#17363 - Common Law Jurisdiction - Conflict of Laws

1. Service on D (or consent) as basis of jurisdiction:

   1. D in England: Under national law if D can be served with the claim form while in England, then the court has jurisdiction over D ‘as of right’.

2. Service out: The English court takes subject-matter juirisdiction over absent Ds under CPR 6.36 and PD 6B by permitting sevice of the claim form on D out of the territorial jurisdiction in some cases (service-out cases).

3. Consent: Alternatively, where D has consented to the English court’s jurisdiction (e.g. in contract, by submission or counterclaim) the English court will have jurisdiction.

2. Adjudicatory discretion: Where there is more than one available forum, D may contest the jurisdiction. The English court can choose whether or not to exercise its jurisdiction, based on the doctrine of forum conveniens—i.e. the appropriateness of trial in England. The exercise of national jurisdiction is therefore a matter of discretion.

Forum conveniens—i.e. discretion in the national rules—arises in one of the following situations:

1. Stays: Where proceedings have been served on a D as of right (e.g. personal service on individual in the jurisdiction, e.g. Abramovich): D can still apply for a stay of proceedings validly commenced in England on the basis that there is another clearly more appropriate forum in which the case can be heard—i.e. asking the court not to exercise discretion; or

2. Service out: Where D cannot be served within the territory of the jurisdiction, C applies for permission to serve the claim form out of the jurisdiction under CPR 6.36 and PD 6B:

   1. The case must fall within one of the grounds laid out in PD 6B r.3.1; and

   2. C must show a sufficiently cogent case on the merits (i.e. the substance) of the claim; and

   3. The court must be satisfied that England is the proper place in which to bring the claim (CPR 6.37(3))—essentially discretionary, i.e. C is asking the court to exercise its discretion.

1. Individuals:

   1. Method of service: CPR 6.3—e.g. personal service, by post, by fax. There are detailed rules e.g. filming of personal service (but we don’t need to know that much detail).

   2. Ground of jurisdiction: physical presence: Maharanee of Baroda v Wildenstein (high point): English court may assert jurisdiction based on mere transient physical presence, with no subject-matter connection.

• FACTS: Maharanee bought a painting in Paris from Wildenstein. Maharanee was also a resident in France (i.e. French D; French C). There was a dispute about whether the painting was what Wildenstein claimed it was. Wildenstein was only in the UK for a few days.

• HELD: Merely by being here in England, he had subjected himself to the jurisdiction of the English court, notwithstanding there was no predictable connection between the transaction for purchase of this painting in France by French D and French C, and English courts.

2. Companies:

   1. Companies incorporated or registered in England and Wales: Serve at principal office or at any place where it carries on its activities which has a real connection with the claim (CPR 6.9 and Cranfield v Bridgegrove) or at registered office or on any director or secretary under s.1139 Companies Act 2006. This basis of jurisdiction is limited to companies incorporated in England: Sea Assets v PT Garuda (No.1).

   2. Foreign companies (i.e. ‘any other company’ in CPR 6.9): Can be served at any place where it carries on its activities or any place of business within the jurisdiction.

      1. A reasonably fixed & permanent place which is obvious as a place at which the company’s business is done: Dunlop v Cudell:

• FACTS: The foreign company—Cudell—were exhibiting and selling cars at a stall at a trade fair. C claimed the car had tyres which infringed… Were C present? They had a stall at the trade fair for 9 days.

• HELD: They were carrying on their business. They were at a fixed place—had hired a stall at the trade fair—and even if they were only there for a limited time, that was reasonably permanent.

  1. Usually need agent who can bind the company: Lakah v Al-Jazeera: In order to be the foreign company’s place of business, usually need an agent who can bind the foreign company. The agent must be doing the foreign company’s business, not its own business, done at that place.

• FACTS: C wanted English courts to assert jurisdiction over the big Al-Jazeera, claiming that its associated company (Al-Jazeera UK) were doing business in England.

• HELD: This associated company could not bind the foreign company to contract. Al-Jazeera UK was not therefore doing Al-Jazeera’s business.

  1. (The alternative jurisdiction taken over foreign companies under Companies Act 2006 is now less important—so don’t need to worry too much about it. CPR 6.9 is permissible and wider: Saab v Saudi American Bank.)

  2. Doesn’t need to be matters related to place of business: Jurisdiction on this ground is not apparently limited to matters related to the place of business (cp Art.7(5) BIRR).

  3. Alternatively: Person in senior position: Can serve on a person in a ‘senior position’ in the company (CPR R 6.5(3)(b)): ‘A claim form is served personally on… (b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation.’ (cite Lakah v Al-Jazeera).

• Mere presence? Mere presence within the territory of a person in a senior position is probably sufficient to ground jurisdiction; after all, exercise of jurisdiction is subject to the discretion.

3. D not present in England but accepts service: For example, by providing an address for service in contract (CPR Rule 6.11) or by authorising his solicitors (CPR Rule 6.7). A jurisdiction agreement usually provides an address in England for service. That provides both the ground & method of service.

4. D not present in England but has submitted to the court’s jurisdiction: i.e. by appearing and arguing merits of the case (not merely arguing as to the English court’s jurisdiction). CPR Part 11 provides the procedure for challenging jurisdiction (see below).

   1. Asking for stay of proceedings submitting: Williams & Glyns v Astro.

5. D not present in England but has provided a method for service in a contract: Must serve in accordance with the contract (CPR R 6.11). This is a common feature of a jurisdiction agreement but can be free-standing. Or if a solicitor has been authorised to accept service on D’s behalf (CPR 6.7).

6. Contract made in England through an agent in England: in a matter relating to that contract, serve on the agent: CPR R 6.12.

7. If D counterclaims: C abroad subjects himself or herself to the jurisdiction of the English court if D counterclaims in the same proceedings of a related matter: High Commr for India v Ghosh.

8. Challenges to exercise of jurisdiction based on service within jurisdiction: CPR Rule 11 provides two types of challenge:

   1. As to the ground and/or the manner of effecting service: e.g. D did not in fact have a place of business or that C did not in fact serve in the correct manner.

   2. Stays of English actions on grounds of forum non conveniens: CPR R 11 also permits a challenge to the jurisdiction on the basis that although everything has been formally done to serve the claim form within the jurisdiction, England is not the proper place to hear the claim. Where D has been served with claim form within the jurisdiction English court may stay its own proceedings at D’s application.

      1. The D has to show that there is another clearly more appropriate forum in which justice can be done at substantially less expense and inconvenience.

      2. Backstop provision/second stage: Even if another clearly more appropriate forum is shown, proceedings will continue in England if C can show that C will be deprived of a ‘legitimate juridical advantage’ in that court which is available to the C in England: The Spiliada.

1. Apply for permission in writing: If D is not present in England, C will have to apply for permission¹ to serve the proceedings outside the jurisdiction. An application must be made in accordance with CPR 6.37.

   1. Permission to serve out is not necessary if the claim is within BIRR (CPR 6.33(v)), e.g.

• if the matter is within Art.24 BIRR, or

• D is domiciled in England, or

• a...