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Jurisdiction Under English National Rules Notes

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Supervision 3 (Conflicts) - National rules of jurisdiction

JURISDICTION UNDER ENGLISH NATIONAL RULES National rules on jurisdiction Overview
? Discretionary: depends on whether English court is appropriate forum
? Applies to cases outside scope of Art 1 under BIR (including arbitration)
? Applies to cases involving defendants not domiciled in MS When does the English court have jurisdiction under national rules?
(1) If D is present in England when claim form is served (2) If D submits to the court's jurisdiction (3) If claim falls within grounds of jurisdiction set out in para 3.1 of Practice Direction 6B of Civil Procedure Rules Situation 1 - service of claim for 'as of right'

The method of service is to be found in CPR 6.5 ? personal service or post. Grounds for service in England A) Presence 1 - Individuals Defendant domiciled in Member State (including in England) could be served under rules laid out below but jurisdiction in English Court is determined by Brussels I regulation. Natural persons

? Natural person not domiciled in MS and jurisdiction is not determined by provisions of BIR (apply regardless of domicile), then English court has jurisdiction if claim form is served on D in England (r6.9)
? Service of claim form by leaving it with an individual (CPR r.

6.5(3)(a))
- Good service even if individual defendant was only there for short time (Maharanee of Baroda v Wildenstein - jurisdiction could be asserted based on mere transient physical presence, with

Supervision 3 (Conflicts) - National rules of jurisdiction-

no subject matter connection) Service based on last known address of individual defendant (CPR r. 6.9(2)(1)) City & Country Properties v Kamali: held, service at residence of defendant is good service notwithstanding that D had not been present in jurisdiction at the time of service. (i.e. temporary absence doesn't matter) If no longer living in England, defendant who was not present should not be subject to jurisdiction. Fraudulent induction of D to come to England to serve form would lead to form being struck out for abuse of process (Watkins v North American Land and Timber Co)

Individual challenge: jurisdiction of court on basis that there is more appropriate forum (CPR Part 11) 2 Companies Legal persons

Company domiciled in England: can be sued in England Company domiciled in another MS: may be sued in England, if English court has jurisdiction under Ch II of BIR Company not domiciled in MS, but has place of business in England: can be sued in England, in accordance with provisions of the CA 2006 or CPR r6.9.

Brussels I Regulation: A company which has a set in a Member State is domiciled in that Member State. Therefore, rules of jurisdiction in the Brussels I Regulation would apply. (NB rules below therefore only relate to method of service, rather than jurisdictional issues) CPR rule 6.9: supplements rule in CA 2006 - court's jurisdiction is as a result extended to most cases where foreign company has business presence in England. Nonforeign company 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) OR serve at registered office/on any director/secretary under

Supervision 3 (Conflicts) - National rules of jurisdiction

Companies Act 2006, s1139 Foreign company (Part 34, CA 2006) Can be served at 'any place within the jurisdiction where the corporation carries on its activities or any place of business of the company within the jurisdiction (CPR r.6.9.) Foreign company with established place of business? Required to register names and addresses of officers on which it can be served. Cannot serve on one of its officers merely by being present in England (SSL International Plc v TTK LIG Ltd and Others) Document can be served on overseas company by leaving it at/sending I by post to registered address of any person authorized to receive service of docs and resides in the UK (s1139(2)(a)) Place of business Dunlop Ltd v Cudell & Co: Facts: Defendant was German tyre company ? hired stand at exhibition at Crystal Palace. Had exclusive use of stand for 9 days and name of company was prominently displayed. Two agents took orders during that time. Held: company established place of business in England at the stand, therefore service on officer was good service. Re Oreil Ltd: must be specific location in order for it to be a 'fixed and reasonably permanent place' Cleveland Museum of Art v Capricorn: must be a place at which the company's business is done. Here, proved by evidence of drivers who regularly dropped off clients and artworks at the home of one of the directors of company dealing in art. Rakusens v Baser Ambulaj: an agent of that place can bind the company contractually. If no such agent exists, it is hard to say that it is the company's business which is being conducted from that place. 3 - Service on agent of defendant

Supervision 3 (Conflicts) - National rules of jurisdiction

CPR r. 6.12 If claim relates to: (1) Contract; (2) Entered into by an agent within the jurisdiction Then, foreign principal can be served via that agent. But agent must: (1) Still have authority of D (2) Court has granted permission 4 - Forum nonconveniens

? If jurisdiction is merely based on presence, dispute may have limited connection with England.
? Court's discretion under doctrine of forum non conveniens: stay proceedings o D must show there is another forum where parties' dispute is more closely connected o Will not be granted if substantial justice will not be done in the more closely connected forum B) Submission of defendant

? D's submission is sufficient to confer jurisdiction on the English court Yes - amounts to submission:
? Voluntary steps taken by D to defend claim on merits amounts to submission o Once submitted, cannot apply for stay on basis of forum non conveniens afterwards
? Applying to strike out part of claim (The Messiniaki Tolmi)
? Served a defence (Sage v Double A Hydraulics Ltd)
? Bringing action in England, claimant submits for any counterclaim made by a D

Supervision 3 (Conflicts) - National rules of jurisdiction

? D who counterclaims in same/for related matter in same proceedings (Glencore International AG v Metro Trading International Inc)
? A and B agree to submit to jurisdiction; A complies with terms, then B will be regarded as having submitted (CPR rule 11) No - does not amount to submission
?? If D contests jurisdiction, rather than defends claim on merits, there is no submission (Re Dulles Settlement) Challenges to exercise of jurisdiction

CPR Rule 11: two types of challenges to the jurisdiction are allowed (1) As to ground and/or manner of effecting service (2) Stays of English actions on grounds of forum non conveniens (stay of jurisdiction) C) Defendant not present in England but accepts service

CPR PD rule 6.36: enables process to be served out of the jurisdiction in cases covered by CPR PD 6B para 3.1.

? Seaconsar Far East Ltd v Bank Markazi: three conditions need to be fulfilled by the claimant otherwise no permission could be given
a. Serious issue to be tried on merits of the claim; i. If dispute arises about interpretation of gateway, it should be resolved in the defendant's favour (The Hagen) b. Within scope of gateway in CPR PD 6B para. 3 to standard of a good arguable case i. Standard of proof is "to a good arguable case" so falls short of balance of probabilities (Carvill America Incorporated v Camperdown UK Ltd) ii. Need to prove good arguable case for each issue of the claim c. England is the forum conveniens to standard of a good arguable case

Supervision 3 (Conflicts) - National rules of jurisdiction

i. Consider same factors as you would for ground of forum non conveniens

1. Close connection with England: appropriateness as forum

2. Justice will not be done abroad ii. Claimant has burden to establish England is forum conveniens Once permission is obtained, claim form served upon D abroad.
? D may seek to have permission set aside by challenging jurisdiction of the English court (CPR r. 11)
? Burden on defendant to satisfy court that another forum is more appropriate (unlike application for service of process to be set aside - burden is on claimant in that case) Gateways - CPR 6.36, PD 6B para 3.1.

If jurisdiction falls within Brussels I Regulation, service out of jurisdiction must be made of right, not through this gateway. Wide ground
- Any claim can be brought within this gateway
- If outside of Brussels I regime, then must come under one of the gateways.
- D's domicile decided according to para 9, sched 1 CJJO 2001 Claim made for Siskina v Distos: only substantive claims for injunctions can be injunction ordering brought through this gateway.
- Excludes anitsuit injunctions (i.e. restrains defendant from D to do/refrain continuing proceedings abroad) from doing an act within jurisdiction - Freezing orders - fall within different category (CPR PD 6B para 3.1(5)) Common for commercial contracts with many parties. Claim made against someone on 1) Between claimant and that person a real issue which it is whom the claim reasonable for court to try form has been/will 2) Claimant wishes to serve claim form on another person who is be served a necessary or proper party to that claim a. Had action been/would it be 'properly brought' against an 'anchor defendant' in jurisdiction?
b. If no serious issue to be tried or if action is bound to fail, 'necessary or property party' ground of jurisdiction is not available against defendant to be joined (see Multinational Gas) c. If there is serious issue to be tried, need to consider Defendant domiciled within jurisdiction

Supervision 3 (Conflicts) - National rules of jurisdiction

whether defendant to be joined is a 'necessary or proper party' d. Connection between anchor defendant and defendant to be joined is necessary for him to constitute as 'a proper party'. Within Brussels I Regulation: could use Article 6. Common law rules: wide; no need any connection between parties, particularly the D to be joined, and England

Claim is part of Part 20 claim, person to be served is a necessary/proper party to claim against Part 20 claimant Claim is made for interim remedy (s25(1) of 1982 Act

Claim made respect of a contract

Multinational Gas v Multinational Gas Service: gateaway could not be used if defendant had complete defence of the claim; had to show real issue existing between claimant and defendant. Third party claim ? D1 joins a codefendant 2. 1) Must be real issue between C and D1. 2) D2 must also be a necessary and property party.

S25, CJJA 1982.
- Freezing orders, restraining orders and orders for disclosure of evidence
- Mercedes Benz AG v Leiduck: held, there was no power in English court to permit service out of the jurisdiction for these orders where there were no substantive proceedings in England. Broader than Art 7(1) of Brussels I Regulation: six ways in which claims over a contract could be brought in England using service out rules. "in respect of a contract": autonomous meaning, does not necessarily have to have claim on contract. Applies to licencees and assignees as well.
? Necessary connection test: Global 5000 Ltd v Wadhawan: claim could be 'in respect of contract', if sufficiently legally connected to the contract (Rix LJ, C of A) Different methods (a) was made within the jurisdiction
? Standard of proof: good arguable case

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