Jurisdiction MCQs Flashcards
A driver and her husband are both British nationals, living in England. Whilst on holiday in Italy, they are involved in a car accident with another car driven by an Italian national. It is in no way the Italian driver’s fault, but rather was caused by the British driver’s negligence. The British driver’s husband is injured and he commences proceedings against his wife in England claiming damages, primarily for loss of earnings.
Which country’s laws are most likely to be applied by the English court and why?
The law of Italy, because the accident involved an Italian national
The law of England, because most of the husband’s losses are sustained in England.
The law of Italy, because that is where the injury was suffered
The law of Italy, because that is where the accident takes place.
The law of England, because the driver and her husband both live in England
The law of England, because the driver and her husband both live in England
Correct. The Rome II Regulation will apply to this dispute. Pursuant to Article 4(2), both the husband and wife have their habitual residence in England, and therefore the laws of England apply.
A claimant commences proceedings in the English courts against a defendant based in France alleging breach of contract. It is clear to the defendant that pursuant to a clause in the contract proceedings should have been commenced in France (if at all), not England.
What is the next step that the defendant should take in the proceedings?
File a defence (preceded by an acknowledgment if more time is needed) setting out the basis for defending a claim brought in England
Apply to court for the proceedings to be struck out
File an acknowledgement of service and apply to court for summary judgment
Serve a request for further information as to the basis on which it is alleged that the courts of England have jurisdiction
File an acknowledgement of service and apply to court challenging the court’s jurisdiction
File an acknowledgement of service and apply to court challenging the court’s jurisdiction
Correct. This is provided for in CPR 11(1), (2) and (4). It would be wrong to apply for proceedings to be struck out or to apply for summary judgment when CPR 11 provides a procedure specifically for challenging jurisdiction. Filing a defence is not advisable – it may well amount to submitting to the jurisdiction, making it impossible to later challenge jurisdiction. There is no suggestion on the facts that further information is required.
A company based in England enters into a contract with a company based in Italy. The Italian company agrees to buy agricultural machinery from the English company. The contract is formed at a meeting in England. Delivery is to be in Italy. The goods are defective as manufactured, and the defects are not detected until after delivery to the Italian company, which complains about the defects and refuses to pay for the goods. The English company wishes to commence proceedings in relation to the unpaid invoices in England. There is no ‘choice of law’ clause in the contract.
Which country’s laws will govern this dispute?
English law because England is where the seller resides.
Italian law because Italy is where the contract was breached.
English law because England is where the contract was formed.
English law because England is where the party giving the characteristic performance resides.
Italian law because Italy is where the defendant resides.
English law because England is where the seller resides.
Correct. Rome I will apply to this dispute. The parties have not chosen any particular law. Under Article 4(1)(a), a contract for the sale of goods shall be governed by the law of the country where the seller has its habitual residence. The seller is the English company, habitually resident in England, so English law applies. There is no reason to conclude that the contract is manifestly more closely connected with another country (and this is not one of the available answers anyway). The ‘characteristic performer’ is only relevant if the contract is not within one of the categories in Article 4(1).
A claimant is having difficulty serving proceedings on a defendant in relation to a breach of contract because the defendant refuses to reveal his location or address. The parties had always corresponded by email before any dispute arose, and the defendant continues to reply to emails from the same email address, and to email the court from that email address. It has always been clear, and the defendant continues to admit, that the defendant is present and based in England. The claim form needs to be served within the next 4 months. Which of the following is the best course of action for the claimant to take to address the difficulties with service?
Apply to the court for an extension of time for service of the claim form.
Apply to the court for permission to serve the proceedings outside of the jurisdiction.
Serve the proceedings by email.
Apply to the court for an order dispensing with the need to serve proceedings.
Apply to the court for permission to serve proceedings by an alternative method.
Apply to the court for permission to serve proceedings by an alternative method.
Correct. This is permitted by the rules (CPR 6.15), and the alternative method likely to be sought is service by email, given this is an established form of communication between the parties and the defendant seems to be intentionally avoiding service by other means. The court is unlikely to dispense with service of the claim form: one way or another, the proceedings still need to reach the defendant. An extension of time for service of the claim form might be necessary, but it does not address the underlying problem – it simply buys more time. There is nothing on the facts to suggest that the defendant is outside of the jurisdiction. It is not permissible to serve the proceedings by email unless the other party agrees to such service (6A PD 4.1).
A provider of advertising services based in Germany enters into an agreement with a software company in Canada to advertise the software company’s products in Germany. The written contract between the parties provides that the Courts of England and Wales will have exclusive jurisdiction to determine any dispute relating to the parties’ relationship or dealings. Neither party has a presence in England or Wales at any relevant time. A dispute arises. How should the advertising company proceed if it wishes to pursue proceedings against the Canadian company in the English courts?
The court’s permission should be sought to serve proceedings out of the jurisdiction.
The proceedings should be served in the jurisdiction next time the Canadian company is present in the jurisdiction.
It is not possible to pursue proceedings against the Canadian company in the English courts in these circumstances.
The proceedings should be served out of the jurisdiction without seeking the court’s permission.
An order for service by alternative means should be sought
The proceedings should be served out of the jurisdiction without seeking the court’s permission.
Correct. This is permissible pursuant to the provisions of the Hague Convention and CPR (CPR 6.33(2B)). As proceedings can be served outside the jurisdiction without the court’s permission, applying for the court’s permission would waste time and money. Waiting for the Canadian company to be present in the jurisdiction could be an indefinite wait on the facts presented. An order for service by alternative means is neither necessary nor appropriate.
Question 3
A claimant enters into a contract with the defendant, who lives in Italy, for the purchase of
a specialist bicycle. As required by the agreement, the claimant pays in full for the bicycle
on 14 March and it is delivered to England on 27 March ready for a race scheduled to
take place in London. When the bicycle arrives at the claimant’s premises in England,
the claimant inspects it and finds that a faulty gear mechanism has been installed so the
bicycle is not suitable for racing. The claimant wishes to reject the goods and claim the
return of the monies paid. The claimant requests advice on issuing proceedings.
Which of the following statements best explains how the claimant should proceed?
A The claimant has complete choice as to jurisdiction and so should issue proceedings in
the English courts as this would be more convenient.
B The claimant should check the contract to see if there is a term agreeing which
country’s laws apply and whether the courts of England and Wales or Italy have
jurisdiction to hear the dispute.
C Because Italy is a Member State of the European Union, the claimant cannot rely upon
the Hague Convention to sue the defendant.
D In the absence of prior agreement, the claimant must wait until the defendant is
present in England and Wales to serve them with proceedings.
E In the absence of prior agreement, the dispute will be determined by English law as
the contract was breached in England and Wales and permission of the court will not
be required.
Answer
Option B is correct. This is because, although there are mechanisms in place to determine the
applicable law and the appropriate jurisdiction in cases with a foreign element, these only
apply if the parties have not reached agreement on these issues. Hence, the claimant should
check the contract before proceeding further.
Option A is wrong because there may be a jurisdiction clause in the contract and, even if not,
the claimant does not have complete choice due to the ‘default’ mechanisms which come into
effect in the absence of agreement. Option C is wrong as all Member States of the EU are
parties to the Hague Convention. However, this only applies if there is an exclusive jurisdiction
agreement and the facts do not provide information on this point.
Option D is wrong as although jurisdiction can be established by the defendant being served
in England and Wales, this is not the only option available to the claimant. If proceedings
are issued in England and Wales, the documents may be served outside the jurisdiction but
permission of the court must be obtained; hence, Option E is wrong.
A company incorporated in England & Wales purchases a plot of land in Scotland. In breach of contract, the seller fails to complete the purchase (transfer the land) on the agreed date. Completion was set to take place at the company’s solicitors’ offices in England. Based on these facts, where is it most likely that Ben can commence proceedings?
* In England or Scotland.
* In England only.
* In any part of the UK.
* In Scotland only.
- In Scotland only.
- Correct. The exclusive jurisdiction rules apply – this dispute is concerned with real property, and so the part of the UK in which the property is situated will have exclusive jurisdiction. On the facts, this is Scotland. It does not matter that the Defendant is domiciled in Scotland or where the obligation in question was due to be performed.
Ben is on holiday in Scotland when is hit crossing a road by a man negligently driving his kids to school. Based on these facts, where is it most likely that Ben can commence proceedings?
* Proceedings must be commenced in both England and Scotland.
* In England only.
* In Scotland only.
* In England or Scotland.
- In Scotland only.
- Correct. The exclusive jurisdiction rules do not apply and there has been no choice of jurisdiction by the parties. The basic rule is that the defendant should be sued where he lives, which appears to be Scotland on the facts provided (although you would need to check). The rules provide, as an alternative, that proceedings can be commenced in relation to tort where the harmful event occurs, but this is also Scotland.
Ben is walking to the shops in his hometown in England when is hit crossing a road by a Northern Irish man on holiday in England. Based on these facts, where is it most likely that Ben can commence proceedings?
* In any part of the UK.
* In England only.
* In England or Northern Ireland.
* In Northern Ireland only.
- In England or Northern Ireland.
- Correct. The exclusive jurisdiction rules do not apply and there has been no choice of jurisdiction by the parties. The basic rule is that the defendant should be sued where he lives, which appears to be Northern Ireland on the facts provided (although you would need to check). The rules provide, as an alternative, that proceedings can be commenced in relation to tort where the harmful event occurs, which is England. So the claimant has a choice whether to commence proceedings in England or Northern Ireland.
