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COMMON LAW JURISDICTION
1. Service on D (or consent) as basis of jurisdiction:
a. D in England: Under national law if D can be served with the claim form while in England, then the court has jurisdiction over D 'as of right'.
This is based on a territorial view of the court's jurisdiction. It has been criticised as exorbitant as it is not, in principle, limited to subject-matter jurisdiction.
b. Service out: The English court takes subject-matter juirisdiction over absent Ds under CPR 6.36 and PD
6B by permitting sevice of the claim form on D out of the territorial jurisdiction in some cases (serviceout cases).
c. Consent: Alternatively, where D has consented to the English court's jurisdiction (e.g. in contract, by submission or counterclaim) the English court will have jurisdiction.
2. Adjudicatory discretion: Where there is more than one available forum, D may contest the jurisdiction. The
English court can choose whether or not to exercise its jurisdiction, based on the doctrine of forum conveniens—
i.e. the appropriateness of trial in England. The exercise of national jurisdiction is therefore a matter of discretion.
Many other systems of law mistrust judicial discretion as uncertain and unjust.
Compare to BIRR: The discretionary approach can be compared to the rules of jurisdiction under BIRR. Where the Recast Regulation does apply that Regulation determines the grounds for jurisdiction. The method of service of the claim form is dealt with under CPR 6.3, 6.33 and
6.34. There is no discretion except as permitted under BIRR (as in Art.30).
Forum conveniens—i.e. discretion in the national rules—arises in one of the following situations:
a. Stays: Where proceedings have been served on a D as of right (e.g. personal service on individual in the jurisdiction, e.g. Abramovich): D can still apply for a stay of proceedings validly commenced in England on the basis that there is another clearly more appropriate forum in which the case can be heard— i.e.
asking the court not to exercise discretion; or b. Service out: Where D cannot be served within the territory of the jurisdiction, C applies for permission to serve the claim form out of the jurisdiction under CPR 6.36 and PD 6B:
i. The case must fall within one of the grounds laid out in PD 6B r.3.1; and ii. C must show a sufficiently cogent case on the merits (i.e. the substance) of the claim; and iii. The court must be satisfied that England is the proper place in which to bring the claim (CPR
6.37(3))—essentially discretionary, i.e. C is asking the court to exercise its discretion.
Service of the claim form 'as of right'
a. Method of service: CPR 6.3—e.g. personal service, by post, by fax. There are detailed rules e.g. filming of personal service (but we don't need to know that much detail).
b. Ground of jurisdiction: physical presence: Maharanee of Baroda v Wildenstein (high point): English court may assert jurisdiction based on mere transient physical presence, with no subject-matter connection.
FACTS: Maharanee bought a painting in Paris from Wildenstein. Maharanee was also a resident in
France (i.e. French D; French C). There was a dispute about whether the painting was what
Wildenstein claimed it was. Wildenstein was only in the UK for a few days.
HELD: Merely by being here in England, he had subjected himself to the jurisdiction of the English court, notwithstanding there was no predictable connection between the transaction for purchase of this painting in France by French D and French C, and English courts.
a. Companies incorporated or registered in England and Wales : Serve at principal office or at any place where it carries on its activities which has a real connection with the claim (CPR 6.9 and Cranfield v
Bridgegrove) or at registered office or on any director or secretary under s.1139 Companies Act 2006.
This basis of jurisdiction is limited to companies incorporated in England: Sea Assets v PT Garuda
8. b. Foreign companies (i.e. 'any other company' in CPR 6.9): Can be served at any place where it carries on its activities or any place of business within the jurisdiction.
i. A reasonably fixed & permanent place which is obvious as a place at which the company's business is done: Dunlop v Cudell:
FACTS: The foreign company—Cudell—were exhibiting and selling cars at a stall at a trade fair. C claimed the car had tyres which infringed… Were C present? They had a stall at the trade fair for 9 days.
HELD: They were carrying on their business. They were at a fixed place—had hired a stall at the trade fair—and even if they were only there for a limited time, that was reasonably permanent.
ii. Usually need agent who can bind the company: Lakah v Al-Jazeera: In order to be the foreign company's place of business, usually need an agent who can bind the foreign company. The agent must be doing the foreign company's business, not its own business, done at that place.
FACTS: C wanted English courts to assert jurisdiction over the big Al-Jazeera, claiming that its associated company (Al-Jazeera UK) were doing business in England.
HELD: This associated company could not bind the foreign company to contract. Al-Jazeera
UK was not therefore doing Al-Jazeera's business.
iii. (The alternative jurisdiction taken over foreign companies under Companies Act 2006 is now less important—so don't need to worry too much about it. CPR 6.9 is permissible and wider: Saab v
Saudi American Bank.)
iv. Doesn't need to be matters related to place of business: Jurisdiction on this ground is not apparently limited to matters related to the place of business (cp Art.7(5) BIRR).
v. Alternatively: Person in senior position: Can serve on a person in a 'senior position' in the company (CPR R 6.5(3)(b)): 'A claim form is served personally on… (b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation.' (cite Lakah v Al-Jazeera).
Mere presence? Mere presence within the territory of a person in a senior position is probably sufficient to ground jurisdiction; after all, exercise of jurisdiction is subject to the discretion.
Presence jurisdiction over both individuals and companies is criticised as exorbitant. It is not,
at first blush, limited by subject-matter or other connection with the English court. The doctrine of forum non conveniens is a response to these criticisms (because it would supposedly ensure that England does not exercise jurisdiction where no sufficient connection) but is not necessarily the whole answer. A D has to come to England to contest the jurisdiction. The uncertainty and cost of doing so may force foreign Ds to settle disputes and give too great an advantage to Cs.
D not present in England but accepts service: For example, by providing an address for service in contract
(CPR Rule 6.11) or by authorising his solicitors (CPR Rule 6.7). A jurisdiction agreement usually provides an address in England for service. That provides both the ground & method of service.
D not present in England but has submitted to the court's jurisdiction: i.e. by appearing and arguing merits of the case (not merely arguing as to the English court's jurisdiction). CPR Part 11 provides the procedure for challenging jurisdiction (see below).
a. Asking for stay of proceedings ≠ submitting: Williams & Glyns v Astro.
D not present in England but has provided a method for service in a contract: Must serve in accordance with the contract (CPR R 6.11). This is a common feature of a jurisdiction agreement but can be free-standing. Or if a solicitor has been authorised to accept service on D's behalf (CPR 6.7).
Contract made in England through an agent in England: in a matter relating to that contract, serve on the agent: CPR R 6.12.
If D counterclaims: C abroad subjects himself or herself to the jurisdiction of the English court if D
counterclaims in the same proceedings of a related matter: High Commr for India v Ghosh.
Challenges to exercise of jurisdiction based on service within jurisdiction: CPR Rule 11 provides two types of challenge:
a. As to the ground and/or the manner of effecting service: e.g. D did not in fact have a place of business or that C did not in fact serve in the correct manner.
b. Stays of English actions on grounds of forum non conveniens: CPR R 11 also permits a challenge to the jurisdiction on the basis that although everything has been formally done to serve the claim form within the jurisdiction, England is not the proper place to hear the claim. Where D has been served with claim form within the jurisdiction English court may stay its own proceedings at D's application.
2 i. The D has to show that there is another clearly more appropriate forum in which justice can be done at substantially less expense and inconvenience.
ii. Backstop provision/second stage: Even if another clearly more appropriate forum is shown,
proceedings will continue in England if C can show that C will be deprived of a ' legitimate juridical advantage' in that court which is available to the C in England: The Spiliada.
Service of claim form on Ds not present in England
1. Apply for permission in writing: If D is not present in England, C will have to apply for permission 1 to serve the proceedings outside the jurisdiction. An application must be made in accordance with CPR 6.37.
a. Permission to serve out is not necessary if the claim is within BIRR (CPR 6.33(v)), e.g.
if the matter is within Art.24 BIRR, or
D is domiciled in England, or
a jurisdiction agreement conferring jurisdiction (exclusively or non-exclusively) on the English court within Art.25 BIRR, or
where serving on a D domiciled in another MS in respect of a claim within the BIRR where the
English court has jurisdiction under that Regulation (e.g. under Art.7, 8).
2. Procedure for application: CPR 6.37.
'(1) An application for permission under rule 6.36 must set out—
(a) which ground in paragraph 3.1 of Practice Direction 6B is relied on [gateway; first requirement];
(b) that the claimant believes that the claim has a reasonable prospect of success [serious issue to be tried requirement]; and
(c) the defendant's address or, if not known, in what place the defendant is, or is likely, to be found.
(2) Where the application is made in respect of a claim referred to in paragraph 3.1.(3) [necessary and proper party gateway] of Practice Direction 6B, the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try.
(3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim [i.e. England is the forum conveniens].'
3. Once served, D can challenge the jurisdiction of the court and ask for the permissiont
serve to be set aside
(under CPR R 11) at which point there is a hearing with both sides presenting evidence and argument.
4. Test for service out cases, outlined in AK Investment v Kyrgyz (Lord Collins):
a. First, C must satisfy the court that there is a serious issue to be tried in relation to the foreign D, i.e. a substantial question of law or fact or both, in relation to which C has a real, as opposed to fanciful,
prospect of success: CPR R 6.37(1)(b).
Not stringent: Seaconsar v Bank Markazi: Serious issue to be tried on the substance, only just above standard necessary to avoid being struck out. This is not a very stringent test. Its purpose is to prevent extremely weak cases on the merits being used to drag Ds to England.
b. Second, C must also satisfy the court that there is a good arguable case that the case falls within one or more of the 'gateways' (CPR R 6.36 and PD 6B). At this early stage there is little opportunity to properly test the evidence (no substantial disclosure of documents). Cross-examination of witnesses is not generally available. Again the purpose is to protect Ds from being dragged into the jurisdiction of the
English court on mere allegations.
In Canada Trust v Stolzenberg (No.2) the limitations of the interlocutory process were acknowledged: 'It is also right to remember that the "good arguable case" test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a "trial". "Good arguable case" reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.'
But in Brownlie v Four Seasons, Lord Sumption crucially clarified that at least a plausible evidential basis is required: He disapproved of the 'Canada Trust gloss': '(i) that the C must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue 1
NB no longer called 'leave'.
3 and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.'
o FACTS: B's husband died in a car accident in Egypt. She tried to sue the parent company in contract, alleging it was the parent company's fault for choosing a bad driver. (1) Contract was made in England; (2) Gateway in tort: damage was sustained within the jurisdiction (England)
—but it might seem problematic because whether this was established depended on the substance of the case, which wasn't easily available at this point in the case.
o HELD (relevant part): Need at least a plausible evidential basis in order to make out a good arguable case.
o The SC applied this version of the test to a BIRR case in Goldman Sachs v Novo Banco.
The test operates both at the ex parte stage when C is asking for permission, and also at the inter partes stage where there may be a disputed issue of fact.
At one level, all that a judge has to do is to be reasonably sure that C has made out C's case that the dispute should be heard in England. However, without the direction of a "good arguable case"
and an understanding of the contexts in which jurisdiction can be contested, first instance judges may be too quick to permit Cs to commence proceedings in England. A D is then placed at an unwarranted disadvantage and could be forced to settle.
Rogerson: The 'good arguable case' also functions to establish a sufficient connection between the dispute and the forum so that jurisdiction is predictable for D.
c. Third, CPR 6.37(3) requires C to satisfy the court that in all the circumstances England is clearly or distinctly the appropriate forum (the forum conveniens) for the trial of the dispute. C has to show that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction, i.e. that England is the 'forum in which the case can be most suitably tried for the interests of all the parties and for the ends of justice' (Lord Goff, The Spiliada).
Note Lord Sumption in Abela v Baadaran: the court per curiam held that the service out jurisdiction is not exorbitant and that the forum conveniens analysis prevented cases which had no sufficient connection from being tried in England. This emphasis on forum conveniens as a control on the exercise of jurisdiction in service out cases also places the burden on D to challenge jurisdiction.
5. Gateways in CPR 6.36, PD 6B para.3.1 (previously known as grounds or heads of jurisdiction) 2: these cover personal, subject-matter, collateral, and consensual grounds of jurisdiction. C must limit the claim to the basis of jurisdiction, e.g. the contract gateway does not also cover claims in tort; nor does a breach of contract within the jurisdiction include breaches outside the jurisdiction.
a. Remedy against a person domiciled within the jurisdiction: CPR PD 6B r 3.1(1): 'A claim is made for a remedy against a person domiciled within the jurisdiction'. This gateway covers matters not within the scope of BIRR. If a matter is within the BIRR then that Regulation determines jurisdiction and permission to serve out is unnecessary.
b. Injunctions: CPR PD 6B r.3.1(2): 'A claim is made for an injunction ordering D to do or refrain from doing an act within the jurisdiction.'
c. Necessary and proper parties and third parties: CPR PD 6B r 3.1(3) & (4): '(3) A claim is made against a person ("the defendant") on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and— -There is between the claimant and defendant a real issue which it is reasonable for the court to try; and -The claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim. (4) A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.'
i. E.g. covers cases like many parties to a contract, manufacturer & seller of goods, insurer &
broker. It mirrors Art.8(1) BIRR, but CPR is broader: under Art.8(1) the anchor D must have been sued in the court of its domicile; under CPR the anchor D can itself have been served out of the jurisdiction under any head except for the necessary and proper party head itself.
The second D may be unfairly surprised, and dragged into a case involving a first D under a wide head of initial jurisdiction.
ii. Steps to consider (Lord Collins, AK Investment v Kyrgyz PC):
1. Had an action been or would it be 'properly brought' against an anchor D? This will not be the case if there is no serious issue to be tried against the anchor D (or it is bound to fail). But C's motive in suing the anchor D is merely a factor in the exercise of
2 These often have analogies with BIRR bases of jurisdiction, but they are not congruent.
4 discretion (i.e. does not go to the gateway, which is established so long as the other requirements are met)3.
2. Is the D to be joined a 'necessary or proper party'? This has 2 elements: (i) Is there a serious issue to be tried against the D, and (ii) Is there a sufficient connection between the
Ds—is there 'one investigation' against both Ds, or are the claims 'closely bound up'
with one another?
iii. Gateway (4) mirrors Art.8(2) BIRR.
d. Interim remedies: CPR PD 6B r 3.1(5): 'A claim is made for an interim remedy under s.25(1) Civil
Jurisdiction and Judgments Act 1982.' (s.25 CJJA1982 gives the English court power to make interim orders in support of foreign proceedings—most commonly freezing orders, restraining orders, and orders for disclosure of evidence.)
i. England must be proper place for trial: In principle, C must still show that England is the proper place for trial (CPR r 6.37). This might be satisfied if there are assets in England or an
English jurisdiction or arbitration agreement to be upheld.
ii. Might refuse if inexpedient: The court may refuse to grant a freezing order if it is inexpedient to grant it due to the lack of jurisdiction over the substance of the case: Credit Suisse.
The HL in The Siskina and the PC in Mercedes Benz v Leiduck had held that there was no power in the English court to permit service out of the jurisdiction for these orders where there were no substantive proceedings in England. The effect of these decisions was reversed by s.25(3) CJJA1982 for proceedings both in MSs and, later, in third states (i.e. non EU MSs).
However, in principle C must still show that England is the proper place for trial; after all, the
English courot should not be 'the policeman of the world' (Airbus v Patel).
e. Claims over matters relating to a contract: CPR PD 6B r 3.1(6)-(8):
i. One of the following:
1. In respect of a contract: '(6) A claim is made in respect of a contract where the contract
(a) was made within the jurisdiction;
(b) was made by or through an agent trading or residing within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.'
2. Breach of contract: '(7) A claim is made in respect of a breach of contract committed within the jurisdiction.
3. Declaration that no contract exists : '(8) A claim is made for a declaration that no contract exists where, if the contract was found to exist, it would comply with the conditions set out in paragraph (6).'
ii. Claim must relate directly to the contract being relied upon for the gateway: not enough that the contract relied upon for jurisdiction merely forms part of the background matrix (might be problematic for related contracts e.g. guarantees and reinsurance contracts).
1. E.g. failed when claim was actually based on underlying contract of guarantee:
Global 500 v Wadhawan: 'The guarantee did not contain an express choice of English law but the contract which contained the obligations which were to be guaranteed did have that express choice. C therefore wanted to rely on the gateway that its claim was in respect of the contract governed by English law, even though its actual claim was based on the separate contract of guarantee. A further difficulty arose because it was not clear that the claim on the contract of guarantee could be proved to the standard of the good arguable case and in the event it failed even to satisfy the lower standard of the serious issue to be tried.'
Must be sufficiently legally connected (Rix LJ)
iii. Where a contract is made is determined according to English law, i.e. the lex fora (the postal rule etc.).
1. E.g. Sharab v HRH Prince Al-Waleed CA:
FACTS: Sharab sued Al-Waleed on the basis that she should get commission for sale of the Prince's aircraft. Alleged that agreement was made with the Prince's agent at a restaurant in UK, and ratified in Libya. Sharab wanted to sue in the UK.
HELD: Good arguable case that the agreement was made orally in England.
3 Cf. Art.8(2) BIRR, which is more constrained.
2. But cf. obiter in Marconi v PT Pan: CA suggested obiter that a contract governed by a foreign law is made in the place determined according to those foreign rules; there is no explanation for this assumption and it could be considered per incuriam.
3. CA seemed to shift away from applying law of lex fori in Brownlie v Four Seasons
CA (point not taken on appeal): CA said that the case got through the gateway. CA, not knowing Egyptian law, presumed that Egyptian law was the same as English law, and applied it. The fact that the CA even considered Egyptian law shows a shift away from using the law of lex fori, and to use foreign law.
Rogerson (2013): 'In an age where travel and communications were difficult, the place where a contract was made was clearly a very important factor. It was not a fortuitous or haphazard place, as contracting parties would have to make an effort to consider where to meet and contract. There would have been a connection with England and also the parties would have expected that the English court should exercise its adjudicatory power over them and the contract. It is much more difficult to justify the
English court exercising its adjudicatory power based on this gateway in the modern era. A contract may be concluded here for no better reason than that Heathrow is a hub for the travelling businessman or where he opened his laptop to send an email. This is therefore a rather wide gateway of jurisdiction. The courts should be alert to abuse where a contract has been made rather fortuitously in England, where there may be very little connection between the dispute and England.'
E.g. Sharab v Al-Waleed: The contract was made orally with Prince's agent in a restaurant in UK, but ratified in Libya. Rogerson calls this an 'egregious example
of the use of this gateway'.
Emphasis on forum conveniens stage: 'The lack of real connection should be taken into account in deciding upon the exercise of the court's discretion.'
iv. If made in multiple places, must be substantially made here: Apple v Apple.
v. '[Made] by or through an agent' for a principal outside the territory: could be served either on the agent (CPR r 6.12) in some circumstances or on the principal abroad through this gateway.
Court's permission is required in both cases, but C here must additionally show that England is the proper place for trial.
1. Agent might not need authority to conclude contracts: In National Mortgage v
Gosselin, principal was served abroad notwithstanding that the agent had no authority to conclude contracts. Nevertheless, the contract was made through the agent who had obtained the order and sent info to the C.
vi. Contract 'governed by English law': Samcrete Egypt v Land Rover CA: Show that a contract,
governed by English law to a good arguable case standard: (a) an express choice of English law,
otherwise (b) use Rome I Regulation on law applicable to contractual obligations.
Rogerson: This gateway should be limited to only express choices of English law, on grounds of predictability, and reducing litigational gameplay and costs. But that is not the law yet.
vii. Agreement as to service within the jurisdiction: (as is often the case in commercial contracts)
then proceedings can be served as of right (CPR 6.11).
1. Only outside BIRR: Art.25 BIRR now removes the need for this gateway except where the jurisdiction agreement covers matters not within the scope of the BIRR.
2. In such cases, unless D is present in the jurisdiction and can be served as of right, the fact that there is a jurisdiction agreement in favour of the English courts does not, without more, give the English courts jurisdiction. Under CPR PD 6B 3.1(6)(d) the 'problem' is solved by allowing the fact that there is a jurisdiction agreement to provide a ground for service on the D outside the jurisdiction.
viii. Breaches of contract committed within the jurisdiction: C has to show a good arguable case that (1) there was a contract, (2) that it was breached, and (3) that the breach was committed (or that performance should have occurred) within the jurisdiction. This is clear where the place of performance is expressly stated; if not, the place of performance has to be determined preferably by the application of the applicable law of the contract (as in Tessili v Dunlop under Art.7(1)(a)).
Claims made in tort: CPR PD 6B r 3.1(9): '(9) A claim is made in tort where (a) Damage was sustained within the jurisdiction; or (b) The damage sustained resulted from an act committed within the jurisdiction.'
i. (This gateway has a strong similarity to Art.7(2) BIRR. In principle a claim in tort can arise under English law or under another law (determined according to Rome II Regulation).)
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