#4799 - Jurisdiction Over Foreign Matters - Civil Litigation

The Regulation regulates all EU member states. The court’s permission is not required to serve a CF outside the jurisdiction if the claim is one which the UK courts have power to hear under the Regulation.

To determine whether permission is required to serve a CF outside the jurisdiction, apply the 3-step test:

This is a two-step question:

1. There must be a CONNECTION between the situation and the Regulation (CPR 6.3):

   1. There must be a link between the proceedings and the territory of member states bound by the Regulation.

   2. It cannot be internal to 1 state – there must be a CROSS-BORDER ELEMENT.

   3. There will be a connection if the defendant is domicile in a Regulation State:

      1. a.60 – a company is domicile if it has its statutory seat, central administration or principal place of business in a certain jurisdiction.

      2. a.60(2) – a company is domicile in the UK if it has its registered office in the UK.

      3. For partnerships, the domicile is where the partners are domiciled.

      4. Article 22 – exclusive jurisdiction; there will be a connection if the exclusive jurisdiction rules apply.

         1. a.22.1 – land – courts in the MS in which the property is situated have E.J.

         2. a.23 – choice of forum clause in the contract – if there is one of these, there may also be a connection; have the parties agreed the courts of a MS have jurisdiction? Is at least 1 parties an EU domicile?

2. The matter must fall within the SCOPE of the Regulation:

   1. The scope of the Regulation is referred to in Article 1.

   2. The Regulation applies in civil and commercial matters.

This is referred to in CPR 6.33(1).

• The General Rule:

  • a.2 – a person domiciled in a MS must be sued in their MS.

  • a.3 – if someone is temporarily present in a jurisdiction, it is not possible to obtain jurisdiction simply by serving proceedings.

• The Special Jurisdiction rules: these provide alternatives to the general rule,

  • a.5.1 – contract – in matters relating to a contract, a person domiciled in a MS may be used in the place of performance of the obligation in the contract.

  • a.5.3 – tort – the place where the harmful event occurred is the place where the party may be sued.

  • a.5.5 – branch – where the branch situated

• The ‘Weaker Party’ exceptions:

  • In some contractual relationships characterised by an imbalance in power between the parties, the weaker party can only be sued if the MS they are domiciled.

• The Submission Rule:

  • a.24 – if someone enters an appearance at court, they are deemed to be submitting to the jurisdiction.

  • You DO NOT submit if you file an acknowledgement of service and indicate an intention to contest jurisdiction.

  • You DO submit if you file a defence.

• The choice of jurisdiction rule:

  • a.23 – the parties may agree that a court will have jurisdiction if they have agreed the courts of 1 MS have jurisdiction and 1 party is domicile in an EU MS.

1. Exclusive jurisdiction rule

2. Rules on submission

3. Jurisdiction clauses

4. Other rules

• The essential question is whether there are any other proceedings in existence between the parties concerning the same claim, in the courts of any MS.

• Lis pendens – a.27 – where proceedings involving the same cause of action and between the same parties are brought in the courts of different MS’s, the court first seised has jurisdiction. Any other court must decline jurisdiction in favour of that court.

  • Related actions – a.28 – the above rule applies to related actions. Actions are related where they are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments.

  • Court first seised – a.30 – a court is first seised when proceedings are instituted there.

Step 2: apply Common Law rules (if no to Step 1)

Under Common Law rules, the English courts will have jurisdiction in the following circumstances:

1. Presence – where the proceedings are served on a foreign defendant within the jurisdiction

2. Submission – where the defendant submits to the jurisdiction of the English courts

3. Permission – where the English courts give permission to serve on a D outside the jurisdiction

• The general rule is that a foreign defendant will be subject to the jurisdiction of the English courts if proceedings are served on the D whilst the D is within the jurisdiction.

  • This is irrespective of the connection with England of the D with the cause of action (there can be no link with England whatsoever).

• Forum conveniens – to prevent unsuitable actions proceeding, the courts have discretion to stay proceedings if England isn't the convenient forum.

  • Once the proceedings have been issued, the burden of proof is on the defendant to show it is not convenient.

• Appearing in the proceedings – i.e. by acknowledging service and serving a defence (if D doesn't wish to submit they should acknowledge and declare an intention to dispute and apply under CPR 11 for a declaration that the English courts lack jurisdiction to hear the dispute.

The English courts may give permission to serve proceedings on a foreign D outside the jurisdiction. The application is made under CPR 23. There will not normally be a hearing and the D will not receive notice of the application.

There is a 3-step test. In accordance with CPR 6.37, the application should be supported by written evidence demonstrating:

1. **The grounds on which the application is made and the relevant paragraph of PD 6B para 3.1 relied on.

2. That the claimant believes the claim has a reasonable prospect of success.

3. That England is the proper place in which to bring the claim – this will be the place in which the action has the most real/substantial connection. Consider:

   1. Residence/place of business of the D

   2. Availability of witnesses

   3. Local knowledge

It is purely discretionary.

• If the D wishes to challenge the decision of the court to grant permission on the grounds that England isn't the most convenient forum then the burden of proof on the defendant to persuade the court of this.

• They have to convince the court that the cause of action should be held elsewhere.

Other procedural aspects

A claimant may/may not need permission from the court to serve proceedings on a D outside the jurisdiction:

• No permission: if the Regulation applies and the English courts have and accept jurisdiction, the claimant won't need permission to serve the proceedings on the D outside the jurisdiction – CPR 6.32-33.

  • Where this occurs, the C must file with the CF a Notice containing a statement of the grounds on which the C is entitled to serve the CF out of the jurisdiction – CPR 6.34.

• Permission: this is the Common Law Rules – if the D is physically located outside the jurisdiction, permission will be needed to...