Jurisdiction IV Flashcards
What are the other grounds apart from domicile?
Some of these are set out in:
Schd 1, art 5; - this deals with international allocation, that is between the united kingdom and other signatories to the convention
Schd 4, para 3; deals with allocation between various parts of the UK
Schd 8, para 2 deals with allocation between the courts only in Scotland
What are some examples of other grounds apart from domicile?
• CONTRACT – place of performance of the obligation in dispute
in a contractual matter you can found jurisdiction on the basis of the domicile of the defender or the place of performance of the contractual obligation in dispute.
• In delict you can found jurisdiction on the domicile of the defender and in the court of the place where the harmful event occurred
• CONTRACT of EMPLOYMENT – where the employee carries out work
DELICT – court(s) for the place where the harmful event occurred as well as the defender’s domicile.
Bank of Scotland v Seitz 1990 SLT 584
example of jurisdiction on the basis of the performance of the contract. In this case a german, resident and domiciled in germany gave a guarantee for companies situated in scotland. The question is where is the place of performance of the contract. The court held the place of performance was where the payment had to be made, I.e. when it was called up and gurantor had to satisfy the guarantee then this was in scotland so the scottish courts had jurisdiction. This was scotland so must look at the type of contract. Have to look at what it is that has to be performed in order to determine whether the place of performance of the contract is where you want to raise your action.
GJ Bier BV v Mines de Potasse d’Alsace SA [1976] ECR 1735
In this case a dutch horticultural company sued a french mining company for polluting the river rhine. The discharge was in france so that’s where the effluent was, but the harm occurred in holland and the dutch court asked where did the harmful event occur - where the discharge was or in holland. The dutch court referred the matter to the ECJ and the answer was that both courts had jurisdiction. Environmental issues cause difficulty as the expression “where the harmful event occurred” in Article 5.3 is to be construed in such a way that you have the ability to commence proceedings either in the place where the damage occurred or where the event happened that gave rise to the damage.
What is the rule of jurisdiction where there is more than one defender?
Where there is more than one defender the pursuer can sue in court of the domicile of any one of the defenders even if the other defenders are not domiciled in the jurisdiction of that court - they can be sued where jurisdiction is managed for one of them, so do not need jurisdiction against ALL defenders. If you have one domiciled in your jurisdiction, you can sue there: Schd 1, art 6; Schd 4 para 5; Schd 8 rule 2(0)(i)
• Similar rules in relation to counterclaims, and third party proceedings
What are the rules for consumer contracts and insurance?
The Rules allow consumer to sue where defender has a branch or agency irrespective of domicile – Schd 8, r 3 - you do not need to establish domicile in the consumer contract or insurance context. You do not even have to go as far as place of business - branch or agency is enough.
• Also Allow to sue where consumer or policy holder domiciled – so it is not only the defenders domicile but also that of the pursuer. Schd 8, r 3
• In liability insurance, you can also sue where harmful event occurred – Schd 1, art 9
What is the rule for employment?
also where the employee works – Schd 8, r 4
These are designed to be more flexible for individuals who are travelling about, to allow them not to have to go where the defender is but to sue in the courts where they are and this is more user friendly for the consumer and the insurance policy holder.
When do the courts have exclusive jurisdiction?
• The conventions in the 1982 Act provide that there are certain classes of court where certain courts have exclusive jurisdiction.
• Schd 1, Art 16; Schd 4 para 1; Schd 8 rule 5
• The most important items are Rights in rem, or tenancies in immoveable
property, e.g. Disputes about who owns heritable property.
• Secondly, disputes about the Constitution and dissolution of corporations
• Thirdly, disputes about the validity of entries in public registers
The jurisdiction in these situations is that you have to go where the property is and where the constitution is and where the public register is. That is found in provisions mentioned above.
When can you prorogate jurisdiction?
- Parties can and frequently do agree to prorogate jurisdiction by agreement
- If you “enter appearance” then you are deemed to submit to jurisdiction of court - this is qualified by the fact that the court is entitled to question whether it has jurisdiction and if there is exclusive then you cannot submit to the jurisdiction of the court as you cannot prorogate in cases of exclusive jurisdiction (unless expressly contesting)
- Cannot prorogate where 1982 confers exclusive jurisdiction
What is lis pendens?
This phrase is used when a litigation is pending. Within scotland it is lis alibi pendens but outwith or between it is always lis pendens.
The question is what happens if one action is raised in one contracting state, and another action is thereafter raised in another contracting state involving same subject matter and same parties?
Where the convention applies it is as between the position internationally, UK and other convention countries, it is the court which is first seized that gets the case - any other court that gets the case must sist proceedings until such time as the jurisdiction in the first court is established. If this is established then the second court should decline to hear the case (decline jurisdiction). The idea of this rule is to prevent the risk of irreconcilable judgements.
First seized meaning is answered by the date on which the document instituting proceedings is lodged with the court. It is important to note that in Scotland an action does NOT begin when you lodge your document with the court and you get your warrant for citation. The scottish rule is that an action begins when a defender is served with an initiating writ, summons or petition - it is the date of service. This is the date that states that the defender has the writ in his possession.
So when decided whether the court has seized proceedings is the date of the document is lodged only applies to lis pendens, as within the UK And other convention countries. When this occurs there is no specific rule that a court is required to decline jurisdiction. If an action is begun somewhere else in the UK it is not incompetent to go on to decide the case. What should happen however is that someone should take the plea of forum non conveniens - saying it is not convenient to take the case as there are proceedings in another area of the UK which have already started.
The court will decide whether it is appropriate to start or whether to carry on - there is no specific rule that says it is incompetent to proceed. Must simply determine the question of forum non conveniens.
When you get the situation within Scotland - lis alibi pendens - says it is incompetent to raise an action involving the same parties and subject matter in one sheriff court if there is an existing action in another sheriff court involving the same parties and the same subject matter. The critical date for that is the date of service, when the date of the action actual starts.
So no particular rule between jursidictions of UK
In scotland it is lis alibi pendens
- Determining which court is first seised
- First to lodge proceedings at court
- NB in Scots procedure action is raised by service, not by warranting
What is the rule of first seizing?
In International there is a similar rule of first seizing.
• Art27Brussels
Canada Trust v Stolzenburg(No 2) [2002]1AC 1
X
What happens if competing proceedings WITHIN UK ?
- 1982 Act, Schd 4 is silent
- Plea of forum non conveniens
- Onus on D
- Requires to show substantial reasons
- Consideration of whole circumstances - including defences available
What are the rules for proceedings in scotland?
- Competing proceedings in Scotland
* Lis alibi pendens • Date of service is critical date
How do you plead jurisdiction?
This concerns averments or pleadings which state why that court has jurisdiction. This is a matter of averment in terms of the rules.
• Sheriff Court - OCR 3.1 (3), (4) & (5)
• Court of Session RC 13.2 (4) (a)-(d)
“The harmful event in consequence of which the present action proceeds occurred in Scotland within the Sheriffdom of [insert name]. This court accordingly has jurisdiction. **There are no proceedings pending before any other court involving the present cause of action and between the parties hereto. There is no agreement prorogating jurisdiction over the subject-matter of the present cause to any other court.” **
The sheriff court do not require the text in red as a matter of course but it is good practice to include this.
