Jurisdiction

Question 1

Describe the key considerations for determining jurisdiction under the Hague Convention.

Answer 1

The key considerations include whether the matter is civil or commercial, if it is an excluded matter, whether the clause gives jurisdiction to a Contracting State, if jurisdiction is given exclusively, if the agreement is documented in writing, and if the agreement is asymmetric.

Question 2

Define what is meant by an ‘asymmetric’ agreement in the context of jurisdiction.

Answer 2

An ‘asymmetric’ agreement refers to a jurisdiction clause that grants one party the right to choose the jurisdiction while limiting the other party’s options, often favoring the interests of the party with more bargaining power.

Question 3

What types of matters are excluded from the jurisdiction considerations under the Hague Convention?

Answer 3

Excluded matters typically include family law, inheritance, and certain administrative matters, which are not covered by the jurisdiction rules of the Hague Convention.

Question 4

List the current Contracting States of the Hague Convention.

Answer 4

The current Contracting States include the UK, all EU member states, Mexico, Singapore, and Montenegro.

Question 5

How does a jurisdiction clause in a contract affect the applicability of the Hague Convention?

Answer 5

If a contract specifies that the courts of a Contracting State, like France, have jurisdiction, it falls under the Hague Convention. However, if it specifies a court in the USA, the Convention does not apply.

Question 6

When do the common law rules apply?

Answer 6

Common law rules are applied to determine jurisdiction when the Hague Convention does not apply.

Question 7

Define the term ‘present’ in the context of jurisdiction in England and Wales.

Answer 7

In the context of jurisdiction, ‘present’ refers to the ability to serve legal proceedings on a defendant who is physically located within the jurisdiction of England and Wales.

Question 8

How was the contract between the paper supplier and the printing company negotiated?

Answer 8

The contract was negotiated and completed via the printing company’s office in the USA, despite the printing company having a branch office in London, England.

Question 9

Would the courts of England and Wales have jurisdiction over the dispute?

Answer 9

Yes, the courts of England and Wales would have jurisdiction because the paper supplier can serve proceedings on the printing company’s branch in England.

Question 10

How are claims determined in the courts of England and Wales if the Hague Convention does not apply?

Answer 10

Claims are determined by applying common law rules.

Question 11

What is the role of CPR 6.37 in the context of serving proceedings outside of the jurisdiction?

Answer 11

CPR 6.37 outlines the requirements that must be met for a claimant to obtain permission to serve proceedings on a defendant outside of the jurisdiction.

Question 12

What are the three main ways a court can establish jurisdiction over a defendant?

Answer 12

The three main ways are:

1) serving the proceedings on the defendant within the jurisdiction,

2) obtaining permission to serve the defendant outside the jurisdiction, and

3) having jurisdiction established through a contractual clause.

Question 13

Explain the significance of a contractual clause in establishing jurisdiction.

Answer 13

A contractual clause can grant the Courts of England and Wales jurisdiction over a defendant, allowing legal proceedings to be initiated based on the terms agreed upon in the contract.

Question 14

Do courts in England and Wales require permission to serve proceedings outside their jurisdiction?

Answer 14

Yes, courts in England and Wales require permission to serve proceedings on a defendant located outside of their jurisdiction.

Question 15

When is a foreign defendant subject to the jurisdiction of the courts of

Answer 15

A defendant is subject to the jurisdiction of the courts of England and Wales if proceedings are served on them while they are within the jurisdiction, regardless of whether the defendant is foreign or the subject matter of the proceedings is based elsewhere.

Question 16

Define personal service in the context of legal proceedings in England and Wales.

Answer 16

Personal service refers to the method of serving legal documents directly to an individual defendant, ensuring they receive the proceedings.

Question 17

How can a company not incorporated in England and Wales be served with proceedings?

Answer 17

A company not incorporated in England and Wales can be served at any place of business it has within England and Wales.

Question 18

What happens if a defendant appoints a solicitor in England and Wales?

Answer 18

If a defendant appoints a solicitor in England and Wales to accept service on their behalf, proceedings can be served on that solicitor within the jurisdiction.

Question 19

Describe the process for serving proceedings on a defendant outside of the jurisdiction.

Answer 19

A party can apply to serve proceedings on a defendant outside of the jurisdiction if they cannot or do not want to serve within it. The court must grant permission, and if the proceedings are duly served, the courts of England and Wales can determine the claim.

Question 20

Define the three matters that must be established to obtain permission for service outside of the jurisdiction.

Answer 20

1. The claimant must establish one of the grounds in CPR 6B PD 3.1; 2. The claim must have reasonable prospects of success; 3. England and Wales must be the ‘proper place’ to bring the claim.

Question 21

Describe the grounds for permission to serve outside of the jurisdiction according to 6B PD 3.1.

Answer 21

The grounds include: a claim for a remedy against a person domiciled within the jurisdiction, a claim in respect of a contract made within the jurisdiction or governed by English law, a breach of contract committed within the jurisdiction, and a tort where damage was sustained within the jurisdiction.

Question 22

How does the court determine if England and Wales is the ‘proper place’ for a claim?

Answer 22

The court assesses whether the circumstances of the case justify bringing the claim in England and Wales, considering factors such as the connection of the parties and the subject matter to the jurisdiction.

Question 23

Explain the significance of having reasonable prospects of success in obtaining permission for service outside the jurisdiction.

Answer 23

Establishing reasonable prospects of success indicates that the claim is not frivolous and has a legitimate chance of succeeding, which is a requirement for the court to consider granting permission.

Question 24

How does a claim for a remedy against a person domiciled within the jurisdiction serve as a ground for permission?

Answer 24

This ground allows for permission to serve outside the jurisdiction if the claim is made against an individual who is legally recognized as residing within the jurisdiction.

Question 25

What conditions must be met for a breach of contract to be considered within the jurisdiction?

Answer 25

A breach of contract is considered within the jurisdiction if it was committed within the jurisdiction.

Question 26

Identify the criteria for a tort claim to be valid under the jurisdictional gateways.

Answer 26

A tort claim is valid under the jurisdictional gateways if damage was sustained within the jurisdiction or if the damage results from an act committed within the jurisdiction.

Question 27

Describe the factors that determine if England or Wales is the proper place to bring a claim.

Answer 27

Factors include whether it is the natural place for the proceedings, the location of witnesses, the applicability of English law, and the residency of the defendant.

Question 28

How can the Courts of England and Wales still be considered the proper place for a claim if another jurisdiction is the natural place?

Answer 28

The of England and Wales can be deemed the proper place if justice requires the claim to be tried there, such as concerns over fairness or potential government interference in the other jurisdiction.

Question 29

Describe the conditions under which a claimant can serve a claim form on a defendant outside the jurisdiction without court permission.

Answer 29

A claimant can serve a claim form on a defendant outside the jurisdiction without court permission if the contract contains a term stating that the courts of England and/or Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)).

Question 30

Define the term 'gateway' in the context of serving proceedings out of jurisdiction.

Answer 30

A 'gateway' refers to a legal basis that allows a claimant to serve proceedings on a defendant outside the jurisdiction, such as when damage is sustained within the jurisdiction due to an act committed there.

Question 31

What legal action does the woman wish to take against the man?

Answer 31

The woman wishes to commence tort proceedings against the man for negligence.

Question 32

Define the term 'permission to serve proceedings out of the jurisdiction'.

Answer 32

It refers to the legal requirement to obtain court approval before serving legal documents to a defendant located outside the jurisdiction.

Question 33

How does the service period for a claim form differ between inside and outside the jurisdiction?

Answer 33

The service period for a claim form served outside the jurisdiction is six months, while for a claim form served within the jurisdiction, it is normally four months.

Question 34

Explain the significance of CPR 6.33(2B) in relation to jurisdiction.

Answer 34

CPR 6.33(2B) outlines that if a contract contains a term granting jurisdiction to the Courts of England and/or Wales, then court permission is not needed to serve proceedings.

Question 35

Describe the process for serving an English claim form abroad without permission.

Answer 35

A claimant must file Form N510 when issuing and filing its claim form, confirming the court's jurisdiction over a foreign-domiciled defendant without seeking permission.

Question 36

How does a claimant serve an English claim form abroad with permission?

Answer 36

The claimant must make an application to the court using Form N244, requesting permission to serve the claim form on the defendant.

Question 37

How should one approach service in a destination country when serving outside the UK?

Answer 37

It is often preferred to seek local advice and engage a local agent to effect service by a method permitted in the destination country.

Question 38

What is the implication of a government’s willingness in the context of service outside the UK?

Answer 38

If the government of the destination country is willing, service can be conducted through that government, which may facilitate the process.

Question 39

Describe the implications of serving a claim form out of the jurisdiction.

Answer 39

Extended periods for filing an acknowledgment of service or defense apply when the claim form or particulars of claim have been served out of the jurisdiction.

Question 40

How does the amount of extra time for filing vary when serving out of the jurisdiction?

Answer 40

The amount of extra time allowed will vary depending on which country is involved.

Question 41

What is the purpose of an order dispensing with service?

Answer 41

An order dispensing with service allows the court to waive the requirement for service in exceptional circumstances, as specified in CPR 6.16.

Question 42

How can difficulties with service be addressed legally?

Answer 42

Difficulties with service can be addressed by applying to the court for orders such as alternative service or dispensing with service.

Question 43

How can a solicitor be involved in alternative service?

Answer 43

One method of alternative service is serving on solicitors acting for a party, even if the solicitor has not been authorized to accept service.

Question 44

What is one example of an alternative service method involving public notification?

Answer 44

Placing an advertisement in a newspaper to notify the defendant that proceedings have been commenced against them is an example of an alternative service method.

Question 45

Describe the circumstances under which a court may dispense with service of a document.

Answer 45

A court may dispense with service of a document when the other side is already aware of the document.

Question 46

How does a claimant proceed if they wish to amend their particulars of claim with the defendant's agreement?

Answer 46

The claimant must make an application to the court to amend the document.

Question 47

What might the court do if it agrees to a claimant's amendment of a document?

Answer 47

The court might dispense with service, meaning the claimant does not have to serve the document on the defendant.

Question 48

How can a defendant dispute the jurisdiction of an English or Welsh court?

Answer 48

A defendant can dispute jurisdiction by arguing that the court lacks jurisdiction, that the claimant has not satisfied the necessary gateways for serving proceedings out of the jurisdiction, or that there is a more appropriate forum for the case.

Question 49

Explain the term 'proper place' in the context of court jurisdiction.

Answer 49

The term 'proper place' refers to the most appropriate forum for a legal dispute to be heard, which may be determined by factors such as the location of the parties, the subject matter of the dispute, and the convenience of the court.

Question 50

Describe the first step a defendant must take to dispute the court's jurisdiction.

Answer 50

The defendant must file an acknowledgement of service, indicating their intention to contest jurisdiction.

Question 51

How long does a defendant have to apply to dispute the court's jurisdiction after filing the acknowledgement of service?

Answer 51

The defendant must apply within 14 days after filing the acknowledgement of service.

Question 52

What must accompany the application to dispute the court's jurisdiction?

Answer 52

The application must be supported by evidence.

Question 53

Describe the relationship between submitting to a court's jurisdiction and disputing it.

Answer 53

Submitting to a court's jurisdiction is the opposite of disputing it; once a party submits, they cannot later dispute that jurisdiction.

Question 54

How can a defendant avoid submitting to the court's jurisdiction?

Answer 54

A defendant can avoid submitting by not engaging with the proceedings beyond filing an acknowledgement of service and applying to challenge the jurisdiction.

Question 55

What action should a party avoid to prevent establishing the court's jurisdiction?

Answer 55

A party should avoid filing a defence to prevent establishing the court's jurisdiction.

Question 56

Define the consequence of submitting to the jurisdiction of the Courts of England and Wales.

Answer 56

Once a party submits to the jurisdiction, it establishes the court's authority, and they cannot later dispute it.

Question 57

What is the significance of acknowledging service in relation to court jurisdiction?

Answer 57

Acknowledging service is a step that must be taken without further engagement to avoid submitting to the court's jurisdiction.

Question 58

Describe the situation when there is no choice regarding the applicable law of a contract.

Answer 58

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

Question 59

Define the term 'manifestly more closely connected' in the context of applicable law.

Answer 59

It refers to a situation where a contract is more closely related to another country than the one initially considered, potentially leading to the application of that other country's law.

Question 60

Do the parties have the option to select the applicable law for their contract?

Answer 60

Yes, the parties can choose which law should apply to their contract, and that law will govern their agreement.

Question 61

How is the applicable law determined if the parties have not chosen one?

Answer 61

If the parties have not chosen a law, the applicable law is that of the country where the 'characteristic performer' has its habitual residence.

Question 62

Describe the significance of the parties' choice of law in a contract.

Answer 62

The parties' choice of law determines which country's legal framework will govern the contract.

Question 63

What is the significance of Article 4(3) in international contract law?

Answer 63

Article 4(3) provides a mechanism for courts to apply the law of a country that has a stronger connection to a contract, ensuring that legal outcomes are more aligned with the realities of the contractual relationship.

Question 64

Define the term 'manifestly more closely connected' in the context of Article 4(3).

Answer 64

'Manifestly more closely connected' refers to a situation where a contract has a clear and strong relationship with another country, justifying the application of that country's law instead of the initially determined applicable law.

Question 65

Describe the conditions under which a court may apply a different country's law according to Article 4(3).

Answer 65

A court may apply a different country's law if the contract is manifestly more closely connected with that other country, after determining the applicable law under Article 4(1) or 4(2).

Question 66

In a contract where one party pays for a service, which party is considered the characteristic performer?

Answer 66

Generally, the party doing the 'something' or providing the service is considered the characteristic performer, not the party making the payment.

Question 67

How is the applicable law determined if a contract does not fall into the specified categories of Articles 4(1)(a) to (h)?

Answer 67

The applicable law is that of the country where the characteristic performer has its habitual residence.

Question 68

Define 'characteristic performance' in the context of a contract.

Answer 68

Characteristic performance refers to the performance that gives the contract its character, typically the action being performed rather than the payment.

Question 69

Explain the difference between contractual and tortious disputes in legal terms.

Answer 69

Contractual disputes arise from the breach of agreements between parties, while tortious disputes involve wrongful acts that cause harm or loss to another party, independent of any contractual relationship.

Question 70

Identify the applicable law for a distribution contract.

Answer 70

The applicable law for a distribution contract is based on the distributor's habitual residence.

Question 71

Explain the concept of habitual residence in the context of contracts.

Answer 71

A company's habitual residence is where its 'central administration' is located, while for a natural person, it is where their principal place of business is.

Question 72

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

Answer 72

The applicable law for a contract relating to land is determined by the location of the land.

Question 73

Define the applicable law for a service provision contract.

Answer 73

The applicable law for a service provision contract is based on the service provider's habitual residence.

Question 74

How is the applicable law determined for a sale of goods contract?

Answer 74

The applicable law for a sale of goods contract is determined by the seller's habitual residence.

Question 75

Describe the types of contracts outlined in Articles 4(1)(a) to (h).

Answer 75

The types of contracts include sale of goods, provisions of services, contracts relating to land, and distribution contracts.

Question 76

What happens if the parties do not choose a law to apply?

Answer 76

If the parties do not choose a law, the applicable law will be determined based on other legal principles, such as the location of the contract's performance or the domicile of the parties.

Question 77

What is the significance of a 'choice of law' clause in a contract?

Answer 77

A 'choice of law' clause specifies which country's law will apply to the contract, providing clarity and predictability in legal disputes.

Question 78

Identify the date before which contracts are not covered by the Rome I Regulation.

Answer 78

Contracts entered into before 17 December 2009 are not covered by the Rome I Regulation.

Question 79

Identify some areas of law that are excluded from the Rome II Regulation.

Answer 79

Certain areas of law are excluded from Rome II, as noted in Article 1 of the regulation.

Question 80

What does Rome II apply to?

Answer 80

Tortious matters

Question 81

How does the connection of a tort to a country influence the applicable law?

Answer 81

If a tort is 'manifestly more closely connected' with another country, that country's law may apply instead of the law chosen by the parties.

Question 82

Define the criteria for applying the law of the country where damage occurs.

Answer 82

The law of the country where damage occurs applies when the parties have not validly chosen a law or when the connection to that country is stronger.

Question 83

What happens if the claimant and defendant habitually reside in the same country?

Answer 83

If the claimant and defendant habitually reside in the same country, that country's laws will apply to their legal dispute.

Question 84

Describe the conditions under which parties can choose the applicable law in a tortious damage agreement.

Answer 84

Parties can choose the applicable law if the agreement is made after the event causing the damage. If made before, the choice is valid only if both parties are engaged in commercial activity and have freely negotiated the choice.

Question 85

Explain the implications of a valid choice of law in a tortious damage case.

Answer 85

If the parties have validly chosen a law, that country's law will apply to the case.

Question 86

Do the laws of a country apply if the claimant and defendant are from different countries?

Answer 86

No, the laws of the country where the damage occurred may apply instead.

Question 87

Describe the conditions under which a court may apply a different country's law according to Article 4(3).

Answer 87

A court may apply a different country's law if the tort is manifestly more closely connected with that other country, even if the applicable law has been determined under Article 4(1) or 4(2).

Question 88

How does Article 4(3) of Rome II affect the determination of applicable law in tort cases?

Answer 88

Article 4(3) allows for the application of a different country's law if the tort is manifestly more closely connected to that country, potentially overriding the initial determination of applicable law.

Question 89

Define the term 'manifestly more closely connected' as used in Article 4(3).

Answer 89

'Manifestly more closely connected' refers to a situation where the relationship between the tort and another country is so strong that it justifies applying that country's law instead of the initially determined applicable law.

Question 90

How does the location of damage affect the applicable law in tort cases?

Answer 90

The law of the country where the damage occurs will apply, even if the event causing the damage happened elsewhere.

Question 91

Identify the types of contracts that have special rules under the Civil Jurisdiction and Judgments Act 1982.

Answer 91

The Act includes special rules for consumer contracts and employment contracts, which are not covered in detail in the provided content.

Question 92

Describe exclusive jurisdiction in relation to disputes in the UK.

Answer 92

Exclusive jurisdiction refers to the legal authority granted to a specific part of the UK to handle certain types of disputes, such as those involving real property, where only that part can have jurisdiction.

Question 93

How does the location of real property affect jurisdiction in the UK?

Answer 93

The location of real property determines jurisdiction, as the part of the UK where the property is situated will have exclusive jurisdiction over disputes related to that property.

Question 94

How does submission to a court's jurisdiction interact with exclusive jurisdiction rules?

Answer 94

Submission to a court's jurisdiction does not override exclusive jurisdiction rules, meaning that even if a party submits, the exclusive jurisdiction of a specific part of the UK still applies.

Question 95

What are the implications of filing a defense in relation to jurisdiction?

Answer 95

Filing a defense implies submission to the court's jurisdiction, thereby granting that court the authority to hear the case, as long as it does not conflict with exclusive jurisdiction rules.

Question 96

Describe the circumstances under which a person can be sued in parts of the UK where they are not domiciled. L

Answer 96

A person can be sued in the UK in the following circumstances: 1) in matters relating to a contract, in the courts for the place of performance; 2) in matters relating to tort, in the courts for the place where the harmful event occurred; 3) for disputes arising from a branch or agency, in the courts where that establishment is located; 4) if there are multiple defendants, in the courts where any one of them is domiciled if the claims are closely connected; 5) on a counter-claim related to the original claim, in the court where the original claim is pending.

Question 97

What options does a claimant have if there is no exclusive jurisdiction clause in a contract for a breach of contract claim?

Answer 97

The claimant can either sue the defendant where it is domiciled (Scotland) or where the contract is to be performed (England, the place of delivery).

Question 98

What options does a claimant have when suing a defendant in the UK?

Answer 98

The claimant can choose to sue the defendant where the defendant is domiciled or in certain other parts of the UK where the defendant is not domiciled.

Question 99

How does section 42 define the domicile of a company?

Answer 99

Section 42 defines a company's domicile as where its 'seat' is, typically where it has its registered office.

Question 100

What does section 42A specify about company incorporation and domicile?

Answer 100

Section 42A specifies that if a company has no registered office, its domicile is where it was incorporated.

Question 101

How does the presence of multiple defendants affect jurisdiction in the UK?

Answer 101

If there are multiple defendants, a person can be sued in the courts for the place where any one of them is domiciled, provided the claims are closely connected.

Question 102

What is the jurisdiction for counter-claims in the UK?

Answer 102

A counter-claim arising from the same contract or facts as the original claim can be heard in the court where the original claim is pending.

Question 103

Where else can a person be sued in parts of the UK in which they are not domiciled

Answer 103

• in matters relating to a contract, in the courts for the place of performance of the obligation in question; • in matters relating to tort, in the courts for the place where the harmful event occurred or may occur; • as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated; • where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together; • on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending