Jurisdiction Over Foreign Matters Notes

The Regulation regulates all EU member states. The court’s permission is not required to serve a CF outside the jurisdiction if the claim is one which the UK courts have power to hear under the Regulation.

To determine whether permission is required to serve a CF outside the jurisdiction, apply the 3-step test:

Step 1: Does the Regulation apply?

This is a two-step question:

1. There must be a CONNECTION between the situation and the Regulation (CPR 6.3):

   1. There must be a link between the proceedings and the territory of member states bound by the Regulation.

   2. It cannot be internal to 1 state – there must be a CROSS-BORDER ELEMENT.

   3. There will be a connection if the defendant is domicile in a Regulation State:

      1. a.60 – a company is domicile if it has its statutory seat, central administration or principal place of business in a certain jurisdiction.

      2. a.60(2) – a company is domicile in the UK if it has its registered office in the UK.

      3. For partnerships, the domicile is where the partners are domiciled.

      4. Article 22 – exclusive jurisdiction; there will be a connection if the exclusive jurisdiction rules apply.

         1. a.22.1 – land – courts in the MS in which the property is situated have E.J.

         2. a.23 – choice of forum clause in the contract – if there is one of these, there may also be a connection; have the parties agreed the courts of a MS have jurisdiction? Is at least 1 parties an EU domicile?

2. The matter must fall within the SCOPE of the Regulation:

   1. The scope of the Regulation is referred to in Article 1.

   2. The Regulation applies in civil and commercial matters.

Step 2: Do English courts have jurisdiction to determine the claim?

This is referred to in CPR 6.33(1).

• The General Rule:

  • a.2 – a person domiciled in a MS must be sued in their MS.

  • a.3 – if someone is temporarily present in a jurisdiction, it is not possible to obtain jurisdiction simply by serving proceedings.

• The Special Jurisdiction rules: these provide alternatives to the general rule,

  • a.5.1 – contract – in matters relating to a contract, a person domiciled in a MS may be used in the place of performance of the obligation in the contract.

  • a.5.3 – tort – the place where the harmful event occurred is the place where the party may be sued.

  • a.5.5 – branch – where the branch situated

• The ‘Weaker Party’ exceptions:

  • In some contractual relationships characterised by an imbalance in power between the parties, the weaker party can only be sued if the MS they are domiciled.

• The Submission Rule:

  • a.24 – if someone enters an appearance at court, they are deemed to be submitting to the jurisdiction.

  • You DO NOT submit if you file an acknowledgement of service and indicate an intention to contest jurisdiction.

  • You DO submit if you file a defence.

• The choice of jurisdiction rule:

  • a.23 – the parties may agree that a court will have jurisdiction if they have agreed the courts of 1 MS have jurisdiction and 1 party is domicile in an EU MS.

Priority of Jurisdiction

1. Exclusive jurisdiction rule

2. Rules on submission

3. Jurisdiction clauses

4. Other rules

Step 3: will the English courts accept jurisdiction?

• The essential question is whether there are any other proceedings in existence between the parties concerning the same claim, in the courts of any MS.

• Lis pendens – a.27 – where proceedings involving the same cause of action and between the same parties are brought in the courts of different MS’s, the court first seised has jurisdiction. Any other court must decline jurisdiction in favour of that court.

  • Related actions – a.28 – the above rule applies to related actions. Actions are related where they are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments.

  • Court first seised – a.30 – a court is first seised when proceedings are instituted there.

Step 2: apply Common Law rules (if no to Step 1)

Under Common Law rules, the English courts will have jurisdiction in the following circumstances:

1. Presence – where the proceedings are served on a foreign defendant within the jurisdiction

2. Submission – where the defendant submits to the jurisdiction of the English courts

3. Permission – where the English courts give permission to serve on a D outside the jurisdiction

Presence

• The general rule is that a foreign defendant will be subject to the jurisdiction of the English courts if proceedings are served on the D whilst the D is within the jurisdiction.

  • This is irrespective of the connection with England of the D with the cause of action (there can be no link with England whatsoever).

• Forum conveniens – to prevent unsuitable...

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