foreign jurisdiction Flashcards
when do you consider jurisdiction?
AT THE BEGINNING
if C (pre-action) - which country’s courts will you issue proceedings
if D - consider whether you will submit to jurisdiction or not (acknowledgement/defence)
Regulations - do C/D have to be domicile in the EU?
NO
in 2015 - art.24 was changed to add ‘regardless of domicile’ so now neither C or D have to be domicile
EXAM STRUCTURE - REGULATION
apply this first (before CL)
ONE - does the regulation apply?
TWO - do the english and welsh courts have jurisdiction? (if no - do NOT go on to CL or step 3)
THREE - English and Welsh courts accept jurisdiction? (may or may not accept or WILL if art.29/30 doesn’t apply)
REMEMBER: CONCLUDE EACH STEP
EU Regulation - when did it come into force
10 Jan 2015
STEP ONE: DOES THE REGULATION APPLY?
- Is there an international element? (“Yes the defendant is based abroad”)
2. Material Scope? PART A: - "connection" with EU MS - D's domicile - ex. jurisdiction - choice
PART B:
- type of claim
- civil/com
- not excluded
- Temporal scope
- art.66
- CF issued on or after 10th Jan 2015 (‘instituted’)
STEP TWO: does english and welsh court have jurisdiction
order of priority:
- exclusive jurisdiction (art.24) - e.g. ownership of land (but not damage to land bc that isn’t in rem)
- submission (art.26) - modified in ‘weaker party’ cases
- choice (art.25) - modified in ‘weaker party’ cases
- domicile or special jurisdiction (art.4, art.7, art.8)
- domicile = D friendly
- special = C friendly
- can only use special jurisdiction rules if D domiciled in EU MS
go bottom up in exam
if art.24,25,26 don’t apply - 1 liner saying it doesn’t apply
step three - will the english courts accept jurisdiction?
art. 29 - MUST STAY (of its own motion)
- if same cause of action, same parties
- prevent parallel proceedings
art. 30 - MAY STAY
- related actions
- what constitutes ‘related’ depends on circumstances + discretion of the court
- related if ‘expedient’ to hear/determine them together and avoid risk of irreconcilable judgements resulting from seperate proceedings
art.32 - court deemed first seized when document instituting proceedings is received by the court + service if req + C gets on with steps required (in E&W - this would be issue CF and press on with service)
COMMON LAW - PROCEDURE
ONE OF THESE 3 OPTIONS:
ONE - PRESENCE
TWO - SUBMISSION
THREE - PERMISSION FROM COURT
presence (D inside jurisdiction) - CL procedure
Proceedings (CF) served on foreign D within the jurisdiction
How?
- serve english CF on D
- D can be in jurisdiction temporarily or permanently
- D/cause of action = degree of connection with E&W
D may contest
- D can make app requesting court stay proceedings because E&W not ‘forum conveniens’
- court has discretion to stay because of this
- BOP on D
- D must show another jurisdiction that is clearly/distinctly more appropriate (otherwise request should be refused)
Maharanee v Wildensteine
D in jurisdiction 1 day each year for Ascot races
C served on D whilst D physically present within jurisdiction
= effective service (despite D having no other connection with the jurisdiction)
Dunlop Pneumatic Tyre v Actien-Gesellschaft
D was at a trade fair in London for 9 days
= D present in the jurisdiction (carrying on business in jurisdiction and capable of being served personally)
[predates CPR but still good law)
submission - CL procedure
D submits to jurisdiction of courts of england and wales
how?
- D appoints agent to accept CF (e.g. solicitor instructed to accept service, NB. if just instructing solicitor for general advice, that is not enough)
- enter appearance (i.e. take a step, e.g. submit defence
(so be clear if you don’t want to submit - do nothing more than AOS within time limit and apply under CPR 11 for declaration that E&W court lacks jurisdiction to hear dispute)
Williams & Glyn’s Bank v Astro
appearing in proceedings to contest jurisdiction does not itself constitute submission to the jurisdiction
permission from court - CL procedure (what is it)
Courts of England and Wales give C permission to serve proceedings on foreign defendant out of jurisdiction (CPR 6.36, 23)
How? 3 step test:
- Jurisdictional gateway
- reasonable prospect of success
- E&W is proper place to bring claim (BOP on C)
- CONCLUSION
permission from court (CL procedure)
- JURISDICTIONAL GATEWAY
TORT (6B PD 3.9(1))
CONTRACT (6B PD 3.1(6), (7))
NECESSARY OR PROPER PARTY (6B PD 3.1(3), (4))
- for other people
permission from court (CL procedure)
- reasonable prospect of sucess
CPR 6.36(1)(b) - low threshold
- equated to prospect of success needed to resist summary judgement (De Molestina v Ponton)
permission from court (CL procedure)
- e&w is the proper place to bring claim
BOP ON C (CPR 6.37(3))
- court’s discretion to refuse permission if E&W not proper place
- two step test
ONE - proper forum? (spiliada factors)
TWO - substantial justice reason for case to be heard in England anyway
FORUM CONVENIENS (‘NATURAL FORUM’)
Spiliada Maritime Corporation v Cansulex
- Residence/place of defendant
- Availability of witnesses – fly out?
- Location of experts – if tort case, doctors in UK?
- Cost/delay/inconvenience to proceedings
- Governing law/applicable law – BUT E&W court can apply other law
- Local knowledge – will this help?
- Where all the stuff happened?
SUBSTANTIAL JUSTICE REQUIRES CASE TO BE HELD IN E&W anyway? (if not natural forum)
Consider:
• Availability of legal aid in 1 jurisdiction but not the other?
• Risks of assassination?
• Risk of trumped up charges?
• Lack of fair trial?
• Risk of improper government interference in a different jurisdiction?
Bier v Mines de Potasse
REGULATION - SPECIAL JURISDICTION
place ‘harmful event occurred’ expanded
- where tort was committed
- OR where damage was sustained
art.8(1) co-defendants
SPECIAL JURISDICTION PROVISION
- sued in courts where co-defendant is domiciled
- if claims so closely connected it is expedient to hear and determine them together
- Sue D2 as co-defendant where you’re suing D1
WEAKER PARTY PROVISIONS - background
Regulation contains:
• Exclusions (matters expressly excluded from its scope)
• Exceptions (rules which apply as an exception to general provision of art.4)
Some contractual relationships = characterised by marked imbalance of power (weaker party needs special protections)
general rule for weaker parties
Weaker party (insured/consumer/employee) = can only be sued in Regulation MS where they are domiciled
Stronger party (insurer/vendor/employer) = can be sued in Regulation MS in which weaker party is domiciled (or where employee carries out its work)
consumer contracts
art. 17 - consumer contracts
art. 18 - consumer can bring proceedings against other party to contract (See list)
art. 19 - choice of jurisdiction clauses with consumer are only valid if
contracts of employment
art. 21 - R can be sued in… (See list)
art. 22 - employer can only bring proceedings where E is domiciled
art. 23 - choice of jurisdiction clause only valid if it gives E choice (SEe art)
Material Scope: PART A – CONNECTION
DOMICILE
RECITAL 13
- domicile based on internal law
- companies (art.63, art.63(2))
- partnerships (art.63) (Association of natural persons)
In UK – Civil Jurisdiction and Judgements Order 2001: domiciled if
(1) she/he is a resident in the UK and
(2) nature and circumstances of his/her residence indicate that he/she has a substantial connection with the UK (presumed if resident for last 3m or more)
if domicile disputed, BOP on C to show good arguable case and that D was domiciled/resident within jurisdiction at the time CF was served (Canadata trust v Stolzenberg)
EXCLUSIVE JURISDICTION (Art.24)
RECITAL 16 - close connection, sound administration of justice
certain types of cases heard in that jurisdiction regardless of domicile (so regulation could be triggered even if neither party domiciled in Reg MS)
art.24 list
Material Scope: PART B – TYPE OF CLAIM
CIVIL OR COMMERCIAL MATTER
Substance not form that matters - look beyond statements of case and consider substance of dispute
- interpreted broadly
- consider principal subject matter and if it falls within 1 exception
Material Scope: PART B – TYPE OF CLAIM
JURISDICTION UNDER REGULATION (ART.26)
SUBMISSION if ‘enter an appearance’ (unless appearance is to contest jurisdiction)
Entering an appearance = taking a step in court process
For English court – this will be if D:
- Acknowledges service of CF/POC indicating he admits/will defend the claim, or
- Files a defence
can be implicit (so D should be very careful in how it corresponds with C - if D wans to contest, raise this ASAP and all the time, tick AOS box contesting jurisdiction)
RULES OF SUBMISSION FOR WEAKER PARTY
ART.26(2) - CONSUMER OR EMPLOYEE
Regulation rules on submission does not apply until ‘weaker party’ D has been informed of:
(a) its right to contest jurisdiction
(b) the consequences that will arise if it enters (or does not enter) an appearance in the proceedings
if party commences proceedings in contravention of binding jurisdiction clause
art.31(2)
E.g. C commences proceedings in MS B (clause says MS A)
MS B’s courts must stay proceedings as soon as courts of MS A have been seised (i.e. become involved by e.g. D making an application to it) pending decision of MS A as to whether it has jurisdiction over the claim
when is permission NOT required to serve proceedings?
Regulation applies and English court has jurisdiction
This means C can proceed to serve CF on D outside jurisdiction using appropriate method of service
If C serving English CF without permission (i.e. under Regulation) – must file N510 when it issues and files its CF (confirms to the court the basis upon which it has jurisdiction over a foreign-domiciled defendant; not required pursuant to CPR 6.34)
WHEN IS PERMISSION REQUIRED to serve proceedings?
Proposed D is domiciled outside jurisdiction and is physically located outside of the jurisdiction at the time that it is sought to serve proceedings (6.36, 6.37)
English Court will decide whether it can exercise ‘exorbitant’ jurisdiction
(I.e. does English court have jurisdiction over D even though he/she/it is not physically present within the jurisdiction?)
Courts of England & Wales may give C permission to serve proceedings on foreign defendant out of jurisdiction (CPR 6.36)
application for permission to serve proceedings
just like any other interim application under CPR 23
- AN
- Draft order
- WS
- D’s address or country D is likely to be found
time limits
- THE REGULATION
SERVE CF: 6m
AOS: 21 days after POC
DEFENCE: 35 days after AOS of POC
TIME LIMITS
- COMMON LAW RULES
SERVE CF: 6m
AOS: see table in 6BPD
DEFENCE: number in table plus 14 days
MEANS OF SERVICE ABROAD (CPR 6.40)
THE WAY PERMITTED BY LAW OF THE COUNTRY IN WHICH CF IS TO BE SERVED
- consult lawyers in that country
- unable to enforce judgement obtained if do not serve correctly
DEEMED DATE OF SERVICE (CPR 6.14, 6.26) - service abroad
normal rules only apply to CF served in jurisdiction (and Scotland and NI)
if outside UK - date of service determined in accordance with particular regime pursuant to which doc was served
2 regimes:
ONE - EU SERVICE REGULATION (law of relevant MS)
TWO - Hague Service Convention (served via diplomatic/judicial channels, cert will be issued specifying date of service based on method of service being used)
If CF is to be served out of English Jurisdiction on D within regulation MS …
C must
- CF file and served with notice containing statement of grounds on which C is entitled to serve CF out of jurisdiction with court’s permission (bc REGULATION claim)
- serve copy of that notice on D when serving the CF
forum shopping
Consider all jurisdictions in which client may bring proceedings and obtain advice from foreign lawyers as necessary
factors:
• Cost of commencing/pursuing proceedings (incl. court fees/level of fees charged by local lawyers)
- Availability of interim orders (e.g. security for costs/injunctions)
- Extent of parties’ disclosure obligations
- CPR is very extensive, cards on the table approach – you must reveal even if it is adverse
- Other jurisdictions – only disclose things if it is good for you
- Location of relevant documents/witnesses
- Length of proceedings (some countries faster than others, some countries do court case management; others let parties decide so there can be deadlock)
- Level of costs recovery (some countries = full indemnity basis, some = bear own costs)
- Methods of enforcement available (if local = where assets are + less admin)
tactics for forum shopping
• Different jurisdictions = offers client different procedural advantages
BUT remember you have to act quickly
- Court first seized may be only court that can then hear the claim (in Regulation cases especially) even if another country is more suitable
- Parties might start proceedings to preclude another party commencing proceedings in another country
