#3622 - Jurisdiction Under English National Rules - Conflict of Laws

JURISDICTION UNDER ENGLISH NATIONAL RULES

• Under traditional rules, English courts have jurisdiction in three situations:

1. Service in the jurisdiction

• If D is present in England when a claim form is served upon him

2. Submission

• If D submits to English courts’ jurisdiction

3. Service out of the jurisdiction

• If claim falls within Practice Direction 6B of Civil Procedure Rules

• If court then decides England is appropriate forum, can give permission under CPR Rule 6.36 to serve claim form out of jurisdiction

1. SERVICE IN THE JURISDICTION

CPR Rule 6.3+6.5

• Service can be effected either by:

1. First Class Post

2. Leaving it with D himself

CPR Rule 6.8

• For postal service, any individual/company may be served at an address given by them for purpose of service.

• Is only where no address is given that special rules of CPR 6.9/CA 2006 come into play.

Individuals

• Where D not domiciled in a Member State, courts have jurisdiction if claim form is served on him in England.

• Claim form can be served even if D only in England temporarily.

• i.e. jurisdiction on basis of D’s presence very wide.

• Maharanee of Baroda v Wildenstein [1972]

• However if C fraudulently induces D to come to England simply to be able to serve him, may be struck out as abuse of process.

• CPR 6.9: if individual leaves no address for purposes of CPR 6.8, individual may be served at usual or last known residence.

Companies

• If no address for service is given under CPR 6.8, non-EU companies with a place of business in England may be served under either:

1. Companies Act 2006; or

2. CPR Rule 6.9

1. Companies Act 2006

• Section 1046: overseas companies that “open a UK establishment” are required to register particulars with Registrar of Companies.

• such companies must give address of every person in UK authorised to accept service on behalf of company

Companies

• Section 1139: where overseas company’s particulars are registered under CA 2006, document may be served upon it by:

1. leaving it or sending it by post to registered address of anyone resident in UK authorised to accept service on behalf of company; or

2. leaving it or sending it by post to any place of business of company in UK

• Rules in Companies Act do not exclude the relevant provisions of CPR.

• i.e. they are simply an alternative

• Saab v Saudi American Bank [1999]

Individuals Within Companies

Overseas Companies Regulations 2009

Section 75

• Service may be effected upon an overseas company with registered particulars in UK by sending document to:

1. Directors

2. Secretaries; and

3. Permanent representatives

• This done by sending document to relevant person’s registered address.

• either in or outside of UK.

2. CPR Rule 6.9

• If company is not registered in England (and no address given), documents may be served at any place of business of company within England which has a real connection with the claim.

• Advantage over CA 2006:

  • Lesser degree of formality required to show “place of business”

  • i.e. no need for “establishment”

“Place of Business” (for purposes of both CA 2006 + CPR 6.9)

• No need for dispute to be connected with D’s activities in England.

• Service upon place of business of D’s agent does not suffice

• Rakusens Ltd [2001]

• Depending on type of business, even a home address may constitute ‘place of business’

• Cleveland Museum of Art v Capricorn Art International [1990]

  • Art Dealer’s house was place of business

Length of Activities

• No need for D’s business activities in England to be prolonged.

• e.g. one-week stall at a trade fair suffices

• Dunlop Pneumatic Tyre Co [1902]

• However can be no service at an address at which company has no more than temporary or transient connection.

• Lakah Group v Al-Jazeera [2003]

2. SUBMISSION

• For D to submit, must appear and argue merits of case

  • mere contesting of jurisdiction does not suffice

  • Re Dulles’ Settlement [1951]

• C submits to English courts for purposes of counterclaims against him

  • Balkanbank v Taher (No.2) [1995]

3. Service Out of the Jurisdiction

CPR Part 6.36 + 6.37

• Permission for service out of the jurisdiction will be granted by court if:

1. Any of grounds in Practice Direction 6B para 3.1 apply; and

2. Court satisfied that England is proper place in which to bring the claim

• For court to grant permission for service out of jurisdiction, C must show:

1. Good arguable case that claim falls within Practice Direction 6B

2. Reasonable prospect of success upon merits of the claim

3. England is forum conveniens

• Seaconsar Far East [1994]

1. “Falls Within PD 6B”

• Any ambiguity as to whether claim does fall under Practice Direction 6B resolved in favour of D.

• because D is not present at initial hearing.

• The Siskina [1979]

• Where issue turns on question of fact, C must show good arguable case that claim falls within para 3.1.

  • Good arguable case is “strong argument”

  • argument is strong even if it falls short balance of probabilities test.

    • C must simply have “at least the better of the argument”

  • Camperdown UK Ltd [2005]

• All aspects required to make out claim must have good arguable basis

  • e.g. for alleged breach of contract, C must show good arguable case that:

1. there was contract between C and D;

2. contract was breached by D; and

3. breach was committed in England

   • Is not enough for C to show that if there had been a contract and if it had been broken, the breach would have been committed in UK

   • Seaconscar [1994]

2. “Reasonable Prospect of Success”

• C must show that there is on merits a serious issue to be tried.

• Must be case that C’s chances of success are “real”.

• “real” being “more than fanciful”.

• Camperdown UK [2005]

3. “Forum Conveniens”

• See below.

Grounds for Service Out (Practice Direction 6B)

General Grounds

1. Domicile

2. Injunction

3. Counterclaims and third party claims

4. Interim remedy

Specific Grounds

1. Contracts

2. Tort

3. Restitution

4. Property located in UK

1. Domicile

• UK courts have jurisdiction if D is UK-domicile.

• Domicile construed in line with the CJJA 1982 s.41.

• High Tech International v Deripaska [2006]

  • i.e. D is domiciled in UK if he is:

1. resident; and

2. has a substantial connection with UK

• Whether someone is domiciled in UK question of fact and degree.

• High Tech International v Deripaska [2006]

• Ownership of property neither necessary, nor always sufficient.

• High Tech International [2006]

• NB ground (1) is a massive red herring

  • wherever D is domiciled within UK, jurisdiction automatically falls to be determined under Brussels Regulation.

  • hence ground (1) only relevant to determining whether a non-EU person is in fact domiciled in the UK

2. Injunctions

• UK has jurisdiction where claim is made ordering D to do, or to refrain from doing, an act within UK.

3. Joinder and Collateral Claims

1. Joinder

   • English courts have jurisdiction over third party defendant (D2) where:

1. There is between C and D1 a real issue which it is reasonable for court to try; and

2. D2 is a necessary or proper party to that claim

   • D2 can only be joined if D1 has, or will, be served

   • Relevant Factors

     • joinder possible where issues concerning D2 are the same or closely connected to those concerning D1

     • e.g. if certain claims made by C in relation to an event would fail without D2’s presence

     • Credit Agricole v Unicof [2004]

   • If C’s predominant reason for suing D1 is simply to bring D2 into jurisdiction, does not necessarily mean D2 is not proper party.

     • provided there is bona fide good cause of action against D1 in his own right, C’s motives for suing D1 irrelevant

     • Multinational Gas v Multinational Gas Services [1983]

2. Counterclaim

   • D2 may be joined where necessary for a claim for:

     • Contribution

     • Counterclaim by D1 against C

   • This only permissible where D2 is necessary or proper party

4. Interim Remedy

• Courts may grant interim relief in respect of proceedings which have been, or are about to be, commenced abroad.

• Interim relief: e.g. freezing orders against foreigner’s bank account

• Republic of Bolivia [2009]

5. Contract

6. C may serve out of England for breach of contract where contract:

1. was made in England;

2. was made through an agent in England;

3. is governed by English law; or

4. contains English jurisdiction clause

7. C may serve out where claim is made for breach of contract committed within England

8. C may serve out where claiming that a contract does not exist, if in event that contract existed it would fall under (6) or (7)

1. Made in England

   • Contract made in country in which acceptance of contract takes place.

   • Where instantaneous mode of communication used to make contract, contract made in country where acceptance is received.

     • Entores Ltd [1955]

   • Where contract is made in England but amended abroad, is made within England.

     • BP Exploration Co v Hunt [1976]

2. Governed by English Law

   • Ascertainment of governing law done via Rome Convention/Regulation

   • Even an express English choice of law clause not determinative

     • i.e. court will not grant permission to serve out/hear case if England not forum conveniens

     • Novus Aviation v Onur Air [2009]

3. English Jurisdiction Clauses

   • If contract has English jurisdiction clause, jurisdiction usually allocated by BIR Article 23.

     • Jurisdiction allocated by PD 6B para 3.1 where:

1. Subject-matter of dispute falls outside of BIR

2. Or neither party to contract is domiciled in Member State

   • Even if clause is not stated to be exclusive, may become exclusive via implication.

     • e.g. “English courts shall have jurisdiction over any actions” - may be construed as “all actions”

     • British Aerospace v Dee Howard [1993]

4. Claim in Respect of Breach...