#10463 - Unit 2 – Jurisdiction - Commercial Dispute Resolution

Unit 2 – Jurisdiction Consolidation

OUTCOME 1 – How to apply to courts of E&W on how to apply to the courts of England & Wales for permission to serve the claim form out of jurisdiction

reg = regulations

D = Defendant

C = Claimant

DJ = Default judgement

E&W= England and Wales

ack = acknowledgement

Suing D from outside EU while he is in England:

• Individual D – English courts can hear proceedings if they are served on D while he is in England (no matter how briefly)

• Corporate D – English courts can hear proceedings if they are served on co at established place of business within the jurisdiction s.1139 CA06. Claim form must be addressed to the person whose name has been delivered to the Registrar of co’s as a person resident in Britain authorised to accept service on co’s behalf

> If D is a company outside the EU it is NOT possible to serve the companies directors while they are in the EU. This is however possible for D company within the EU, can serve their directors if they are domiciled in E&W – art 2 Brussels Reg

Suing outside of EU:

• Claim form must be accompanied by practice form N510 setting out the grounds under r6.33 which C relies

Permission to serve out of jurisdiction

• First state why r6.32 and r6.33 do not apply (e.g. D is domiciled in USA where Civil Jurisdiction and Judgements Act 1982 doesn’t apply and the USA isn’t a party to the Lugano Convention)

> r6.37(1) – Application for permission to serve abroad under r6.36 must set out:

a) C must show the matter falls within PD6B para 3.1

• Important grounds:

• Contract [3.1(6)(c) and (d)]made within jurisdictions/governed by English law/jurisdiction clause

• Breach of contract committed within the jurisdiction

• Tort [3.1(9)(a) and (b)] where the (damage was sustained/act leading to act damaged committed) within the jurisdiction

• 3.1(3) [CO-D’s] Claim made against D on whom claim form served and there is between C and D a real issue to be tried and C wishes to serve claim form on another person who is a necessary/proper party to that claim When this grounds is used application must also state the grounds on which C believes that there is between C and D a real issue which it is reasonable for court to try

2. Even if para 3.1 applies, C will not be given permission unless he also establishes the claim has a reasonable prospect of success and that England is the most convenient place for the case to be tried – Spiliada Maritime Corp v Cansulex ltd The Spiliada (1987)

3. D’s address or if not known, in what place D likely to be found

• C applies for permission without notice and supporting evidence must deal with matters above and give details that cast doubt on app

• Permission is granted for one country at a time

• App notice form N244 and a WS (CPR23) must be used

• Once permission granted to serve out of jurisdiction then serve on D

• Claim form must be served within 6 months after the date of issue (no matter what the law of country it is being served in is)

• r6.37(5)/PD 7.2 – D has [number of days depending on country specified in PD7.2] from service (there is no deemed service outside E&W) of POC to respond

• PD 6.4 -Filing ack of service buys D a further 14 days to file a defence

Methods of Service:

• By method permitted by laws of country where it is effected through the govt of the state or British Consul

• Where state is a signatory to Hague convention – C may request court arranged service by central authority

• Senior Master at the foreign process section of RCJ will arrange for docs to be forwarded to British consul, govt dept or judicial authority of state where service to take place

Service of docs subsequent to the claim form

• R6.38(1) – if permission required to serve claim form outside of juris – permission also needed for other docs

• R6.38(2) – POC is an exception to the above

• R6.23(2) – In most cases permission will not need to be sought as D is obliged to give an address in UK (D sol) and if the address is in Scotland or Northern Ireland then permission isn’t required r6.38(3)

Part 20 Claims:

• Where D issues part 20 TP claim form and TP outside of EU permission will be needed (unless it is a counterclaim then isn’t)

Default judgment:

• If D doesn’t ack or serve defence, C does not have to make a special app as court always satisfied itself that is does have jurisdiction.

• C makes formal app under part 23. Applies without notice with supporting evidence:

1. Why English court has jurisdiction;

2. How claim form was served; and

3. That no other court has exclusive jurisdiction

OUTCOME 2 – Apply the rules on jurisdiction to cases involving D outside EU and advice on whether courts of E&W will accept jurisdiction

1. Is D of EU domicile/seat? If so, use 44/2001 instead.

2. Can D be served within E&W?

• For instance, at airport if flying in

3. If not, permission to serve out required under CPR 6.36:-

   1. Any PD 6B grounds apply (para 3.1)? Must state by CPR 6.37(1)(a). Especially relevant are:-

i. General:

1. Claim is for injunction ordering D to do/refrain from doing an act within jurisdiction

1. Co-Defendants

   1. Claim made against person other than D (who CF been served on) 3.1(3) and:

1. there is a real issue which it is reasonable for the court to try

b) C wishes to serve the CF on another person who is a necessary/proper party to the claim/additional claim

2. Claim is an additional claim under r20 and person to be served is necessary or proper party to claim/additional claim 3.1(4)

1. Claims in relation to contracts:

   1. Contract made within the jurisdiction – 3.1(6)(a); or

   2. Contract made by or through an agent in the jurisdiction – 3.1(6)(b); or

   3. Contract governed by English law – 3.1(6)(c); or

   4. Contract contains a jurisdiction clause giving jurisdiction to E&W – 3.1(6)(d); or

      • A jurisdiction clause is not conclusive on its own, court will still need to be satisfied that E&W is the proper place for proceedings (6.37(3))

   5. Breach of contract committed in jurisdiction – 3.1(7); or

   6. Claim that no contract exists, but if existed would comply with 3.1(6) – 3.1(8)

2. Claims in tort:

   1. Damage sustained in the jurisdiction – 3.1(9)(a)

   2. Damage sustained from an act committed in the jurisdiction – 3.1(9)(b)

3. Claims relating to property/Trusts

   1. Whole subject matter of the claim relates to property within the jurisdiction – 3.1(11)

   2. Claim about trusts and ought to be executed according to English law and person who CF about to be served on is trustee of trustees 3.12(a) and (b)

1. Claim have reasonable prospect of success? – CPR 6.37(1)(b)

2. Is E&W the proper place to bring the claim – CPR 6.37(3) C will not be given permission unless he also establishes the claim has a reasonable prospect of success and that England is the most convenient place for the case to be tried – Spiliada Maritime Corp v Cansulex ltd The Spiliada (1987)

   1. England and Wales is the natural forum for the trial

> Location of subject matter or contract performance, witnesses, lawyers, documents etc.

2. There is no other jurisdiction that is more appropriate

4. If yes to a, b & c, permission will be granted.

OUTCOME 3 – Apply the rules of jurisdiction to cases involving D inside EU and advise client of appropriate jurisdiction

It is possible to seek interim relief such as injunction in the courts of any MS in aid of proceedings being taken elsewhere in the EU if it is just and convenient to do so (client gets a choice if more than one article is satisfied)