Jurisdiction

Question 1

What is the difference between a court having jurisdiction and the laws that will apply?

Answer 1

English and Welsh court can conclude it has jurisdiction to hear a dispute but this does not mean that English and Welsh law will apply, for example, French substantive law could apply.

Question 2

Choice of laws or conflict of laws is about what?

Answer 2

Whether a dispute is determined according to the law of England and Wales, or some other country’s law.

Question 3

What is the connection between jurisdiction and applicable law?

Answer 3

The two things should be considered separately.

Question 4

The question of ‘jurisdiction’ is concerned with…

Answer 4

Which courts can determine a dispute.

Question 5

What is the reference date for whether the Hague Convention on Choice of Court Agreements applies?

Answer 5

1 January 2021 must be considered

Only applies to choice of court agreements concluded on or after 1 October 2015.

Question 6

What is the purpose of the Hague Convention on Choice of Court Agreements?

Answer 6

Provide certainty for commercial parties that wish to choose a particular country’s courts to determine their disputes regardless of where the dispute takes place or where the parties are based.

Question 7

What are the questions in a Hague Convention Approach to assess whether the parties have effectively give jurisdiction to the courts of England and Wales?

Answer 7

1. Is the matter a civil or commercial matter?
2. Is it an excluded matter?
3. Does the clause give jurisdiction to a Contracting State?
4. Is jurisdiction given exclusively?
5. Is the agreement concluded/documented/evidenced in writing?
6. Is the agreement an ‘asymmetric’ one?

Question 8

What matters does the Hague Convention cover?

Answer 8

Commercial and civil matters.

Public and criminal disputes are not covered.

Question 9

What disputes are excluded from the Hague Convention?

Answer 9

Disputes with consumers and employment matters.

Others.

Question 10

What are the contracting states to the hague convention?

Answer 10

UK
All EU MS
Mexico
Singapore
Montenegro

If not a contracting state (e.g. Canada, USA) then will need to find the answer to whether it is effective elsewhere. E.g. common law

Question 11

Can you use clauses to elect multiple jurisdictions under the convention?

Answer 11

Convention only applies to clauses which give exclusive jurisdiction to a particular country.

Question 12

Can you agree a jurisdiction under the convention orally?

Answer 12

No it must be in writing.

Question 13

What is an asymmetric agreement under the Hague Convention?

Answer 13

Where the same rights are not given to each party. So for example, one party can only commence in one jurisdiction but the other can commence anywhere.

Unclear whether this would fall under the convention?

Question 14

Where a clause does fall within the provisions of the Hague Convention, what are the two main consequences in terms of jurisdiction?

Answer 14

1. The court indicated as having jurisdiction will have jurisdiction and cannot decline it on the basis that the dispute should be decided in another country;
2. Any other court must refuse to hear the proceedings (limited exceptions under Article 6)

Question 15

When will the courts of England and Wales have jurisdiction (broadly) under the common law?

Answer 15

a. It is possible to serve the proceedings on the defendant in the jurisdiction - the defendant is ‘present’ in the jurisdiction (true even if based in another jurisdiction or if subject of proceedings took place in another jurisdiction)

b. the court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or

c. the Courts of England and Wales are given jurisdiction by a clause in a contract.

Question 16

What must be established to obtain permission to serve proceedings on the defendant outside of the jurisdiction?

Answer 16

1. Claimant needs to establish grounds in 6B PD 3.1
2. Claim must have reasonable prospects of success
3. England and Wales must be the ‘proper place’ in which to bring the claim

If these three matters are established, then the court may grant permission for service outside the jurisdiction.

Question 17

What are the grounds on which an application for permission to serve outside of the jurisdiction can be based? (jurisdictional gateways)

Answer 17

• A claim is made for a remedy against a person domiciled within the jurisdiction
• A claim is made in respect of a contract where the contract:
  a) was made within the jurisdiction;
  b) is governed by English law; or
  c) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract
• A claim is made in respect of a breach of contract committed within the jurisdiction
• A claim is made in tort where:
  a) damage was sustained, or will be sustained, within the jurisdiction;
  b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction

Question 18

For jurisdiction how high is the ‘reasonable prospect of success’ threshold?

Answer 18

Relatively low.

Same as the prospect of success needed to resist an application for summary judgment.

Question 19

How do you establish that England and Wales is the ‘proper place’?

Answer 19

Can be the proper place to bring the claim if it’s the natural place to bring the proceedings:

• witnesses are based there
• English law applies
• defendant is normally based there

Even it is not the natural place can still be the proper place if justice requires the claim be tried in England and Wales e.g. risk of improper government interference in a different jurisdiction or some other reason why the trial will not be fair

Question 20

What is the service period for serving an issued claim form outside the jurisdiction?

Answer 20

Six months.

Within the jurisdiction is 4 months.

Question 21

When is permission from the court not necessary to serve proceedings out of the jurisdiction?

Answer 21

a. the Hague Convention gives the court jurisdiction

b. a contract contains a term to the effect that the Courts of England and/or Wales shall have jurisdiction to determine the claim

Question 22

What form must be filed if the claimant is seeking to serve an English claim form abroad without permission?

Answer 22

Must file form N510 when it issues and files its claim form.

Confirms to the court the basis on which it has jurisdiction over a foreign domiciled defendant.

Question 23

What form must be filed if the claimant is seeking to serve an English claim form abroad with permission?

Answer 23

Will have to make an application to the court asking court to allow service abroad.

Interim application made pursuant to the usual application notice in Form N244

Question 24

What are the methods of service outside the UK?

Answer 24

• In accordance with an agreed regulation, convention or treaty.
• Service through the government of the destination country (if available)
• Any method permitted by law of the destination country

Question 25

How long does the defendant have to respond to proceedings (with either an acknowledgement of service or a defence) when served out of the jurisdiction?

Answer 25

Extended periods. Amount allowed will vary depending on other country involved.

Question 26

Where a claim form is served out of the jurisdiction without the permission of the court, how will the court know on what basis it is alleged that the court has jurisdiction over the foreign defendant?

Answer 26

This is indicated on Form N510 which is filed when the claim is issued.

Question 27

What orders are available when it is not possible to serve effectively through any of the usual methods within or outside the jurisdiction?

Answer 27

1. An order for alternative service; or
2. An order for dispensing with service

Question 28

What is an order for alternative service?

Answer 28

An order granted by the court which allows for a service which is not a method listed in the CPR.

E.g. (i) serving on solicitors acting for a party where the solicitor has not been authorised to accept service (ii) placing an advert in a newspaper notifying the defendant that proceedings have been commenced against it.

Question 29

How do you apply for an order for alternative service?

Answer 29

An application must be made to court setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these methods have been unsuccessful.

Should state the alternative method proposed.

Court may order that stapes 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.

But cannot be used retrospectively and it cannot be used to remedy irregular service.

Question 30

What is an order to dispense with service?

Answer 30

Where the court may dispense with the service of a document. Discretion is usually only exercised where the other side is already aware of the document.

Very rare for the court to dispense with service of a claim form where the other party is not aware of the proceedings.

Question 31

What is the procedure for disputing the court’s jurisdiction?

Answer 31

1. Defendant must first file an acknowledgment of service (there is a box to tick that says defendant intends to contest jurisdiction)
2. Defendant must apply within 14 days after filing the acknowledgment of service, disputing the court’s jurisdiction. Application must be supported by evidence.

Question 32

What does submitting to the court’s jurisdiction mean?

Answer 32

Submitting means they cannot later dispute it. Should not take any steps to engage with proceedings beyond filing an acknowledgment of service and then applying to the court to challenge jurisdiction.

Anymore than this may be seen as submitting.

Question 33

A defendant who objects to the jurisdiction of England and Wales should do what?

Answer 33

Indicate this on the acknowledgement of service and then apply to court disputing the court’s jurisdiction.

Question 34

Within how many days after filing an acknowledgement of service must an application disputing the court’s jurisdiction be made?

Answer 34

14

Question 35

What is the effect of submitting to the court’s jurisdiction?

Answer 35

The court is, for practical purposes, given jurisdiction.

Question 36

What governs contractual disputes when there is a conflict of law?

Answer 36

Rome I applies to contracts entered into on or after 17 December 2009

Note:
- some areas of law are excluded form Rome I
- Rome I does not apply to contracts entered into before 17 December 2009
- Special provisions for contracts of carriage, consumer contracts, employment and insurance contracts

Question 37

What is a choice of law clause?

Answer 37

An express clause in a contract which specifies what law will apply to the contract.

Question 38

What is the applicable law for sale of goods contracts?

Answer 38

Seller’s habitual residence - where its ‘central administration’ is, for a natural person it is where the principle place of business is.

Question 39

What is the applicable law for provisions of services contracts?

Answer 39

Service provider’s habitual residence - where its ‘central administration’ is, for a natural person it is where the principle place of business is.

Question 40

What is the applicable law for a contract relating to land?

Answer 40

Where the land is situated

Question 41

What is the applicable law for distribution contracts?

Answer 41

The Distributor’s habitual residence - where its ‘central administration’ is, for a natural person it is where the principle place of business is.

Question 42

What must be considered if there is no choice clause and that contract is not under articles 4(1)(a) to (h)?

Answer 42

The applicable law is the law of the country where the party required to effect characteristic performance has its habitual residence.

The residence of the party ‘doing something’ rather than the residence of the party making the payment.

Question 43

Are there any exceptions if the applicable law has been determined under Articles 4(1) or (2) (both Rome I and II)?

Answer 43

Yes if the contract or tort is “manifestly” more closely connected with another country. This provision will not be used lightly.

Question 44

What governs tortious disputes when there is a conflict of law?

Answer 44

Rome II applies to events giving rise to damage which occurred on or after 10 January 2009

Special provisions for product liability, unfair competition, environmental damage, infringement of intellectual property and industrial action.

Question 45

What is the first step in determining which country’s laws will apply under Rome II?

Answer 45

Must ask if the parties have validly chosen which law should apply.

If agreement is entered into after the event giving rise to the tortious damage, then this choice will be effective.

If before event, choice will only be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law.

Question 46

What law applies if both parties are resident in the same country (tort)?

Answer 46

In the absence of choice, if claimant and defendant both reside in the same country, then that country’s laws will apply - even if the damage happened in another country.

For a company, habitual residence is where its central administration is.

Question 47

What happens if there is no choice of law and the claimant and defendant reside in different countries?

Answer 47

Applicable law will be the law of the country in which the damage occurs.

Even if even giving rise to damage happens in another country - it is the country where the damage actually occurs.

Question 48

What determines whether the courts of England and Wales have jurisdiction when the defendant is based in Scotland or Northern Ireland?

Answer 48

The Civil Jurisdiction and Judgments Act 1982

Question 49

What determines jurisdiction in the UK when real property is involved?

Answer 49

The part of the UK where the property is situated will have exclusive jurisdiction.

Question 50

What is the starting point for determining jurisdiction in the UK?

Answer 50

Starting point is that a person domiciled in a part of the UK should be sued in the courts of that part.

or the part of the UK where the goods were to be delivered/services to be provided/harmful tortious event occurred.

Generally a person is domiciled if resident there and the nature and circumstances of their residence indicate they have a substantial connection with that part.

A company is domiciled where its ‘seat’ is and generally its seat is where its registered office is or where it was incorporated.

Question 51

In what circumstances can a person be sued in part of the UK in which they are not domiciled?

Answer 51

• Matters relating to a contract, in the courts for the place of performance of the obligation in question
• Matters relating to tort, in the courts for the place where the harmful event occurred
• Dispute arising out of the operations of a branch, agency or establishment - the place it is situated
• Where person is one of a number of defendants, in the courts where any one of them is domiciled (provided the claims are so close it is expedient to hear and determine them together)
• If a counter-claim arising out of the same contract or facts on which the original claim was based, in the court in which the original claim is pending