#3621 - Jurisdiction Under English National Rules Cases - Conflict of Laws

JURISDICTION UNDER ENGLISH NATIONAL RULES

Service Within Jurisdiction

Personal Service

Maharanee of Baroda v Wildenstein [1972]

C wished to serve D, a French art dealer. Validly did so whilst he was on a temporary visit to country attending Ascot races.

‘Place of Business’

Rakusens Ltd [2001]

Defendant company’s business card listed address of that company’s agent as D’s place of business in the UK. C served claim on this address. Held:

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

• must be place of business of D himself

• On facts, was nothing to suggest that address was that of D rather than simply D’s agent.

Dunlop Pneumatic Tyre Co [1902]

D ran exhibition at a trade fair in London. Held that this sufficed to make D ‘carrying on business’ in UK. Thus claim could be served upon it.

Cleveland Museum of Art v Capricorn Art International [1990]

• Art dealer’s house held to be place of business as it contained works of art

• Thus document was validly served there.

Lakah Group v Al-Jazeera [2003]

C alleged they had validly served D at their London offices. D had made statements on its website and in interviews to effect that it had an office in London, and a bureau chief in London. Held:

• These statements were to promote D as a broadcaster.

• and NOT for purpose of showing D as a corporate entity operated in London.

• therefore statements had no bearing on whether D had a place of business in UK.

• A place in which D has no more than a transient or irregular connection is not a ‘place of business’ of the company for purposes of CPR Rule 6.9.

Service Out of Jurisdiction

Procedure and Standards

Bas Capital Funding v Medfinco [2004]

Attempt was made to serve a Maltese defendant out of jurisdiction. C made multiple claims, the validity of which D disputed. Held:

• A small number of contractual claims did have a valid basis.

• thus English courts had jurisdiction to hear this limited number of claims.

• however this did NOT mean English courts had jurisdiction to mean the invalid claims.

Grounds of Jurisdiction

Domicile

High Tech International v Deripaska [2006]

Issue was whether D, a Russian national, could be said to be resident in England so that the English courts had jurisdiction to hear claims in Russian law against him. D owned two large houses in UK and made frequent visits for business purposes. Held:

Facts

• On facts:

1. D owned 20 properties in various countries.

• Thus use to which they were put suggested they were mere ‘stopovers’

• And NOT homes

2. D’s business trips to UK were ancillary to conduct of his Russian businesses

• Thus D not resident in UK.

Joinder and Collateral Claims

Multinational Gas Co v Multinational Gas Services Ltd [1983]

C sued a subsidiary company in UK, then sought to join parent companies as co-Ds. Was argued that parent companies were not “proper parties” to case, as C’s main motive for suing subsidiary was to allow English courts to get jurisdiction over parent companies through joinder as co-Ds. In addition, subsidiary was bankrupt so would be unable to pay any compensation ordered by court. Held:

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

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

• Thus even though D1 is bankrupt, does not mean parent oil companies not proper parties.

• Is not D1’s ability to meet judgment that is relevant

• But rather the strength of case against him

Credit Agricole v Unicof [2004]

C provided financing for coffee venture; venture collapsed, and C launched claims against multiple defendants, some of whom were domiciled in UK. Was found that UK courts had jurisdiction against first 8 Ds. 9^th D had falsely certified that coffee was being stored in a warehouse in Kenya and D wished to sue for deceit. Issue was whether 9^th D was a proper party to case. Held:

• Where issues concerning D2 are the same or closely connected to those concerning D1, D2 may be joindered.

• In this case, allegations of deceit arose from same facts as claims against first 8 Ds.

• Thus 9^th D could be joindered.

Contract

British Aerospace v Dee Howard [1993]

Contract contained clause stating that English courts “shall have jurisdiction to entertain any action”. D claimed English courts’ jurisdiction was not exclusive. Held:

Exclusive Clause

• Even if clause not stated to be excusive, implication may lead to conclusion that it is exclusive.

• On facts, reference to “any action” should be construed as “all actions”.

• Thus jurisdiction clause was exclusive

• Otherwise would be no point submitting claims before English courts.

Sharab v Prince Al Saud [2009]

Oral contract made in London restaurant for work as an agent for purchase of aircraft. C sued for non-payment. Under English law, unless otherwise stipulated payment is to be made at place where contract is concluded. Held:

• Breach (the non-payment of D) occurred in England.

Tort

Cooley v Ramsay [2008]

C injured in car accident in Australia, and attempted to sue for economic loss arising as result of this in UK. Held:

• C could serve out of the jurisdiction.

• Consequential loss constitutes damage for purposes of para. 3.1.(9).

ABCI v Banque Franco Tunisienne [2003]

C relied upon what it alleged to be fraudulent advice when investing in a company. The advice was issued abroad, but C claimed that decision to make investment took place in London viafunds from its Swiss bank account. Held:

• English courts had no jurisdiction under either of para 3.1 (9) grounds

Sustained In England

• Bank account out of which funds were invested was situated in Switzerland.

• Thus clear that financial loss suffered as result of alleged tort occurred in Switzerland.

Resulted From Act Within England

• “Act” must be that of tortfeasor

• Thus relevant act was the provision of advice

• And NOT C’s subsequent reliance upon that advice.

• Thus the act took place abroad, and not in UK.

Forum Non Conveniens/Forum Conveniens

Spiliada Maritime Corp. v Cansulex [1987]

Liberian owned vessel was chartered to transport cargo from Canada to India. Bill of lading was governed by English law. Vessel was damaged by sulphur loaded onto ship in Canada, and owners got permission to serve process on Cansulex, a Canadian company it deemed responsible for damage. Canadian defendants applied for stay of proceedings.

A case in respect of defective loading of sulphur was also pending before English courts against same defendant (Cansulex), in which facts were substantially similar to those in The Spiliada; however in second case, claimant ship-owners were English. This case had proceed to trial. Held:

Lord Goff

• See notes for test.

Cambridgeshire Factor

• English courts in The Cambridgeshire had accumulated vast expert knowledge in relation to sulphur corrosion.

• This knowledge should not be put to waste by forcing C to litigate in Canada.

• Thus this factor militates against stay.

Facts

• Most factors suggested Canada was appropriate forum.

• However Cambridgeshire factor was decisive.

Berezovsky v Forbes [1999]

C was Boris Berezovsky; sued D, Forbes magazine, in England over alleged libellous statement made in magazine. Only 1,000 copies of magazine had been produced in England. D applied for stay of proceedings. Held:

• Application for stay of proceedings rejected.

• English courts had jurisdiction to hear case.

• Correct test in relation to torts was that in Albaforth.

  • Spiliada does not affect this test.

Applicable Law

The Nile Rhapsody [1992]

Egyptian cruise company entered into contract with D, British holiday company. After D breached contract, C attempted to sue in England. Contract stated that “this agreement shall be governed by Egyptian law”, but failed to state that Egyptian courts had jurisdiction. D claimed this was an oversight and that parties had orally agreed to create jurisdiction clause in favour of Egypt. Held:

• Was enough evidence of prior agreement to effect that contract would have Egyptian jurisdiction clause to justify rectification to allow Egyptian jurisdiction clause.

• Thus oral jurisdiction agreement found to exist.

The Cambridgeshire Factor

SNI Aerospatiale [1987]

• Engineering issues which had been raised in proceedings in Texas were nowhere near as complicated as scientific matters in Spiliada.

• Thus any knowledge accumulated by lawyers in Texas proceedings was only minimal and could be easily learnt by lawyers in other jurisdictions.

• Thus no stay granted.

Royal and Sun Alliance v Rolls-Royce [2010]

Insurance claim was brought in relation to liability for broken propellers on ship manufactured by Rolls-Royce. Numerous claims in tort had also been brought in Florida by various cruise companies. Courts and lawyers in Florida had built up much expert knowledge as to what went wrong with propellers. D claimed that in light of this, case should be stayed in favour of Florida. Held:

• If claim in England had been in tort, Cambridgeshire factor would have been decisive in justifying grant of stay.

• However claim here related to insurance

  • Thus technical knowledge was not necessary to decide case.

• Thus Cambridgeshire factor irrelevant.

Multiple Parties

Bouygues Offshore [1998]

C’s barge was lost in a storm whilst being towed off South Africa. C brought separate proceedings in against number of parties in England as well as South Africa. All Ds but one obtained antisuit injunctions in England against South African proceedings, on grounds that contracts had exclusive English jurisdiction clauses. C...