SGS 10- Jurisdiction over foreign matters
Jurisdiction over Foreign Matters
Terminology:
Governing law = the system of law that governs the underlying situation for example, how the terms of a contract should be
interpreted.
Jurisdiction = the country’s courts that will hear the case and interpret the law
If one party is based in the UK and the other for eg Germany and say the contract was performed abroad, that could be
jurisdictional issue.
Common Law Rules
- E&W courts will generally jurisdiction over a defendant abroad in the following:
1. Presence- where proceedings are served on the foreign D when that D is actually in E&W
2. Submission- where D submits to the jurisdiction of the courts either explicitly or impliedly
3. Permission- where the courts of E&W grant the claimant permission to serve English proceedings on the foreign D
out of the jurisdiction.
1. Presence
General rule – a foreign D will be subject to the jurisdiction of E&W if proceedings are served on that D whilst he is within the
jurisdiction.
D does not have to be in the jurisdiction permanently (such as a office branch), it could be temporary (such as on holiday)
CPR 6 sets out the methods of service including personal service of claim forms.
Companies
- Generally, it is unlikely that a claim form could be served personally when handed to a director of a foreign company which
has no presence in E&W and when such director is here only temporarily
- 6APD6.1 refers to personal service on “registered companies or corporations” under CPR 6.5(3). And 6.5(3)(b) should not
apply to foreign companies that have no presence within the jurisdiction.
Forum conveniens
- E&W courts have discretion to stay proceedings if E&W is not the forum conveniens
- Once proceedings have commenced in E&W, the defendant must show that E&W is not the forum conveniens and that the
claim should be stayed.
- The defendant must show there is another more appropriate court than E&W for trial of action.
- Spiliada Maritime Corporation v Cansulex Ltd 1987
Breach of jurisdiction agreement in favour of a foreign court
- If D can show there is a valid jurisdiction agreement to bring the matter to a foreign court, D can challenge.
- However, E&W are not bound to grant a stay and has discretion to do so and will only do so when C can show a strong cause
for not doing so.
2. Submission
- A foreign defendant will be subject to E&W jurisdiction if it submits to the jurisdiction
- Can be done by appointing an agent for service or instructing a solicitor in E&W to defend proceedings or accept a claim form
and as such, the proceedings are served on the foreign party’s solicitor in E&W or appear in the proceedings
- If D gives a business address of a solicitor, see CPR 6.7
Appearing in proceedings
- If the foreign D takes a step in the proceedings ie by serving a defence for example they may have submitted
Avoid submitting:
1. The foreign D should not do anything more than acknowledge service of the claim form which indicates an intention to
dispute jurisdiction; and
2. Apply under CPR 11 for a declaration that the E&W court lacks jurisdiction to hear the dispute (appearing to contest
jurisdiction does not constitute submission.
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, SGS 10- Jurisdiction over foreign matters
3. Permission
- When D is not present in the jurisdiction, E&W courts may give a claimant permission to serve out of the jurisdiction under
CPR 6.36
Applications
- Made under CPR 23 (discretionary). Applicant files application notice and evidence in support. D will not receive notice of the
application. So C must give full and frank disclosure and follow without notice rules.
Test (court has discretion):
CPR 6.37 provides the application should be supported with written evidence demonstrating:
1. the grounds upon which the application is made and the relevant paragraph of 6BPD3.1 is relied on (6.37(1)(a))
2. that C believes that its claim has a reasonable prospect of success (6.37(1)(b)); and
3. that E&W is the ‘proper place’ to bring the claim (6.37(3)).
4. state D’s address or what country he is likely to be found
Step 1- 6BPD3.1 ground
- Applicant must show to court that it has jurisdiction within one of the grounds set out in 6BPD3.1
a) General ground- injunction para 3.1(2)
o A claim is made for an injunction order D to do or refrain from doing an act within the jurisdiction.
b) General ground- necessary or proper party para 3.1(3)
o Where C wants to serve on a third party who is necessary or proper party to the claim.
c) General ground- same or closely connected facts para 3.1(4A)
o Where a claim is already been made against D and a further claim is made against the same D which arises out of the
same or closely related facts
d) Contract- para 3.1(6) and (7)
i) A claim is made in respect of a contract where:
a) The contract was made within the jurisdiction;
b) The contract was made by or through an agent trading or residing within the jurisdiction; or
c) The contract is governed by English Law.
ii) A claim is made in respect of breach of contract committed within the jurisdiction.
e) Tort- para 3.1(9)(a)&(b)
o A claim is made in tort where:
a) The damage was or will be sustained within the jurisdiction; or
b) The damage which has or will be sustained results from an act committed, or likely to be committed,
within the jurisdiction.
Notes: Here consider where the damage or breach happened. Probably likely to apply the tort limb so think did the damage happen in
E&W?
Step 2- reasonable prospect of success
- Applicant must show a reasonable prospect of success in the cause of action 6.37(1)(b) (this is not a difficult test to meet)
Step 3- E&W is the proper place to bring the claim (forum conveniens)
- The court will refuse permission if E&W is not the forum conveniens
- The burden is on the claimant to show that E&W is the forum conveniens
Forum convenien: court’s considerations applying Spiliada case
The court will consider the below in working out whether E&W is the forum conveniens, apply to facts:
Is the defendant resident or place of business in E&W?
Is the governing law of the matter English law? If yes then this will be a factor of E&W being the forum conveniens.
Are the witnesses available? Are they in E&W?
Would local knowledge help?
Is it necessary to fly out witnesses and experts? Is there real evidence physically present in other jurisdiction?
Cost/delay/inconvenience of proceeding elsewhere.
Can a fair trial be heard in the other jurisdiction?
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Jurisdiction over Foreign Matters
Terminology:
Governing law = the system of law that governs the underlying situation for example, how the terms of a contract should be
interpreted.
Jurisdiction = the country’s courts that will hear the case and interpret the law
If one party is based in the UK and the other for eg Germany and say the contract was performed abroad, that could be
jurisdictional issue.
Common Law Rules
- E&W courts will generally jurisdiction over a defendant abroad in the following:
1. Presence- where proceedings are served on the foreign D when that D is actually in E&W
2. Submission- where D submits to the jurisdiction of the courts either explicitly or impliedly
3. Permission- where the courts of E&W grant the claimant permission to serve English proceedings on the foreign D
out of the jurisdiction.
1. Presence
General rule – a foreign D will be subject to the jurisdiction of E&W if proceedings are served on that D whilst he is within the
jurisdiction.
D does not have to be in the jurisdiction permanently (such as a office branch), it could be temporary (such as on holiday)
CPR 6 sets out the methods of service including personal service of claim forms.
Companies
- Generally, it is unlikely that a claim form could be served personally when handed to a director of a foreign company which
has no presence in E&W and when such director is here only temporarily
- 6APD6.1 refers to personal service on “registered companies or corporations” under CPR 6.5(3). And 6.5(3)(b) should not
apply to foreign companies that have no presence within the jurisdiction.
Forum conveniens
- E&W courts have discretion to stay proceedings if E&W is not the forum conveniens
- Once proceedings have commenced in E&W, the defendant must show that E&W is not the forum conveniens and that the
claim should be stayed.
- The defendant must show there is another more appropriate court than E&W for trial of action.
- Spiliada Maritime Corporation v Cansulex Ltd 1987
Breach of jurisdiction agreement in favour of a foreign court
- If D can show there is a valid jurisdiction agreement to bring the matter to a foreign court, D can challenge.
- However, E&W are not bound to grant a stay and has discretion to do so and will only do so when C can show a strong cause
for not doing so.
2. Submission
- A foreign defendant will be subject to E&W jurisdiction if it submits to the jurisdiction
- Can be done by appointing an agent for service or instructing a solicitor in E&W to defend proceedings or accept a claim form
and as such, the proceedings are served on the foreign party’s solicitor in E&W or appear in the proceedings
- If D gives a business address of a solicitor, see CPR 6.7
Appearing in proceedings
- If the foreign D takes a step in the proceedings ie by serving a defence for example they may have submitted
Avoid submitting:
1. The foreign D should not do anything more than acknowledge service of the claim form which indicates an intention to
dispute jurisdiction; and
2. Apply under CPR 11 for a declaration that the E&W court lacks jurisdiction to hear the dispute (appearing to contest
jurisdiction does not constitute submission.
1
, SGS 10- Jurisdiction over foreign matters
3. Permission
- When D is not present in the jurisdiction, E&W courts may give a claimant permission to serve out of the jurisdiction under
CPR 6.36
Applications
- Made under CPR 23 (discretionary). Applicant files application notice and evidence in support. D will not receive notice of the
application. So C must give full and frank disclosure and follow without notice rules.
Test (court has discretion):
CPR 6.37 provides the application should be supported with written evidence demonstrating:
1. the grounds upon which the application is made and the relevant paragraph of 6BPD3.1 is relied on (6.37(1)(a))
2. that C believes that its claim has a reasonable prospect of success (6.37(1)(b)); and
3. that E&W is the ‘proper place’ to bring the claim (6.37(3)).
4. state D’s address or what country he is likely to be found
Step 1- 6BPD3.1 ground
- Applicant must show to court that it has jurisdiction within one of the grounds set out in 6BPD3.1
a) General ground- injunction para 3.1(2)
o A claim is made for an injunction order D to do or refrain from doing an act within the jurisdiction.
b) General ground- necessary or proper party para 3.1(3)
o Where C wants to serve on a third party who is necessary or proper party to the claim.
c) General ground- same or closely connected facts para 3.1(4A)
o Where a claim is already been made against D and a further claim is made against the same D which arises out of the
same or closely related facts
d) Contract- para 3.1(6) and (7)
i) A claim is made in respect of a contract where:
a) The contract was made within the jurisdiction;
b) The contract was made by or through an agent trading or residing within the jurisdiction; or
c) The contract is governed by English Law.
ii) A claim is made in respect of breach of contract committed within the jurisdiction.
e) Tort- para 3.1(9)(a)&(b)
o A claim is made in tort where:
a) The damage was or will be sustained within the jurisdiction; or
b) The damage which has or will be sustained results from an act committed, or likely to be committed,
within the jurisdiction.
Notes: Here consider where the damage or breach happened. Probably likely to apply the tort limb so think did the damage happen in
E&W?
Step 2- reasonable prospect of success
- Applicant must show a reasonable prospect of success in the cause of action 6.37(1)(b) (this is not a difficult test to meet)
Step 3- E&W is the proper place to bring the claim (forum conveniens)
- The court will refuse permission if E&W is not the forum conveniens
- The burden is on the claimant to show that E&W is the forum conveniens
Forum convenien: court’s considerations applying Spiliada case
The court will consider the below in working out whether E&W is the forum conveniens, apply to facts:
Is the defendant resident or place of business in E&W?
Is the governing law of the matter English law? If yes then this will be a factor of E&W being the forum conveniens.
Are the witnesses available? Are they in E&W?
Would local knowledge help?
Is it necessary to fly out witnesses and experts? Is there real evidence physically present in other jurisdiction?
Cost/delay/inconvenience of proceeding elsewhere.
Can a fair trial be heard in the other jurisdiction?
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