was sent.’

Section 35A provides for appeal to the court against the imposition of a penalty notice under s.32 (and another section). By s.35A(3) the appeal is a re-hearing ‘…and shall be determined having regard to – (a) any code of practice which the court thinks relevant (which may include matters of which the Secretary of State was unaware), and (c) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).’ By s.35A(4), ‘Subsection (3) has effect despite any provision of Civil Procedure Rules.’ Throughout Part II, ‘the court’ is, in England and Wales, the county court: s.43(2).

By s.36, the SSHD has power to detain vehicles in connection with penalties. By s.36(6), ‘A document which is to be issued or served on a person outside the United Kingdom for the purposes of this section may be issued or served…’ by the various means which replicate those in s.35(12).

By s.36A, where a person has not paid a penalty by the due date, the SSHD may detain any vehicle of which the person is the owner or hirer. By s.36A(10), ‘A document which is to be issued to or served on a person outside the United Kingdom for the purposes of this section, may be issued or served…’ by the same various means which replicate ss.35(12) and 36(6). By s.36A(11), ‘The Secretary of State may by regulations provide that a document issued or served in a manner listed in subsection (10) in accordance with the regulations is to be taken to have been received at a time specified by or determined in accordance with the regulations.’

Section 37 governs the effect of detention of a ‘transporter’. Its owner may apply to the court for its release (s.37(2)-(3B)). The SSHD has the power of sale when no appeal against the imposition of the penalty is pending (s.37(4)(5A)(5B)). By s.37(6) ‘Schedule 1 applies to the sale of transporters under this section.’

By Schedule 1 para.1 of the Act, the sale of a transporter requires the leave of the court. By para.2, before applying for leave to sell a transporter, ‘the Secretary of State must take such steps as may be prescribed – (a) for bringing the proposed sale to the notice of persons whose interests may be affected by a decision of the court to grant leave; and (b) for affording to any such person an opportunity of becoming a party to the proceedings if the Secretary of State applies for leave.’

The prescribed steps under para. 2 of Schedule 1 are contained in the 2002 Regulations, Regs. 9 and 10. Regulation 9 is headed ‘Sale of transporters: notice of proposed sale’. Where the transporter is detained in England, Reg. 9(2), requires a notice to be published in the London Gazette and in one or more newspapers circulating in the locality of the detention. By Reg. 9(3), ‘At least 21 days before applying to the court the Secretary of State shall, unless it is impracticable to do so, serve a notice…on any person to whom any relevant penalty notice was addressed.’ By Reg.9(6) the notices pursuant to Regs 9(2) and (3) have to contain various details including ‘(a) (where reasonably possible) state the country of registration and registration number of the transporter’ and state that ‘…unless payment of the sum due and any connected expenses is made within 21 days of the date of publication or (as the case may be) service of the notice, the Secretary of State shall, without further notice, apply to the court for leave, under Schedule 1 to the Act, to sell the transporter’.

Reg.10 makes provision for service of documents pursuant to Reg.9(3). Reg.10(5) provides that ‘Any notice which is sent by post in accordance with this regulation to a place outside the United Kingdom shall be sent by airmail or by some other equally expeditious means.’

Having considered the test in Harrods and this statutory material, the Judge concluded as follows: ‘95. The 1999 Act does not use the precise wording of CPR 6.33(3) in expressly granting to the court power to determine claims against persons who are not within the jurisdiction. Despite that, it seems to me that when I consider the provisions of the Act which I have referred to, together with the statutory instrument made under that Act, that the legislation does contemplate proceedings against persons who are not within the jurisdiction of the court. It provides for the service of a variety of notices on persons not within the jurisdiction of the court, including the notice preliminary to the application for the sale of the vehicle. Although it does not spell out that an application for the sale of the vehicle can be made against a person outside the jurisdiction, I think that such an application is clearly contemplated by the overall scheme of the Act as I have described it. 96. Therefore, although the point has given me some difficulty, and despite an apparent lack of authority on it, it is my view that rule 6.33(3) does apply here, and that Sedico’s objection that the court should have given permission before Sedico could be served with the claim is not well founded.’

Ms Efurhievwe’s first submission took a radical turn from the argument below. She contended that the Harrods test had no application to the present case, because the claimant was a Government entity. Harrods and all related cases applied only to private persons (human or corporate) and never to a public body. The purposive approach which had been applied in Harrods and like cases did not apply to public bodies. Public bodies could not act ultra vires. In consequence, where the claimant was a Government entity or public body, it was necessary for the relevant enactment to contain express provision that the relevant claim could be served out of the jurisdiction without the permission of the Court. Nor would it suffice to show that the enactment gave that power by necessary implication.

The 1999 Act contained no such provisions, whether in respect of Schedule 1 claims or otherwise. Citing observations on statutory interpretation at the highest level (Hancock v. HMRC [2019] UKSC 24 at [24]-[25]; R v. Bentham [2005] UKHL 18 at [10], cited in Davis v. Watford BC [2018] EWCA Civ 529 at [28]), Ms Efurhievwe submitted that it would be a ‘strained interpretation’ of Part II to give the SSHD the powers for which she contended.

Ms Efurhievwe accepted that s.35(12) contemplated proceedings against a person outside the UK, but this was only in respect of a claim in debt (s.35(10)); and in any event it did not contain the necessary express provision that such a claim could be served out of the jurisdiction without the permission of the court. Likewise s.36A(10), in its context of detention of vehicles etc in default of payment, amounted at most to an ‘indication’ of proceedings against persons outside the jurisdiction. It gave the SSHD no express power to serve out without the permission of the court. The position was the same under Schedule 1 and the associated subordinate provisions of the 2002 Regulations.

Further the individual Regulations relied on by the SSHD all related to the ways in which documents might be served; they did not deal with the question of whether permission was needed to serve out of the jurisdiction. As to Regulation 14(2), this deemed the date(s) of service of the statutory notices to which it related. It did and could not provide for deemed service of the claim form. Where the claim form was to be served within the UK, CPR 6.14 governed the date of deemed service. There was no deemed date of service for a claim form to be served outside the UK.

Ms Efurhievwe added that s.35A(3)(c) of the Act provided a basis for this appellate court to take account of this new argument that the Harrods test had no application to a claim by a Government entity or public body. Its provision whereby the Court should have regard to ‘…any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware)’ applied to all proceedings in which the appellant was appealing against a public body in relation to penalty notices.

Ms Efurhievwe’s second submission is founded on CPR 6.36 and paragraph 3.1 of Practice Direction 6B; and was likewise not taken below. The former provides: ‘In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.’ Ms Efurhievwe contended that a number of the grounds identified in that paragraph applied to the Schedule 1 claim; and that in consequence the SSHD was not entitled to rely on CPR 6.33(3).

Ms Efurhievwe identified the applicable grounds as including:

Ms Efurhievwe candidly placed these two new arguments at the forefront of the appeal. In the event that the Harrods test did apply to the claim, she renewed the submission as to the effect of CPR 6.36 and the associated paragraph of the Practice Direction. If that argument failed, her essential submission was that the language of the 1999 Act and the Regulations did not clearly indicate on their face that they expressly contemplated proceedings outside the jurisdiction. On the contrary, the statutory provisions relied on were in each case focussed on the service of requisite notices before the commencement of any proceedings; rather than the issue and service of the claim form.

Ms Stinga first submits that the two new arguments, albeit pure points of law, should not be entertained by the Court. Citing the White Book at para. 52.21.1.1 and the authorities and principles identified therein, she had not had adequate time to deal with the point, which had been notified to her the afternoon before the hearing. Further it was not known if the SSHD might have acted differently in the appeal if the first argument had been taken at the outset.

In any event, there was no basis for the contention that the Harrods test had no application to a claim by a Government entity or public body. The submission was no more than an assertion, unsupported by any authority. Further it was at odds with CPR 66.2 which provides that ‘These Rules and their practice directions apply to civil proceedings by or against the Crown and to other proceedings to which the Crown is a party unless this Part, a practice direction or any other enactment provides otherwise’. No such contrary provision had been suggested on behalf of Sedico.

There was likewise no basis for the second argument relating to CPR 6.36 and the associated provision of PD 6B. As CPR 6.36 made clear, it only applied if CPR 6.33 (or 6.32) did not. Even if a gateway under CPR 6.36 and para.3.1 of PD 6B was satisfied, it did not follow that CPR 6.33(3) had no application.

Turning to the Harrods test, Ms Stinga duly acknowledged that the statutory provisions did not ‘use the precise wording in the rule’ (i.e. 6.33(3)). Accordingly the question was whether the enactment ‘at least indicate[s] on its face that it is expressly contemplating proceedings against persons who are not within the jurisdiction of the court.’ That test was not generous, but was wide enough to allow the provisions of Part II of the 1999 Act to fall within it.

The Harrods test had been followed and remained good law: see Cuba;Brauwers; Dicey, Morris & Collins. In Owusu the European Court of Justice had not followed Harrods on a quite separate point.

A clear example of a statutory provision which met the Harrods test was found in s.6 Protection of Trading Interests Act 1980: see Dicey, Morris & Collins at 11-243. The section concerned the recovery by a qualifying defendant of awards of multiple damages made against it by a court of an overseas country. By s.6(5) ‘A court in the United Kingdom may entertain proceedings on a claim under this section notwithstanding that the person against whom the proceedings are brought is not within the jurisdiction.’ That provision did not state that such proceedings could be served outside the jurisdiction without the permission of the court; but did on its face expressly contemplate proceedings against persons who were not within the jurisdiction.

This was similar to the position under the 1999 Act. It was artificial to draw a distinction between ‘proceedings’ thereunder and ‘notices’ which were the precursor of such proceedings.

Turning to the statutory provisions, s.35(12) expressly contemplated that defendants to a claim of debt under s.35(1) were likely to be outside the jurisdiction; and duly made provision for notices to be served outside the UK. The Judge referred only to s.35(12) as it related to documents to be issued or served for the purpose of sub-sections (1) or (7): see at [82]. However its reference to documents issued or served in the course of proceedings under sub-section (10) was of even greater force.

As the Judge also noted [86], Reg.14(2) made provision for the deemed date of service of documents, including those served on a person outside the UK for the purpose of proceedings under s.35(10).

Section 36(6) did not apply directly to the present case, as the Judge recognised [83], because the original transporter carrying the clandestine entrants was not detained. However s.36(6) dealt with how, for the purpose of the section, a document was to be served on a person outside the UK.

Section 36A did apply to this case, as the Judge noted [84]-[85]. This was because another transporter owned by Sedico had been detained in default of payment of the penalty notice. Subsections (10) and (11) were provisions which contemplated proceedings against persons outside the UK in order to recover unpaid penalties. Ms Stinga acknowledged that subsection (10) and the rest of the section did not identify the documents to be served.

Section 37 applied to this case, because by s.37(7) it applied to a transporter detained under s.36A as well as to a one detained under s.36. Subsections (4)-(5B) related to the SSHD’s power of sale; and sub-section (6) introduced the provisions to obtain the Court’s leave for a sale under Schedule 1.

Schedule 1 governed this claim for leave to sell the detained transporter; and paragraph 2 thereof introduced the prescribed steps under the 2002 Regulations for giving notice of the proposed sale to any person whose interest may be affected by a decision of the court to grant leave; and for affording any such person the opportunity of becoming a party to the proceedings if the SSHD applied for leave.

Regulations 9 and 10 then respectively identified the prescribed steps for giving notice of the proposed sale (Reg.9) and for service of notices pursuant to Reg.9(3): Reg.10. As the Judge noted ([93]-[94]), Reg.10(4) included provision for service of documents on a company registered outside the UK or of an unincorporated association or partnership carrying on business outside the UK, if it has an office within the UK; and Reg.10(5) specified the means of sending any such notice by post to a place outside the UK.

Ms Stinga emphasised that the Harrods test did not require that the enactment be in terms that authorised service out of the jurisdiction without permission; nor was it her case that the 1999 Act or subordinate Regulations did so by necessary implication. It was unnecessary for her case to go so far. All these identified provisions of the Act and the 2002 Regulations, including Schedule 1 and Regulations thereunder, were expressly contemplating proceedings on persons outside the UK, within the meaning of the Harrods test. It did not matter that none of these provisions were directed to the issue and service of a claim form. Thus the Judge’s conclusion [95]-[96] was correct.

I have allowed Sedico’s two and very late new arguments to be heard and considered, because I am satisfied that they cause no prejudice to the respondent SSHD. In my judgment the proposition that the Harrods test has no application to a claimant which is a Government entity or other public body is untenable. It is not supported by any authority or coherent principle. I see no reason why a different and more stringent test should apply to this claim by the SSHD. Nor was any answer advanced to Ms Stinga’s reliance on CPR 66.2.

I also consider the second argument to be untenable. As CPR 6.36 makes clear, if the claim falls within CPR 6.33 so that permission to serve out of the jurisdiction is not required, it is unnecessary to consider the grounds or ‘gateways’ under CPR 6.36 and paragraph 3.1 of PD 6B. Equally, the fact (if so) that a claim satisfies one or more of those gateways cannot bar a claimant from reliance on CPR 6.33(3) where the claim also meets the Harrods test.

For completeness I should add that s.35A(3)(c) of the 1999 Act can have no application to the question of whether these new arguments should be heard. That provision relates to appeals against penalty notices. Sedico’s appeal against the penalty notice was dismissed by the Judge and is not the subject of this appeal.

Returning to the principal question, I am satisfied that the Judge was right to conclude that this claim met the Harrods test; for the essential and succinct reasons which he gave at [95]. In further support of that conclusion I make the following observations.

Part II of the 1999 Act is headed ‘carriers liability’ and is focussed on the problem of vehicles etc entering the UK with clandestine entrants on board. It is therefore to be expected that the carriers etc on whom liability may be imposed in various ways may well be outside the jurisdiction at the time of issue and service of requisite statutory notices or of proceedings.

The scheme of Part II then provides for the issue and service of a variety of notices and other documents on persons who are outside the jurisdiction. These include notices or other documents to be issued or served (1) ‘in the course of proceedings’ for the recovery of unpaid penalties as a debt (s.35(10)(12); Reg.14(2)); (2) for the purpose of the s.36 power to detain vehicles in connection with penalty notices (s.36(6)); (3) for the purposes of the s.36A power to detain vehicles in default of payment of penalties (s.36A(10)); and (4) before making an application to the court under Schedule 1 for leave to sell a transporter; and so as to afford the recipient of the notice of proposed sale an opportunity of becoming a party to the proceedings if there is an application for leave (Schedule 1, para.2; Regs. 9 and 10, in particular 10(5)). This case is concerned with a claim under Schedule 1; but it is relevant that its provisions are in harmony with the overall scheme of Part II.

True it is that none of these provisions, whether expressly or by implication, authorise the service of claim forms (in this case pursuant to Schedule 1) outside the jurisdiction without the permission of the court. However that is not required by the Harrods test. It is immaterial that the provisions of Schedule 1 relate only to the issue and service of notices and documents before the commencement of proceedings: cf. s.35(12) as applied to ‘proceedings’ under s.35(10). In my judgment it is clear that Schedule 1, read with the subordinate Regulations 9 and 10 and considered in the overall context of the scheme of Part II, expressly contemplates claims against persons outside the jurisdiction for leave to sell their transporters.

For all these reasons, and in agreement with the Judge, I conclude that this claim falls within CPR 6.33(3); and thus that permission to serve the claim form out of the jurisdiction was not required. The appeal must therefore be dismissed.