#10000 - Seminars 1 And 2 - Conflict of Laws

SEMINARS 1-2: COMMON LAW JURISDICTION

WHEN DOES ENGLISH COURT HAVE JURISDICTION UNDER TRADITIONAL RULES?

1. English court always has discretion to accept jurisdiction under traditional rules. It will also require one of the following:

1. D is present in England when CF served

2. D submits to the court’s jurisdiction

3. Court gives permission under CPR rule 6.36 to serve CF outside jurisdiction

D IS PRESENT IN ENGLAND WHEN CF SERVED

1. So C can bring proceedings against D merely because D happens to be temporarily present in England when process is served

2. Maharanee of Baroda – process was served on D whilst he was briefly visiting England in order to attend the Ascot races

3. COMPANIES

1. s.1139 Companies Act 2006 – so English company can be served at its registered office or overseas company can be served at any place of business within the jurisdiction

How Does D Challenge This? PROCEDURE

1. Seek a stay for Jurisdictional Reasons

1. if D thinks that English court doesn’t have jurisdiction over him or the subject matter, he makes an application under CPR Part 11 for:

1. a declaration that the court has no jurisdiction and

2. a consequential order setting aside service of the claim form

2. Seek A Stay for Forum Non Conveniens

1. If D accepts that English court has jurisdiction:

1. he will then seek a stay of proceedings asking the court to refrain from exercising its jurisdiction on the ground that C should bring proceedings before the courts of another country.

2. This application is also made under CPR Part 11

2. D will apply for:

1. a declaration that the court should not exercise any jurisdiction it may have and

2. a stay of proceedings

3. Court’s power to do this

1. s.49(3) Senior Courts Act 1981 – High Court or Court of Appeal has discretion to stay proceedings either of its own motion or on the application of any person, whether party to proceedings or not. They will decide by considering TWO GROUNDS:

GROUND 1:

Forum Non Conveniens (per Spiliada). So, it must be shown, clearly or distinctly, that England is not the appropriate forum for the trial. The appropriate forum is where the matter will be ‘tried more suitably for the interests of all the parties and the ends of justice’. This is determined by a 2-stage test:

1. Stage 1 – D will argue that there is another forum with competent jurisdiction which is the natural forum for trial of the action based on the most real and substantial connection.

2. Stage 2 – if D satisfies this burden, C will argue that substantial justice will not be done in the more closely connected forum or there are special reasons why the trial should take place in England.

GROUND 2

Second ground D can seek a stay of proceedings on is that there is an agreement nominating a foreign court

1. Donohue v Armco – where there is an agreement, it’ll be up to C to show strong reasons why the court should not follow this. So stay will be granted unless C can satisfy this burden

2. Question of validity and construction undertaken by reference to the law which governs the jurisdiction agreement

D SUBMITS TO COURT’S JURISDICTION

1. Global Multimedia v Ara (UK case) – any step taken by D to defend the claim on the merits amounts to submission

2. Re Dulles’ Settlement (UK Case) – defendant who appears to contest jurisdiction does not submit

3. Once D has submitted he can’t change his mind

COURT GIVES PERMISSION FOR SERVICE OUT

1. Procedure for C

1. C makes an application for an order authorizing him to serve out of the jurisdiction under CPR Part 23.

2. It is done without notice and full and frank disclosure is required.

2. Court Are Allowed to serve Out Because

1. CPR r 6.36 – C can serve a claim form out of the jurisdiction with the permission of the court. This gives the court a discretionary power. BUT

3. Exorbitant Jurisdiction

1. Amin Rasheed – Lord Diplock said common law jurisdiction based on service out is an ‘exorbitant jurisdiction’ BUT

2. Abela (UKSC) [2013] – Lord Sumption disagreed with this view, saying that the decision is now a pragmatic one in the interests of the efficient conduct of litigation

3. Onus of persuasion lies on the party seeking to invoke it

4. The Hagen – given a restrictive approach, with ambiguity going in D’s favour

What’s needed for permission to serve outside of England

1. WITHIN SCOPE OF CPR PD 6B para 3.1

• C must state which ground is being relied upon CPR r 6.37(1)(a)

• Good arguable case that one of these ‘gateways’ apply (Seaconsar Far East (HL)). This can be less than balance of probs but C must have ‘at least the better of the argument’ (Camperdown)

2. C HAS A REASONABLE PROSPECT OF SUCCESS

• Comes from CPR r 6.37(1)(b).

• There should be a serious issue to be tried on the merits of the claim by reference to the applicable law (Seaconsar Far East HL)

• The prospect of success must be ‘more than fanciful’ (Camperdown)

• AK Investment – it’s the same test applied to summary judgment

3. ENGLAND IS THE PROPER PLACE TO BRING THE CLAIM

• this rule is found in CPR r 6.37(3). As Seaconsar shows, this requires consideration of whether England is the forum conveniens. So, C must show, clearly or distinctly, that England and Wales is the most appropriate forum for the trial of the claim. The most appropriate forum is where the matter will be ‘tried more suitably for the interests of all the parties and the ends of justice’. This is determined by applying a 2-stage test:

• Stage 1: C will need to show that England is the natural forum for the trial of the claim, in that it has the most real and substantial connection with the claim (Amin Rasheed v Kuwait).

• Stage 2: even if it can’t be shown that England is the natural forum, C will argue that justice will not be done abroad

How Does D Challenge Service Out of The Jurisdiction

1. Remember it’s done without notice, so first time D will learn about it might be once served. D needs to acknowledge service within 14 days of being served

2. D can then apply, again under CPR Par 11:

1. to have the court declare that it has no jurisdiction;

2. for consequential orders setting aside the order granting permission to serve the claim form; and

3. setting aside service of it

4. NOTE: if court agrees it declares that it has no jurisdiction, it doesn’t merely stay proceedings

3. Cherney v Deripaska - On the hearing of the application, C still has the burden of proof on all those issues which determine whether permission should have been given in the first place

Bases of Jurisdiction under CPR PD 6B para 3.1

1. CONTRACT para 3.1(6) – (8):

1. The Applicable Law

• Amin Rasheed - There must be a good arguable case that there is a contract, valid according to the rules of English law including its rules of private international law;

• Chevron International - the place of its making determined by English domestic law

• So, apply Rome I Regulation to determine what the applicable law is to contractual obligations where it concerns broad legal concepts and English domestic law for geographical elements

2. Where Contract is Made

• Entores v Miles Far East - English domestic law determines where the contract is concluded.

• Entores (HL) means that where parties use instantaneous communication, it’s where acceptance is received

• Apple Corps – if a series of negotiations, it may be said that it’s made in both countries

• Bp Exploration v Hunt – If contract was ‘substantially made’ within the jurisdiction, it counts as being made within the jurisdiction

3. Main Basis of Claim

• Global 5000 v Wadhawan (CA) – it will not suffice that a contract inter alia forms the background to the claim

4. Claim In Respect of a contract

• Alliance Bank EWCA – acknowledged that whilst previous cases have given this term a wide meaning, it must mean that the two parties were parties to a contract

5. Breach of Contract (ground 7)

• Breach by repudiatory act = the breach occurred where the act was done

• Breach by non-performance = breach was where the required act was to have been performed

• A breach is committed within the jurisdiction if the obligation not performed was, according to the terms of the contract or under the law applicable to it, required to be performed in England or if defective performance occurred in England

6. For ground (7) breach by a repudiatory act occurs where the act was done

2. TORT para 3.1(9)

1. apply English domestic law to see whether it’s a tort

2. Metall und Rohstoff v Donaldson

• Damage is sustained in England if some significant damage is sustained in England; it need not be all, nor even most, of it

• the rule used to be that the claim had to be ‘founded on a tort’ which this case held to mean by reference to rules of English law including its private international law. So one view, is that you still need a tort. Alternate view is the ground only requires that the matter be formulated as a tort (Briggs moots)

• claims based on constructive trust are not claims based on tort

• there is no particular reason why ‘sustained’ should reflect or reproduce the interpretation of where damage ‘occurred’ within Art 5(3) of Brussels I

3. Berezovsky v Michaels

• publication in England of internationally disseminated libel was a separate tort so, as long as its published in England in some regard, that’s sufficient to bring an action in England

• in order to establish jurisdiction a tort committed in the jurisdiction must be a real and substantial one

4. Vidal-Hall v Google [2014]

• High Court ruled that the misuse of personal information is in fact a tort for the purpose of paragraph 3.1(9) and personal information is given a wide definition

5. Damage is therefore interpreted much more broadly than under Art 5(3)

3. MULTIPLE DEFENDANTS para 3.1(3) – (4)

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