LAWS3171 Commercial Conflicts of

Laws and International Litigation

Lecture 3: Common Law Rules of
Jurisdiction

Stephanie Law
s.law@soton.ac.uk
School of Law
Overview

When do the common law rules of jurisdiction apply?

How to establish jurisdiction under the common law

rules?

Valid service of process;

How do the rules operate?

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When do the common law rules of
jurisdiction apply?

Two regimes for jurisdiction of English courts in civil and

commercial matters:

1) Brussels Ibis Regulation;

2) Common law or national rules of jurisdiction.

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When do the common law rules of
jurisdiction apply?
Essentially – a question of when the Brussels Ibis
Regulation rules do not apply:

Look to Art 6 Brussels Ibis Regulation:

-Domicile of the defendant?

-Subject to certain provisions of Brussels Ibis Regulation,
which apply regardless of the defendant’s domicile;
-If defendant not domiciled in EU Member State  look
to national rules of jurisdiction.
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When do the common law rules of
jurisdiction apply?

This week: Civil Procedure Rules, Part 6 on service of

documents (
https://www.justice.gov.uk/courts/procedure-rules/civil
/rules/part06
);

Lecture 5: judicially-developed doctrines for multiple

proceedings, including forum non conveniens.
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How to establish jurisdiction?

Two key principles shape national law on establishing

jurisdiction:

-Jurisdiction is established by valid service of process;

-The exercise of jurisdiction by the national courts is

discretionary.

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How to establish jurisdiction?

What is meant by service?

Service of documents = delivery of documents to a

individual (or legal person) concerning a claim or legal
process initiated against them;
Service makes defendant aware of claim and gives
opportunity to defend or answer the claim.

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What is served? A claim form

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How to establish jurisdiction?

Rules on service exist in order:

to ensure that the defendant receives the documents in

a proper way;
so that they can exercise their rights of defence;
to ensure that proper safeguards are in place to
prevent abuse;
so that that action can be taken if documents are not
served properly.

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CPR Rules, Part 6

 CPR, Part 6 and Practice Direction (PD) 6A and 6B

Provides for a means of serving documents on a defendant

where:
1)the defendant is physically present “within the
jurisdiction” (PD 6A) and
2)the defendant is not physically present on the territory of
England and Wales, and thus has to be served “out of the
jurisdiction” (PD 6B).

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Service in and outside the jurisdiction
Bases and means of making service, foundations of
jurisdiction diverge, depending on defendant’s location:

-Bases of jurisdiction – when can service be made?

-Means – how is service made?
-Foundations of jurisdiction; English court’s jurisdiction
could be challenged if:
- Service made incorrectly;
- Another forum is most appropriate.

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Location of the defendant
Defendant within the jurisdiction:
-Service of claim form is enough;
-Service made “as of right”;
-No need for any other connection.

Defendant outwith the jurisdiction:

-Permission of English court required for service –
grounds to be established;
-Discretion of the English court.

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Service within the jurisdiction

Methods – how can service be made?

 CPR, Rule 6.3:

-A distinction is also drawn between service on natural

persons and service on companies:
- Reflects the grounds/bases on which service is
justified.

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Service within the jurisdiction

CPR, Rule 6.3: Service on natural persons:

 
(a) personal service;
(b) first class post, document exchange or other next-day delivery
service;
(c) leaving the claim form at a place specified in rule 6.7, 6.8, 6.9 or
6.10;
(d) fax or other means of electronic communication; or
(e) any method authorised by the court under rule 6.15.

Service usually made by the claimant’s solicitors in commercial

cases;
The court can also make service – the claimant receives a notice of
service. 14
Service within the jurisdiction

Grounds of jurisdiction – natural persons:

-presence in person on the territory;

Personal service

 Service to the individual; on the basis of CPR, Rule 6.5(3)(a)

Service on natural persons by post at residence

At last known address: on the basis of CPR, Rule 6.9(2)

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Service within the jurisdiction

Is there a minimum period of presence within the

jurisdiction?

See Maharanee of Baroda v Wildenstein [1972] 2 QB 283.

 Service at the residence of the defendant is good

service even if the defendant is not present in the
jurisdiction at the time of service - City & Country
Properties v Kamali [2007] 1 WLR 1219 (if
temporary, not permanent absence).

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Service within the jurisdiction

CPR, Rule 6.3(2): Service on legal persons:

can distinguish between companies incorporated in

England and Wales and foreign companies.

1) the CPR, Part 6, or

2) the Companies Act 2006.

Grounds of jurisdiction – legal persons:

- Presence by doing business.

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Service within the jurisdiction

1) CPR, Part 6 - companies incorporated in England and

Wales:

Who can be served?

- Rule 6.5(3)(b) – a person holding a senior position (eg
director, treasurer, chief executive, secretary, manager);

Where can service be made?

- Rule 6.9 - ‘the principal office’ or any place it carries on
activities with a real connection with the claim.

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Service within the jurisdiction
1) CPR, Part 6 - companies incorporated abroad:

Who can be served?

- Those with an ability to bind the company contractually

Where can service be made?

-Rule 6.9 - a foreign company can be served at ‘any place
within the jurisdiction where the corporation carries on its
activities or any place of business of the company within
the jurisdiction.

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Service within the jurisdiction
2) The Companies Act 2006 - companies incorporated in
England and Wales:

Who can be served?

-On any director or secretary of the company.

Where can service be made?

-A company incorporated in England can be served at its
registered address ( s1139, CA 2006).

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Service within the jurisdiction
2) The Companies Act 2006 – foreign companies:

Who can be served?

-Those who can contractually bind the company;

Where can service be made?

-At registered office (a foreign company that has a place of
business in England is required to register its address and the
names of officers of that company in line with s 1046 – service
can therefore be made at these addresses (s 1139, CA 2006);
-If the foreign company has not registered its address, the
claimant can look to the CPR.

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Service within the jurisdiction
Jurisdiction on the basis of consensus

1) The defendant’s submission to the jurisdiction (tacit

agreement):
- The Messiniaki Tolmi [1984] 1 Lloyd’s LR 266 per Lord Goff
at 270; by taking this step, the defendant has recognised the
court’s jurisdiction;

2) Agreement as to where service is to be made:

- Eg Example: “the Borrower hereby appoints Exco, of 20
Mammon Street, London EC2 as agent to accept service of any
documents relating to a claim arising from or in connection
with this contract”.
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Service within the jurisdiction
If the defendant is served, what action does he need to take?

The defendant must acknowledge service, to avoid the risk that

a judgment is given in default (ie without the defendant’s
appearance before the court) in line with CPR, Part 10.
 
The defendant can challenge the service made, accept the
jurisdiction or the English court or contest the jurisdiction of
the court in line with the rules in CPR, Part 11.

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What if the defendant is not on the
territory of England and Wales?
Service needs to be made outside of the jurisdiction.

Does the Brussels Ibis Regulation apply?

If not  the rules on service outside of the jurisdiction can be

found in CPR, Part 6 (Rules 6.35 et seq) and CPR, PD 6B.

Fundamental: the permission of the English court to effect

service outside of the jurisdiction.

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Service outside of the jurisdiction
Three steps to serving a claim form on parties outside of
the jurisdiction:

1.The claimant must apply for permission from the

court;

2.The actual process of serving the defendant in the

foreign country;

3.The defendant’s application (if any) to set aside service.

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Service outside of the jurisdiction
1) Claimant’s application for court’s permission to
make service (given only on claimant’s arguments;
burden lies with him).

Requirements set out in CPR, Rule 6.37(1):

1)A gateway/head of jurisdiction;

2)A serious issue to be tried; (reasonable prospect of
success)
3)English courts = proper place for trial.

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Service outside of the jurisdiction
 An available “gateway” (“head” of jurisdiction) in
CPR, PD, 6B, para 3.1 must be established (standard
of a “good arguable case”);

 There is a serious issue to be tried on the merits of

the claim and a claim with a reasonable prospect of
success:

 That the English courts can be deemed to be the

proper place for trial, again to the standard of a good
arguable case (CPR, Rule 6.37).
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Service outside of the jurisdiction
Standard of proof: a “good arguable case”: Goldman Sachs v Novo
Banco [2018] UKSC 34 per Lord Sumption at para 9, the claimant
must:

-Supply a plausible evidential basis for the application of a

relevant jurisdictional gateway;
-If there is an issue of fact about it or some other reason for
doubting whether it applies, the court must take a view on the
material available if it can reliably do so
-The nature of the issue and the limitations of the material
available at the interlocutory stage may be such that no reliable
assessment can be made, in which case there is a good arguable case
for the application of the gateway, if there is a plausible (albeit
contested) evidential basis for it.
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Service outside of the jurisdiction
What gateways in CPR, PD 6B, para 3?

Defendant domiciled within the jurisdiction

Claim for an injunction ordering the defendant to do or refrain
from doing something within the jurisdiction
Claims against necessary and proper parties and third parties
Claims for interim remedies
Claims over contracts
Claims in tort
Claims for enforcement
Claims over property
Claims relating to trusts and restitution

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Service outside of the jurisdiction
Key considerations:

-Dispute concerning the gateway  should be interpreted

in the defendant’s favour;
- Why?
- Defendant is being “dragged” into the jurisdiction
(The Hagen [1908] P 189 at 201)

-Only the gateway relevant to the claim can be used (Bas

Capital Funding v Medfinco [2003] EWHC 1798 (Ch)

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 EXAMPLES –
JURISDICTIONAL
GATEWAYS

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Service outside of the: Example 1
Defendant domiciled within the jurisdiction (CPD, PD 6B,
para 3.1(1))

-Where the defendant is domiciled in England but not

present on the territory to be served;

-Domicile is to be determined on the basis of the Civil

Jurisdiction and Judgments Order 2001(SI 2001/3929,
Schedule 1, para 9 in relation to individuals and para 10 in
relation to corporations

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Service outside of the: Example 2
Claims against necessary and proper parties and third
parties (CPR, PD 6B, para 3.1(3))

-Allows a claimant who has brought a claim against a

defendant (who has or will be served) to serve a claim
against another party who is a “necessary and property
party” to that claim; (collateral jurisdiction)
-Claimant sues Defendant 1 and Defendant 2 in England,
and Defendant 2 is overseas;
-Open to abuse…?

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Service outside of the: Example 2
AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011]
UKPC 7

1)there must be a serious issue to be tried;

2) the defendant to be joined must be a ‘necessary

or proper party’ to that action;

3)3) a connection between the anchor defendant and

the defendant to be joined is necessary to make the
latter a ‘proper party’.

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Service outside of the: Example 3
Claims over contracts (CPR, PD 6B, para 3.1(6)-(8))
-A contract made within jurisdiction;
-A contract ‘made by or through an agent trading or residing in
the jurisdiction’
-A contract governed by English law;
-A claim made in relation to a contract ‘containing a term to
the effect that the court shall have jurisdiction to determine any
claim in respect of the contract’
-A ‘breach of contract committed within the jurisdiction’
-A claim made for a declaration ‘that no contract exists where,
if the contract was found to exist, it would comply’ with the
above.

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Service outside of the: Example 3
Global 5000 Ltd v Wadhawan [2012] EWCA Civ 13

-The claim must relate directly to the contract;

-One contract = straightforward;
-Multiple contracts – eg guarantee and reinsurance – may be
problematic;
-The Court of Appeal held that the claimant must rely on the
contract in relation to which the claim was raised as the
gateway;
-Need a necessary link between the defendant to be brought to
face trial in England and this jurisdiction to good, arguable
case;
-Link may be established with related contracts but not in this
case – no connection. 36
Service outside of the: Example 4
Claims made in tort (CPR, PD 6B, para 3.1(9)

-A case can be brought in England where the claim is one in

tort, and the damage incurred was sustained in England, or the
damage resulted from an act (or omission) occurring in
England;
-The claimant must first establish that there is a tort, and that
the defendant is liable in damages for the tortious act or
omission, and that the claimant has suffered damage or loss;
-The establishment of a tort may be difficult; torts are
conceived in different ways in different legal systems; thus, the
(potentially foreign) applicable law may be relevant.

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The role of the claimant
First stage: applying for permission from the English court
Second stage: serving the defendant abroad
  - Follow the foreign procedure of the legal system in
which he wants to effect service on the defendant;
When service is to be made within the EU, the claimant
must use the Service Regulation (Regulation (EC) No
1393/2007);
-National procedures;
-Hague Convention 1965 on the Service Abroad

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The role of the claimant
Claimant must satisfy the court that (AK Investments v Kyrgyz Mobil
Tel Ltd [2011] UKPC 7, para 71):
 
“that there is a serious issue to be tried on the merits, i.e. a
substantial question of fact or law, or both”;
“the claimant must satisfy the court that there is a good arguable
case that the claim falls within one or more classes of case in which
permission to serve out may be given”; and
“the claimant must satisfy the court that in all the circumstances
England is clearly or distinctly the appropriate forum for the trial of
the dispute, and that in all the circumstances the court ought to
exercise its discretion to permit service of the proceedings out of the
jurisdiction”.

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The role of the defendant
Third stage: the defendant’s reaction to service

-The defendant must acknowledge service, to avoid the

risk that a judgment is given in default (ie without the
defendant’s appearance before the court) in line with CPR,
Part 10;
-The defendant can challenge the service made, accept the
jurisdiction or the English court or contest the jurisdiction
of the court in line with the rules in CPR, Part 11.

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Discretionary exercise by the court
 “There is, so to speak, a jungle of separate, broadly based,
jurisdictions all over the world. In England, for example,
jurisdiction is founded on the presence of the defendant within the
jurisdiction, and in certain specified (but widely drawn)
circumstances on a power to serve the defendant with process
outside the jurisdiction. But the potential excesses of common-law
jurisdictions are generally curtailed by the adoption of the
principle of forum non conveniens – a self-denying ordinance
under which the court will stay (or dismiss) proceedings in favour
of another clearly more appropriate forum.”

 Airbus Industrie GIE v Patel [1999] 1 AC 119 per Lord Goff of

Chieveley at 132.

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