W10 MCQ (Jurisdiction & Conflict of Law)

Question 1

This topic will not cover one of the following. Which one?

A. How will the judgment be enforced abroad?

B. Whether the courts of England and Wales have jurisdiction to hear a claim

C. Which country’s laws apply to determine a dispute.

Answer 1

A. How will the judgment be enforced abroad?

Question 2

The question of ‘jurisdiction’ is concerned with…

A. The powers that a court has by way of remedy.

B. Which courts can determine a dispute.

C. Whether or not a dispute is governed by English Law.

Answer 2

B. Which courts can determine a dispute.

Question 3

The topic of choice of law or conflict of laws is about…

A. Whether a dispute should be heard in England or in Wales.

B. In which country should proceedings be brought.

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

Answer 3

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

Question 4

What is the connection between jurisdiction and applicable law?

A. If English / Welsh law applies, then the courts of England and Wales have jurisdiction.

B. The two things should be considered separately.

C. If the courts of England and Wales have jurisdiction, then English / Welsh law will apply.

Answer 4

B. The two things should be considered separately.

Question 5

The rules explained in this element are the rules as from…

A. 1 June 2020

B. 1 January 2015

C. 1 July 2020

D. 1 January 2021

Answer 5

D. 1 January 2021

There were additional important jurisdiction regimes before this date.

Question 6

Which of the following best explains broadly when the Hague Convention applies?

A. The parties have contractually agreed the jurisdiction.

B. The dispute is a tortious one

C. The dispute is a contractual one.

Answer 6

A. The parties have contractually agreed the jurisdiction.

The Hague Convention is about choice of court agreements – where the parties have chosen the court (contractually).

Question 7

In order for the Hague Convention to apply, jurisdiction must be given to a contracting state (a state which has signed up to the Convention) exclusively. This means…

A. A contracting state has jurisdiction to determine all aspects of the dispute, whereas other states only have jurisdiction to determine certain aspects of the dispute.

B. One party exclusively has the choice of jurisdiction – the other party has no choice.

C. Only contracting states have jurisdiction.

D. A contracting state has jurisdiction and nowhere else has jurisdiction.

Answer 7

D. A contracting state has jurisdiction and nowhere else has jurisdiction.

This is how an exclusive jurisdiction clause operates.

Question 8

A French citizen is in England for 1 month for business purposes. It is likely to be best to serve proceedings on him in relation to a claim against him personally by….

A. personal service on him whilst he is in England.

B. applying for permission to serve proceedings on him in France.

C. personal service on him whilst he is in England, with the court’s permission.

Answer 8

A. personal service on him whilst he is in England.

This is relatively straightforward (as long as he can be located) and does not require an application to court. The courts of England and Wales will have jurisdiction unless it is later contested.

Question 9

In order to obtain permission to serve proceedings out of the jurisdiction, three matters must be established. Which of the following is not one of them?

A. The claim must have reasonable prospects of success

B. England and Wales must be the ‘proper place’ in which to bring the claim

C. The claimant needs to establish one of the gateways in the CPR, such as that the claim is a breach of contract committed in the jurisdiction

D. The defendant or the subject matter of the dispute is or has been in the jurisdiction

Answer 9

D. The defendant or the subject matter of the dispute is or has been in the jurisdiction

This is not one of the three matters that must be established

Question 10

If the three matters set out in the last question are established, then the court…

A. …will grant permission to serve out of the jurisdiction.

B.…may grant permission to serve out of the jurisdiction.

Answer 10

B.…may grant permission to serve out of the jurisdiction.

The court has a discretion

Question 11

A party can serve proceedings outside of the jurisdiction without the court’s permission if…

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

B. the contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (whether or not jurisdiction is exclusive).

C. the contract contains a term to the effect that proceedings can be served outside of the jurisdiction without the permission of the court.

Answer 11

B. the contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (whether or not jurisdiction is exclusive).

The court has discretion

Question 12

Where a claim form has validly been issued, the period for service where the claim form is to be served outside the jurisdiction is how many months?

A. 3

B. 5

C. 4

D. 6

Answer 12

D. 6

Question 13

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?

A. This is indicated on the claim form at the time of filing.

B. This is explained in a witness statement served in the event that judgment in default is required, or there is a dispute about jurisdiction.

C. This is indicated on a form filed when the claim is issued.

Answer 13

C. This is indicated on a form filed when the claim is issued.

Form N510

Question 14

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?

A. 28 days.

B. 56 days.

C. This varies, depending primarily on the country in which service takes place.

D. 14 days

Answer 14

C. This varies, depending primarily on the country in which service takes place.

Question 15

Alternative service is…

A. …serving at an address which is not the defendant’s normal place of business or residence.

B. …serving at an address which is not in the jurisdiction.

C. …serving by a method not generally permitted by the CPR.

Answer 15

C. …serving by a method not generally permitted by the CPR.

Question 16

In order to obtain an order for alternative service, it is generally necessary to show that…

A. …the usual methods of service are impossible / ineffective.

B. …the defendant is not resident in the jurisdiction.

C. …the defendant is trying to evade service.

Answer 16

A. …the usual methods of service are impossible / ineffective.

Question 17

Is the court likely to dispense with service of a claim form?

A. This is very unlikely unless the defendant is aware of the proceedings.

B. Yes, if the claimant has made reasonable attempts at service.

C. No, the court cannot dispense with service of the claim form.

Answer 17

A. This is very unlikely unless the defendant is aware of the proceedings.

Question 18

Rome I applies (with some exceptions) to…

A. …breaches of contract on or after 17 December 2009

B. …proceedings in relation to breach of contract commenced on or after 17 December 2009

C. …losses caused by a breach of contract, suffered on or after 17 December 2009

D. …contracts entered into on or after 17 December 2009

Answer 18

D. …contracts entered into on or after 17 December 2009

Question 19

Once you have determined that Rome I applies, the starting point with Rome I is to consider…

A. …whether the parties have made a choice of law.

B. …where the defendant habitually resides.

C. …the type of contract.

D. …where the claimant habitually resides.

Answer 19

A. …whether the parties have made a choice of law.

Question 20

In the absence of a choice of law by the parties, a sale of goods contract is most likely to be governed by the law of…

A. …the country where the contract was formed.

B. …the country where the buyer habitually resides.

C. …the country in which the contract was breached.

D. …the country where the seller habitually resides.

Answer 20

D. …the country where the seller habitually resides.

Question 21

Rome II applies (with some exceptions) to…

A. …torts arising out of relationships formed on or after 10 January 2009

B. …damage suffered on or after 10 January 2009

C. …proceedings (in relation to a tort) commenced on or after 10 January 2009

D. …events giving rise to damage which occur on or after 10 January 2009

Answer 21

D. …events giving rise to damage which occur on or after 10 January 2009

Question 22

Once you have determined that Rome II applies, the starting point with Rome II is to consider…

A. …where the claimant habitually resides.

B. …whether the parties have made a choice of law.

C. …where the defendant habitually resides.

D. …where the harm was suffered.

Answer 22

B. …whether the parties have made a choice of law.

Question 23

In the absence of a choice of law by the parties and assuming both parties are not resident in the same jurisdiction, the general rule is that the applicable law is that of…

A. …the country where the victim habitually resides.

B. …the country where the damage occurs.

C. …the country where the victim suffers any financial losses.

D. …the country where the tortious event occurs.

Answer 23

B. …the country where the damage occurs.

Question 24

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?

A. In Scotland only.

B. In England only.

C. Proceedings must be commenced in both England and Scotland.

D. In England or Scotland.

Answer 24

A. In Scotland only.

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.

Question 25

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?

A. In England only.

B. In any part of the UK.

C. In Northern Ireland only.

D. In England or Northern Ireland.

Answer 25

D. In England or Northern Ireland.

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.

Question 26

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?

A. In Scotland only.

B. In England only.

C. In any part of the UK.

D. In England or Scotland.

Answer 26

A. In Scotland only.

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.

Question 27

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

A. Indicate this on the acknowledgement of service and then set out the grounds of dispute in its defence.

B. Indicate this on the acknowledgement of service and then take no further part in the proceedings.

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

D. Set out the grounds of dispute in its defence and then apply to court disputing the court’s jurisdiction.

Answer 27

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

Question 28

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

A. 28

B. 21

C. 14

D. 7

Answer 28

C. 14

Question 29

The effect of submitting to the court’s jurisdiction is that…

A. … the court is, for practical purposes, given jurisdiction.

B. … the defendant only has 14 days to apply to dispute jurisdiction.

C. … the court will allow service within the jurisdiction.

Answer 29

A. … the court is, for practical purposes, given jurisdiction.

Question 30

Which of the following is likely to amount to submitting to the jurisdiction?

A. …filing a defence

B. …filing an acknowledgement of service

C. …responding to a letter before claim

D. …none of the other answers is likely to amount to submitting to the jurisdiction

Answer 30

A. …filing a defence

A defendant wishing to avoid submitting to the court’s jurisdiction should avoid filing a defence, even if the defence repeats the objection to jurisdiction.

Question 31

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?

A. The law of England, because the driver and her husband both live in England

B. The law of Italy, because the accident involved an Italian national

C. The law of Italy, because that is where the injury was suffered

D. The law of England, because most of the husband’s losses are sustained in England.

E. The law of Italy, because that is where the accident takes place.

Answer 31

A. The law of England, because the driver and her husband both live in England

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.

Question 32

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?

A. Apply to court for the proceedings to be struck out

B. File an acknowledgement of service and apply to court for summary judgment

C. Serve a request for further information as to the basis on which it is alleged that the courts of England have jurisdiction

D. File an acknowledgement of service and apply to court challenging the court’s jurisdiction

E. File a defence (preceded by an acknowledgment if more time is needed) setting out the basis for defending a claim brought in England

Answer 32

D. File an acknowledgement of service and apply to court challenging the court’s jurisdiction

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.

Question 33

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?

A. Italian law because Italy is where the defendant resides.

B. English law because England is where the seller resides.

C. Italian law because Italy is where the contract was breached.

D. English law because England is where the contract was formed.

E. English law because England is where the party giving the characteristic performance resides.

Answer 33

B. English law because England is where the seller resides.

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).

Question 34

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?

A. Serve the proceedings by email.

B. Apply to the court for an extension of time for service of the claim form.

C. Apply to the court for permission to serve the proceedings outside of the jurisdiction.

D. Apply to the court for an order dispensing with the need to serve proceedings.

E. Apply to the court for permission to serve proceedings by an alternative method.

Answer 34

E. Apply to the court for permission to serve proceedings by an alternative method.

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).

Question 35

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?

A. The proceedings should be served out of the jurisdiction without seeking the court’s permission.

B. An order for service by alternative means should be sought.

C. It is not possible to pursue proceedings against the Canadian company in the English courts in these circumstances.

D. The court’s permission should be sought to serve proceedings out of the jurisdiction.

E. The proceedings should be served in the jurisdiction next time the Canadian company is present in the jurisdiction.

Answer 35

A. The proceedings should be served out of the jurisdiction without seeking the court’s permission.

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.