jurisdiction

Question 1

when does The Hague convention apply?

Answer 1

when a Hague convention country given exclusive jurisdiction after 1 October 2015, agreement in writing

Question 2

What is an ‘asymmetric agreement

Answer 2

Asymmetric agreement = provides that one party can commence proceedings only in a specific country, but the other country can commence proceedings in that country or in any other country which would have jurisdiction under any other relevant rules (so the same rights are not given to each party)

It is unclear whether such clause would fall within the Hague Convention

Question 3

If it is concluded that the Hague Convention applies, there are 2 consequences

Answer 3

1) The court indicated as having jurisdiction will have jurisdiction and cannot decline jurisdiction on the basis that the dispute should be decided in another country, and

2) Any other court must refuse to hear the proceedings

Question 4

Under the common law when do the courts of England and waled get jurisdiction

Answer 4

1. Defendant is in the jurisdiction.
2. Court gives permission to serve outside the jurisdiction
3. a term in the contract grants them jurisdiction

Question 5

To obtain to permission to serve outside of the jurisdiction what three matters need to be established

Answer 5

1. One grounds in 6B Practice Direction 3.1
   a- D domiciled in E&W
   b- contract made in jurisdiction or contains term granting jurisdiction.
   c. claim for breach of contract committed within the jurisdiction
   d. A claim in tort where:
   - damage sustained within jurisdiction or
   - damage caused results or will be caused from an action committed or likely to be committed within jurisdiction

2) Claimant must have reasonable prospects of success

3) E&W must be the proper place for which to bring the claim

Question 6

What’s the time limit for serving a CF outside the jurisdiction

Answer 6

six months from the date of issue

Question 7

Procedure for service outside the jurisdiction

Answer 7

Service without the courts permission:
- Form N510 when it issues and files its claim form this confirms to the court the basis upon which it has jurisdiction over a foreign-domiciled defendant in circumstances where the court’s permission has not been sought to serve the claim form abroad

Service abroad with court permission:
- the claimant must make an application to the court, asking the court to allow it to serve the claim form on the defendant. This will be an interim application using the usual application notice in Form N244

Question 8

under what basis of jurisdictions do you need permission of the four to serve outside out of the jurisdiction?

Answer 8

Presence in the jurisdiction- No
Hague convention- No
Contractual provision- No
Common law- yes

Question 9

Difficulties with service, what are the options?

Answer 9

1) An order for alternative service, or

• The court may allow service by an alternative method if there is good reason to do so – i.e., where the other available methods of service would be ineffective or impossible
• An application must be made to the court setting out why service in accordance with CPR methods are not possible or why attempts to serve have been unsuccessful. The application should state the alternative method proposed.

Examples: (1) serving on solicitors acting for a party where the solicitor was not authorized to accept service, (2) placing an advert in a newspaper notifying the defendant that proceedings were committed against it

• The court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service
• Alternative service cannot be used retrospectively, and it cannot be used to remedy irregular service

2) An order for dispensing with service

• The court has discretion to dispense with service of a document
• This discretion is usually only exercised where the other side is already aware of the document – it is rare for the court to dispense of service where the other party is not aware of the proceedings

Example: if the claimant wished to make an amendment to its particulars of claim and the defendant agreed to that amendment being made, the claimant would need to make an application to court to amend the document. If the court agreed to the amendment being made, it might dispense with service – i.e., order that the claimant does not have to serve the document on the defendant because the defendant is already aware of the amendment

Question 10

why may a party dispute a courts jurisdiction

Answer 10

• The claimant alleges that the court has jurisdiction pursuant to the Hague Convention but the defendant disputes this
• The claimant obtained permission to serve proceedings out of the jurisdiction, but the defendant considers that none of the grounds for obtaining such permission are satisfied, and/or E&W courts are not the proper place for the claim to be heard
• The proceedings have been served on the defendant within the jurisdiction but there is another more appropriate forum

Question 11

what could the substance of the objection

Answer 11

• The defendant may challenge the allegation that the claim falls within the Hague Convention, or the way the Hague Convention has been interpreted

-The defendant could challenge that the common law rules apply, or that a ground for applying for permission has been established

• The defendant could argue that E&W is not the proper place for the claim to be heard – the fact that E&W courts have accepted E&W is the proper place does not prevent the defendant from challenging this

Question 12

What is the for disputing the courts jurisdiction

Answer 12

1. D must file an AOS- not ticking the box indicating it intends to consent to the jurisdiction
2. The defendant must then apply within 14 days filing the acknowledgement of service, disputing the courts jurisdiction, supporting it with evidence

Question 12

What is the for disputing the courts jurisdiction

Answer 12

1. D must file an AOS- not ticking the box indicating it intends to consent to the jurisdiction
2. The defendant must then apply within 14 days filing the acknowledgement of service, disputing the courts jurisdiction, supporting it with evidence

Question 13

when does Rome I apply?

Answer 13

Contracts entered into on and after 17 December 2009

Question 14

under Rome I what is the correct jurisdiction under Article 4?

Answer 14

If no law is decided in the contract:

Sale of Goods- Seller’s habitual residence
Provision of services- Service provider’s habitual residence
Contract relating to land- Where the land is situated
Distribution contract- Distributor’s habitual residence

• Third, if there is no choice of law and the contract does not fall into an Article 4 category, the applicable law is the law of the country of the habitual residence of the party required to effect characteristic performance of the contract
• Fourth, if the applicable law has been determined either at step 2 or 3, the court will apply a different country’s law if the contract is manifestly more closely connected with that other country

Question 15

When does Rome II apply?

Answer 15

Rome II applies to claims in tort where events giving rise to damage occur on or after 10 January 2009

Question 16

what jurisdiction is used under Rome II

Answer 16

, in the absence of a choice of law, if the claimant and defendant habitually reside in the same country, that country’s laws will apply – even if the damage happened in a different country

• A company’s habitual residence is where its ‘central administration’ is
• A natural person acting in the course of business has his habitual residence where their principal place of business is
• Third, in the absence of a choice of law and if claimant and defendant do not habitually reside in the same country, the applicable law is that of the country in which the damage occurs – not where the event giving rise to the damage occurs nor where the indirect consequences might occur
• In cases of personal injury or damage to property, the country in which the damage occurs is very likely to be the country where the injury was sustained or where the property was damaged
• Fourth, even if the applicable law has been determined by step 2 or 3, the court will apply a different country’s laws if the tort is manifestly more closely connected with that country