In this chapter, we consider the basic common-law rules of jurisdiction as they developed in England over the centuries. Originally, these rules constituted a complete statement of the law of jurisdiction applied in actions in personam in England. As we have seen, however, they have now been replaced by European Union law where the defendant is domiciled in the United Kingdom or in another European State that is a member of the European Union or a Party to the Lugano Convention.1 As we saw in Chapter 3, § 7, and Chapter 4, § 5, above, they also apply in certain situations even if the defendant is not domiciled in any EU or Lugano State. As a result, the traditional rules of English law now apply only with regard to defendants domiciled in other countries, such as the United States, Canada, Australia, Japan, China, Russia, India, Brazil, etc.2 This is subject to the exceptions mentioned in the previous footnote. However, since these latter countries make up by far the greater part of the world, the traditional rules are still of considerable importance; in many ways, they are more important than the EU rules we considered in the last two chapters. Moreover, they still constitute the foundation of the law in common-law countries like Australia, Canada and the United States.
The original attitude of the common law might strike some people as strange: jurisdiction was regarded as entirely a matter of procedure. An action in the common law was (and is) begun with the service (delivery) on the defendant of a claim form – originally, a writ of summons (writ)3 The term ‘claim form’ replaced ‘writ’ in England as a result of the adoption of the CPR in 1999. ‘Writ’ is still the correct term in the Commonwealth and the United States. – a document issued in the king’s (or queen’s) name, ordering (summoning) the defendant to attend court at a specified time and place. If the claim form was not served, the case could not proceed. So jurisdiction was regarded as being dependent – and wholly dependent – on the service of the claim form. If the claim form was properly served, the court had jurisdiction.4 There were (and are) exceptions. For example, the court will not have jurisdiction to decide questions of rights in rem in foreign immovables: British South Africa Co. v. Companhia de Moçambique [1893] AC 602 (HL). If it was not, it did not.
Though the issuing of a claim form is an official act performed by a court official, the service of a claim form was traditionally carried out by the party himself or by someone on his behalf.5 Today, a claim form is often served by the court: CPR 6.4. Traditionally, the claim form had to be given (or shown)6 The original might be shown to him, and a copy given to him. personally to the defendant. If he could not be found, it could not be served. Subsequently, provision was made for service by an alternative method: with prior permission of the court, the claim form could be served by other means.7 See now CPR 6.15. Today, in England, it is also possible for a claim form to be served without prior permission by various other methods specified in the Civil Procedure Rules – for example, by post or fax.8 CPR 6.3(1). However, these are all later developments: originally, personal service was required.
Since the claim form was issued in the name of the king (or queen), it could be served only within his dominions (the territory he ruled). However, since the claim form was actually issued by a court, service had to take place within that part of the king’s dominions over which the court had jurisdiction. Thus, a claim form issued by an English court could be served only in England, not in Scotland or a British colony.9 Except for proceedings involving small sums of money, England is not divided into different judicial districts: there is a single court of unlimited civil jurisdiction for the whole of England and Wales – the High Court. Under the Civil Procedure Rules, ‘jurisdiction’ is defined as meaning England and Wales: CPR 2.3.
Thus, the traditional rule was that an English court had jurisdiction (in the international sense) if, but only if, the claim form was served on the defendant in England. This meant that the jurisdiction of the English courts depended on the presence – even if temporary – of the defendant within the territory of the court, coupled with the service of the claim form on him.
This complies with the principle of a link between the defendant and the territory of the court, but it does so only to a limited extent. Many people would consider temporary presence too weak a link to found general jurisdiction in civil matters. However, two points should be borne in mind. The first is that, weak though it is, presence is still a link between the defendant and the territory of the court. Entering a country is a voluntary act,10 If the defendant was enticed or tricked into entering the country – still less, if he were kidnapped by the claimant and brought within it by force – service of a claim form on him would not give the court jurisdiction: see Stein v. Valkenhuysen (1858) EB & E 65; Watkins v. North American Lands Co. (1904) 20 TLR 534 (HL). an act that the defendant might reasonably be expected to regard as subjecting him, in some sense at least, to the jurisdiction of that country. It is, therefore, less objectionable than rules such as that found in Article 14 of the French Civil Code11 See Chapter 3, § 5. that give a court jurisdiction on the basis of a link between the claimant and the territory of the forum.
The second point is that the excessive nature of this rule is mitigated by the doctrine of forum non conveniens, a doctrine that allows the court to refuse to exercise jurisdiction if it considers that another court is in a better position to do justice in the case. This will be considered in Chapter 9. Here, it is enough to say that, in recent times,12 The doctrine of forum non conveniens was developed during the twentieth century. a common-law court has always had to consider two questions when an action is brought before it:
Does it have jurisdiction?
If it does, should it exercise that jurisdiction?
These two questions are different. The first is based on fairly clear-cut rules; the second is based on an assessment of all relevant considerations.
However, though the doctrine of forum non conveniens mitigates the excessive nature of the rule, it does not entirely cure it. A foreign resident might feel that the uncertainty inherent in forum non conveniens means that he does not get full protection. For this reason, it might be better if (in the absence of special circumstances) the common-law rule were restricted to proceedings arising out of the defendant’s activities during his visit to England.
Our first case illustrates the basic rule that service of a claim form on the defendant in England gives the English courts jurisdiction in an action in personam, even if the defendant’s presence in England is only temporary (unless he was tricked into coming to England).
While the defendant, who was not resident in England, was staying for a few days at a hotel in London for reasons unconnected with the litigation, the claimants issued a claim form and served it on him.13 The English action was actually brought to enforce an American judgment. Under the common law, a judgment given by a foreign court which had jurisdiction under the rules of English law creates a new cause of action (claim) which may be sued upon in England. In such proceedings, the defendant cannot challenge the substance of the foreign judgment, but may raise only a limited number of defences – for example, that the proceedings were contrary to natural justice. The fact that the action in Colt Industries v. Sarlie was brought on a foreign judgment was, however, irrelevant to the jurisdictional issue. This would have been exactly the same if the proceedings had been brought on an original cause of action. In proceedings before the Master, the defendant challenged the jurisdiction of the court. When the challenge was unsuccessful, he appealed to a judge.
[Counsel for the defendant] claims that where a defendant is not a resident in this country and has not otherwise submitted to the jurisdiction, the court has no jurisdiction to adjudicate upon a claim merely because the writ is issued and served while he is temporarily staying – and I use the neutral term – in this country; what he says is, that as the defendant was merely a visitor for a few days, the court has no power to implead him to answer the claim of the plaintiffs; he further says that this is a point which has never been the subject of direct decision.
The first authority to which I was referred was Dicey’s Conflict of Laws, 7th ed. (1958) p. 175, r. 25, which reads as follows:
‘When the defendant in an action in personam is, at the time for the service of the writ, in England, the court has jurisdiction in respect of any cause of action, in whatever country such cause of action arises.’
…
That rule, so far as my own experience goes, has always been acted upon by practitioners, but nevertheless, in view of the argument put forward by [counsel for the defendant], it is my duty to examine its foundation.
Lyell J then considered Carrick v. Hancock,14 (1895) 12 TLR 59 (Div. Ct). a case in which it had to be decided whether a Swedish court had jurisdiction over an English defendant under the principles of English law, a question which arose in the context of proceedings to enforce the judgment of the Swedish court in England. The defendant in that case was resident in England and the claim form had been served on him in Sweden during a short visit there. Counsel for the plaintiff in Carrick v. Hancock referred to Calvin’s Case,15 (1608) 7 Co Rep 1a. and founded his argument on the statement ‘when an alien in amity cometh into England, because so long as he is within England he is within the King’s protection; therefore so long as he is here he oweth unto the King a local obedience or ligeance, for the one (as it hath been said), draweth the other’. After explaining this, Lyell J continued:
The argument, therefore, was that as he had protection and owed allegiance, he was impleadable in any matter before the courts. The judgment of Lord Russell of Killowen CJ is only shortly reported, and after reviewing the facts, he went on to observe1 12 TLR 59 at p. 60. ‘that the jurisdiction of a court was based upon the principle of territorial dominion, and that all persons within any territorial dominion owe their allegiance to its sovereign power and obedience to all its laws and to the lawful jurisdiction of its courts.’ In his opinion, that duty of allegiance was correlative to the protection given by a State to any person within its territory, this relationship and its inherent rights depended upon the fact of the person being within its territory, and it seemed to him that the question of the time the person was actually in the territory was wholly immaterial.
1 12 TLR 59 at p. 60.
Lyell J then turned to Watkins v. North American Land and Timber Co. Ltd16 (1904) 20 TLR 534 (HL). and continued:
In my judgment it is implicit in that decision that in the absence of fraud inducing the defendant to come into the country so that he … is tricked to come within the jurisdiction for the sole purpose of serving him with a writ, the House of Lords was implicitly holding that jurisdiction was well founded by serving a writ upon a foreigner who was here merely casually, and that accords entirely with the rule as stated in Dicey now for over forty years.
In this case there is no question but that the defendant came here, not on any invitation of the plaintiffs, but entirely for his own purposes, and in those circumstances the refusal of the master to set aside the writ and service was entirely right and proper. The defendant’s appeal is, therefore, dismissed.
The defendant then sought leave to appeal to the Court of Appeal. He put forward two grounds, one of which was that the mere transitory presence of the defendant in the United Kingdom did not confer jurisdiction on the English courts since neither of the parties was domiciled, resident or carried on business in the United Kingdom or was a British subject or had any business connection with the United Kingdom. The Court of Appeal (Sellers, Davies and Salmon LJJ) heard the defendant’s applications on 17 January 1964.
This court is unanimously of the opinion that we should refuse the defendant leave to appeal against the decision of Lyell J. We are content to leave the judgment of Lyell J as it stands on both the points which have been argued. We extend the time for appealing, but we do not give the defendant leave to appeal.
Result: the jurisdiction of the court was affirmed.
Our next case is not so much concerned with the question whether service of a claim form on a non-resident defendant during a visit to England confers jurisdiction on the court, but rather with the question whether it is right for the court to exercise its jurisdiction in such circumstances (under the principle now known as forum non conveniens). At the time of the case, the principle of forum non conveniens had not been fully developed and the question depended simply on whether or not the proceedings were vexatious or oppressive.18 Today, proceedings will be stayed under the doctrine of forum non conveniens (discussed in Chapter 9, below) in a wider range of situations. However, the mere fact that the claim form was served on the defendant during a temporary visit to England is not in itself a ground for staying the proceedings.
If they were, the court would stay (suspend) the proceedings. The most authoritative statement of this principle was in St Pierre v. South American Stores,19 [1936] 1 KB 382 at p. 398 (HL). where Scott LJ said:
In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant.
It was the application of this rule that was in issue in our next case.
The claimant, the Maharanee of Baroda, was an Indian princess, resident in France. The defendant, Mr Wildenstein, was an art dealer, also resident in France. The case concerned a painting bought by the Maharanee from Wildenstein in France. Wildenstein certified that the picture was by the famous French artist, Boucher. However, the English firm of art dealers, Christie’s, said it was not. So, the Maharanee sued Wildenstein to obtain rescission of the contract: she wanted her money back. She decided to bring the proceedings in an English court, rather than a court in France. The claim form was served on the defendant while he was at the horse races during a temporary visit to England. The defendant challenged the jurisdiction of the court, and the court of first instance set service aside. The Maharanee appealed to the Court of Appeal.
In this case the writ has been properly served on the defendant in this country. This makes the case very different from those in which the defendant is in a foreign country and the plaintiff has to seek leave to serve him out of the jurisdiction. It is also different from those cases in which the plaintiff has already started an action in another country, and the question is whether he should be allowed to start another action in this country on the same subject-matter. In this case the plaintiff has validly invoked the jurisdiction of our courts in this, the one and only action she has brought.
[Lord Denning then referred to the statement in St Pierre v. South American Stores set out above and certain other cases, and continued:]
A similar case was put by Sir Gorell Barnes P in Logan v. Bank of Scotland (No 2):1 Editor’s note: [1906] 1 KB 141 at p. 152.
‘If, for instance, as was put in argument, a dispute of a complicated character had arisen between two foreigners in a foreign country, and one of them were made defendant in an action in this country by serving him with a writ while he happened to be here for a few days’ visit, I apprehend that, although there would be jurisdiction in the court to entertain the suit, it would have little hesitation in treating the action as vexatious and staying it.’
The judge seems to have taken that instance given by Sir Gorell Barnes P and founded on it a presumption which he stated in these words: ‘But a presumption arises that the proceedings are oppressive if the defendant is served when he appears to be here on a visit …’ I cannot agree with that statement. There is no such presumption. If a defendant is properly served with a writ while he is in this country, albeit on a short visit, the plaintiff is prima facie entitled to continue the proceedings to the end. He has validly invoked the jurisdiction of the Queen’s courts; and he is entitled to require those courts to proceed to adjudicate upon his claim. The courts should not strike it out unless it comes within one of the acknowledged grounds, such as that it is vexatious or oppressive, or otherwise an abuse of the process of the court … It does not become within those grounds simply because the writ is served on the defendant while he is on a visit to this country …
[Counsel for the defendant] likened this case to a road accident in Rome, when two Italian citizens were in collision. Suppose that one of them was served with an English writ while on a short holiday in England. I would agree that such an action would be stayed. The issue would be solely Italian. But, here the main issue is whether this painting was a genuine Boucher or not. That issue is one of fact which is crucial to the case in French law as well as in English law. It is not solely a French issue. The art world is so international in character today that this issue has itself something of an international character. The parties on either side are citizens of the world. The Maharanee has associations, not only with France, but also with India, England and Ireland. Mr Wildenstein himself has, of course, close associations with France, but also with America, England and Ireland. He was for years the principal director of the English company of Daniel Wildenstein Ltd, and was so at the beginning of this action. He has now ceased to be a director, but he is still a shareholder. If anybody could be said to have an international reputation, it is he …
[T]he burden is on Mr Wildenstein to show that it would be an injustice to him to have the case tried here. I do not think he has discharged that burden. The judge was, I think, in error, in raising the presumption that he did. We can review his discretion. On so doing, I think the case should continue in England. I would allow the appeal, accordingly.
1 Editor’s note: [1906] 1 KB 141 at p. 152.
As we have seen,20 Chapter 3, § 6.4, above. the jurisdiction of an English court over companies domiciled in England depends on EU law. EU law also governs the jurisdiction of an English court over companies domiciled in other EU or Lugano States. So, the traditional English rules now apply in England only with regard to companies not domiciled in any of these States. In this chapter, we are concerned only with such defendants. Again, they constitute a large proportion of the foreign businesses operating in the United Kingdom. Here too, jurisdiction depends on service of the claim form.
How do you serve a claim form on a company? When is a company present in the jurisdiction so that service may take place on it? The traditional answer has always been that a company was present in the jurisdiction for this purpose if it was incorporated in England21 If the company is incorporated in England, it must have a registered office within the country. The claim form may be served on it there: the Companies Act 2006, section 1139(1). This provision re-enacts earlier provisions to the same effect. or if it had a place of business there. However, the traditional English rule no longer applies when the company is incorporated in England (and has its registered office there), when its central administration is in England or when it has its principal place of business there: in all these cases, it will be domiciled in England.22 See Chapter 3, § 6.4, above. In these cases, the English courts will have jurisdiction by virtue of Union law, not English law. So, the traditional rule will apply only when the company is incorporated in a foreign country (not being an EU or Lugano State) and has a place of business in England that is not its central administration or its principal place or business. Service of the claim form on the company at that place will then give the court jurisdiction over it: this is laid down in CPR 6.3(2).23 See also the table in CPR 6.9(2). This is subject to the exceptions already mentioned. See further Saab v. Saudi American Bank [1999] 1 WLR 1861 (CA). It is supported by the provisions in the Companies Act 2006 on the service of documents on an overseas company (set out in Panel 6.1) and regulations made under them.
To come within this rule, the place of business must be at a fixed location. A representative who visits England and travels about from place to place doing business would not be enough.24 See Littauer Glove Corporation v. Millington Ltd (1928) 44 TLR 746, a case in which the principle was applied to a foreign judgment. Even if the president of the company came to England and the claim form was served on him there, that would not give the court jurisdiction over the company. This was made clear in The Theodohos,25 [1977] 2 Lloyd’s Rep 428. See now SSL International v. TTK LIG [2011] EWCA Civ 1170; [2012] 1 WLR 1842 (CA), which confirms that this is still the position under the CPR. a case brought against a Panamanian company. The company had no place of business in England and the claim form was served on the president of the company while he was in England. The court held that, if there was no place of business in England, there could be no jurisdiction over the company.
In the Companies Acts an ‘overseas company’ means a company incorporated outside the United Kingdom.
(1) The Secretary of State may make provision by regulations requiring an overseas company–
(a) to deliver to the registrar for registration a return containing specified particulars …
(2) The regulations–
(a) must … require the company to register particulars if the company opens a branch in the United Kingdom …
(3) In subsection (2)–
‘branch’ means a branch within the meaning of the Eleventh Company Law Directive (89/666/EEC) …
Regulations under section 1046 (overseas companies: duty to register particulars) must require an overseas company to register–
(a) particulars identifying every person resident in the United Kingdom authorised to accept service of documents on behalf of the company, or
(b) a statement that there is no such person.
(1) A document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company’s registered office.
(2) A document may be served on an overseas company whose particulars are registered under section 1046–
(a) by leaving it at, or sending it by post to, the registered address of any person resident in the United Kingdom who is authorised to accept service of documents on the company’s behalf, or
(b) if there is no such person, or if any such person refuses service or service cannot for any other reason be effected, by leaving it at or sending by post to any place of business of the company in the United Kingdom.
(3) For the purposes of this section a person’s ‘registered address’ means any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection.
To understand what is meant by a place of business, we must distinguish between the situation where the company has an office (or equivalent establishment) in its own name, staffed by its own employees, and the situation where it carries on business through an agent or representative. We will consider these two situations separately.
We first consider the situation where the company’s operations in England are directly controlled by it through its own officers or employees, not through an agent or representative.
Our next case throws light on what is meant by a place of business in this situation.
The defendant, a German company, hired a stand at a cycle show at the Crystal Palace in London to exhibit their products and to take orders. The stand was manned by their employees. The show lasted nine days. Apart from the stand, they had no other place of business in England. The action was brought by a British company for patent infringement, and the claim form was served on one of the persons manning the stand. The defendants claimed that this did not give the court jurisdiction. The judge at first instance refused to set aside service and the defendants appealed.
[After saying that the method of service was proper, assuming that the defendants could be served with a claim form at all, he continued:]
In order to see whether they were liable to be so served, it is necessary to consider whether, upon the facts, they can be said to have been resident in England when the service was effected. It has been held in a number of cases … that the true test in such cases is whether the foreign corporation is conducting its own business at some fixed place within the jurisdiction, that being the only way in which a corporation can reside in this country. It can only so reside through its agent,1 Editor’s note: the court is here using ‘agent’ in a general sense to mean any person acting for a company, including an employee of the company. not being a concrete entity itself; but, if it so resides by its agent, it must be considered for this purpose as itself residing within the jurisdiction. In several of the cases decided on this subject the difficulty has been to determine whether the business carried on by an agent at a certain place within the jurisdiction was the business of the company itself carried on by that agent as representing them, or was really the business of the agent. With regard to that point very nice questions of fact have in some cases arisen. But in the present case we are relieved from any such difficulty. The defendants did not resort, for the purposes of their business, to some person who was himself carrying on an independent business of his own at some place in this country; and therefore we are not called on in this case to consider the question whether a foreign corporation, making use, for their purposes, of a person carrying on a business of his own, can under the circumstances be regarded as themselves carrying on their own business within the jurisdiction …2 Editor’s note: this is the situation considered in § 3.3, below. Here the defendants hired premises for their own exclusive use, and did not resort for their purposes to some person who was carrying on an independent business, but employed their own servant to conduct the business. The only difficulty in this case arises from the fact that the time during which the defendants can be said to have carried on business in this country is limited to that of the duration of the show at the Crystal Palace, namely, nine days. It was argued by the counsel for the defendants that, in determining the question of residence or no residence, length of time is an essential element. I agree that it is an element to be considered; but it was, as I understood, admitted that, if a foreign corporation were to announce their intention of carrying on their own business, and were to carry it on, at a certain place in this country for a limited period, the mere fact that they so carried it on only for a limited period would not prevent the company from being considered as resident within the jurisdiction for that period. The period of nine days is not necessarily a negligible quantity; it may in many cases be a very substantial period. In the case of an exhibition, such as the show in the present case, which is largely resorted to by manufacturers for the purpose of exhibiting a particular class of goods, and by customers desirous of purchasing such goods, as much business in the kind of goods exhibited might probably be done in nine days as in as many months in an ordinary town. I do not think that, where a foreign company carries on business in this country so as in all other respects to fulfil the conditions necessary to constitute residence within the jurisdiction, they can be said not to have so resided, merely because that residence was confined to a period such as nine days. In the present case I think we have in other respects all the elements necessary to constitute for this purpose residence by the defendants. It appears to be suggested that the defendants cannot be said to have carried on business in this country, because they did not carry on the whole of their business here. It was said that their business was that of manufacturers of motor-cars, and that manufacture was carried on abroad, and not at the Crystal Palace. It seems to me that it is only necessary to state that point in plain terms in order to confute it. It is clearly not necessary that a company should carry on the whole of its business in this country. A substantial part of the defendants’ business was the selling of their manufactures, and that was during the show carried on here. Customers had during that period an opportunity of inspecting the defendants’ wares, and prices were quoted, and orders accepted for them by the defendants. Nothing more could have been done with regard to the sale of the defendants’ wares at their place of business abroad. For these reasons I think the appeal must be dismissed.
Romer and Mathew LJJ agreed.
Appeal dismissed.
1 Editor’s note: the court is here using ‘agent’ in a general sense to mean any person acting for a company, including an employee of the company.
2 Editor’s note: this is the situation considered in § 3.3, below.
1 Do you think that nine days is long enough?
2 It is not clear whether the claim in this case arose out of the activities of the company in England. If it did not, would it still be right to take jurisdiction?
If the company has a fixed place of business at a specific location, it must carry on business there. Our next case is concerned with what constitutes carrying on business.
In this case, the defendant, a Korean bank, opened an office in London, which was rented in its name and staffed by its employees. The function of the office was to gather information and make contacts; it concluded no financial transactions. The bank had previously registered the office under the Companies Act 1948, but had subsequently cancelled this registration on the ground that no business transactions were concluded through it. The claimant was an Indian shipping company. It had had a ship built in Korea and the Bank of Korea had issued two letters of guarantee in connection with the contract. The claim (for US$13 million) was under the letters of guarantee: it had no connection with the activities of the office in England. The claim form was served on the office in England.
On the bank’s application, the judge at first instance declared that the bank had not been duly served because the office was not a place of business. The claimant appealed.
[After considering the authorities, continued:]
In my judgment the facts in this appeal are clear. The defendant bank is an import-export bank, not a high street bank. It has both premises and staff within the jurisdiction. It conducts external relations with other banks and financial institutions. It carries out preliminary work in relation to granting or obtaining loans. It seeks to give publicity to the foreign bank and encourage trade between Korea and the United Kingdom, and it consults with other banks and financial institutions on the usual operating matters. It has therefore established a place of business within Great Britain and it matters not that it does not conclude within the jurisdiction any banking transactions or have banking dealings with the general public as opposed to other banks or financial institutions … I would accordingly allow this appeal.
Browne-Wilkinson LJ and Sir George Waller agreed.
Appeal allowed.
Where the company does not open an office of its own but acts through an agent, it must be shown that the agent does the company’s business, rather than his own. Two cases may be contrasted, both decided by the Court of Appeal in the early years of the twentieth century. In the first, Saccharin Corporation v. Chemische Fabrik von Heyden,26 [1911] 2 KB 516 (CA). a German company appointed a representative in England. The representative was paid by commission, rented his office in his own name and was free to represent other companies. However, he had the power to accept orders in the name of the company without referring them back to it, and even had a stock of the company’s goods under his control, which he could deliver to customers. The court held that his office was a place of business of the company so that jurisdiction over it could be obtained by serving a claim form on it there. In Okura v. Forsbacka Jernverks,27 [1914] 1 KB 715 (CA). on the other hand, a Swedish company with a similar arrangement was held not to be doing business within the jurisdiction. The difference was that, in this case, the representative had no power to accept orders himself without first obtaining the consent of the company.
More recently, it has been established that this distinction, though important, is not necessarily decisive.
The issue in this case was whether an American judgment should be recognized in England. This depended on whether the American court that gave the judgment had jurisdiction under English law.28 As we shall see in Chapter 15, English courts sometimes apply more restrictive rules for the purpose of recognizing foreign judgments than for deciding whether they themselves have jurisdiction; however, this was not the case here. So the decision on the jurisdiction of the American courts also constitutes an authority on the jurisdiction of the English courts. It is not necessary to consider the facts. The following extract lays down the general principles that the court considered applicable in this situation.
… In relation to trading corporations, we derive the three following propositions from consideration of the many authorities cited to us relating to the ‘presence’ of an overseas corporation.
(1) The English courts will be likely to treat a trading corporation incorporated under the law of one country (‘an overseas corporation’) as present within the jurisdiction of the courts of another country only if either (i) it has established and maintained at its own expense (whether as owner or lessee) a fixed place of business of its own in the other country and for more than a minimal period of time has carried on its own business at or from such premises by its servants or agents (a ‘branch office’ case),1 Editor’s note: this is the ‘own office’ situation discussed in § 3.2, above. or (ii) a representative of the overseas corporation has for more than a minimal period of time been carrying on the overseas corporation’s business in the other country at or from some fixed place of business.2 Editor’s note: this is the ‘acting through an agent’ situation.
(2) In either of these two cases presence can only be established if it can fairly be said that the overseas corporation’s business (whether or not together with the representative’s own business) has been transacted at or from the fixed place of business. In the first case, this condition is likely to present few problems. In the second, the question whether the representative has been carrying on the overseas corporation’s business or has been doing no more than carry on his own business will necessitate an investigation of the functions which he has been performing and all aspects of the relationship between him and the overseas corporation.
(3) In particular, but without prejudice to the generality of the foregoing, the following questions are likely to be relevant on such investigation: (a) whether or not the fixed place of business from which the representative operates was originally acquired for the purpose of enabling him to act on behalf of the overseas corporation; (b) whether the overseas corporation has directly reimbursed him for (i) the cost of his accommodation at the fixed place of business; (ii) the cost of his staff; (c) what other contributions, if any, the overseas corporation makes to the financing of the business carried on by the representative; (d) whether the representative is remunerated by reference to transactions, e.g. by commission, or by fixed regular payments or in some other way; (e) what degree of control the overseas corporation exercises over the running of the business conducted by the representative; (f) whether the representative reserves (i) part of his accommodation, (ii) part of his staff for conducting business related to the overseas corporation; (g) whether the representative displays the overseas corporation’s name at his premises or on his stationery, and, if so, whether he does so in such a way as to indicate that he is a representative of the overseas corporation; (h) what business, if any, the representative transacts as principal exclusively on his own behalf; (i) whether the representative makes contracts with customers or other third parties in the name of the overseas corporation, or otherwise in such manner as to bind it; (j) if so, whether the representative requires specific authority in advance before binding the overseas corporation to contractual obligations.
This list of questions is not exhaustive, and the answer to none of them is necessarily conclusive. If the judge [against whose decision this case was an appeal] was intending to say that in any case, other than a branch office case, the presence of the overseas company can never be established unless the representative has authority to contract on behalf of and bind the principal, we would regard this proposition as too widely stated. We accept [counsel for the plaintiffs’] submission to this effect. Every case of this character is likely to involve ‘a nice examination of all the facts, and inferences must be drawn from a number of facts adjusted together and contrasted:’ La Bourgogne [1899] P 1, 18, per Collins LJ. Nevertheless, we agree with the general principle stated thus by Pearson J in Jabbour v. Custodian of Israeli Absentee Property [1954] 1 WLR 139, 146:
‘A corporation resides in a country if it carries on business there at a fixed place of business, and, in the case of an agency, the principal test to be applied in determining whether the corporation is carrying on business at the agency is to ascertain whether the agent has authority to enter into contracts on behalf of the corporation without submitting them to the corporation for approval …’
On the authorities, the presence or absence of such authority is clearly regarded as being of great importance one way or the other. A fortiori, the fact that a representative, whether with or without prior approval, never makes contracts in the name of the overseas corporation or otherwise in such manner as to bind it must be a powerful factor pointing against the presence of the overseas corporation.
1 Editor’s note: this is the ‘own office’ situation discussed in § 3.2, above.
2 Editor’s note: this is the ‘acting through an agent’ situation.
This case shows that establishing jurisdiction over a foreign company is much more difficult when it operates through an agent than when it opens its own office. In South India Shipping v. Bank of Korea (an ‘own office’ case), for example, the local office could not conclude contracts on behalf of the bank; nevertheless, it was still considered to be a place of business. Service on the office gave the court jurisdiction. It is unlikely that the court would have reached the same conclusion if the office had been that of an independent agent.
A subsidiary is a separate company in which the ‘parent’ company owns a controlling shareholding. In law, it is a separate legal person from the parent. It is, therefore, different from a branch or other place of business, which is not a separate legal person. If the subsidiary is incorporated in England, it will be domiciled there and the English courts will have (general) jurisdiction over it under Union law. If the claim is against the subsidiary, there is, therefore, no problem.
What if the claim is against the parent? Since the subsidiary is a separate legal person, it is not (normally) liable for the obligations of the parent. Moreover, establishing a subsidiary in England is not the same thing as establishing a branch there. The latter operates in the name of the head office and holds itself out as an extension of the latter. This is not, in general, true of a subsidiary. Thus, if a foreign company incorporates a subsidiary in England, that does not automatically give jurisdiction to the English courts over the parent in the way that the opening of a branch does. However, it is possible for the subsidiary to act as agent for the parent and to transact business in the name of the parent. If it does this, the rules on agents explained above in § 3.3 will be applicable.29 Cf. The Theodohos [1977] 2 Lloyd’s Rep 428.
It will be seen from what has been said that the traditional rules for jurisdiction over a foreign company in England are similar to those under Article 7(5) of Brussels 2012. The decisions on what constitutes a ‘branch, agency or other establishment’ under the European instruments would almost all be good law in England. The extract from Adams v. Cape Industries set out above suggests that Blanckaert and Willems v. Trost,30 Case 139/80, [1981] ECR 819. (discussed in Chapter 4) would have been decided the same way under English law.
There is, however, one important difference. Under EU law, the presence of a place of business gives the court jurisdiction only with regard to claims arising out of the activities of that place of business. In English law, on the other hand, it gives rise to general jurisdiction. This is made clear by cases such as South India Shipping v. Bank of Korea, where there was no connection between the claim (which arose under letters of guarantee issued in Korea in favour of an Indian company) and the activities of the bank in England.
English lawyers argue that the doctrine of forum non conveniens ensures that this does not produce hardship for the defendant. Continental lawyers, however, feel that the flexible and uncertain nature of forum non conveniens (discussed below in Chapter 9) puts potential defendants in a difficult position, since, without embarking on an expensive lawsuit, they cannot be sure whether or not they will be subject to the jurisdiction of the English courts.
Under the original common law, service of the claim form on the defendant within England was the only means of establishing jurisdiction. In the nineteenth century, however, the legislature intervened to make it possible to serve a claim form outside England and thus to obtain jurisdiction over persons outside the country. This power, first granted by the Common Law Procedure Act 1852, was for many years exercised under Order 11 of the Rules of the Supreme Court (RSC), the forerunner of the CPR. Under this, a claim form could be served in a wide range of situations in which a connection existed either between the defendant and England or between the claim and England. The Rules of the Supreme Court have now been replaced by the CPR, and similar provisions are contained in Rule 6.36 and Practice Direction 6B, paragraph 3.1. A notable feature of all these provisions is that the claimant must obtain the permission of the court before serving the claim form. This requirement does not apply under the European instruments or where the claim form is served within the jurisdiction.
An application for permission is made without notice to the defendant, and is usually heard on affidavit evidence.31 An affidavit is a written statement made under oath. The onus is on the claimant to show both that the case comes within one of the jurisdictional rules contained in the CPR and that it is appropriate for it to be heard in England (forum conveniens). It is not necessary for him to give full proof of the facts necessary to establish these matters, but he must show that a good arguable case exists. As regards the merits (substance) of his claim, he must show that there is a serious question to be tried – a substantial question of law or fact (or both) that he bona fide desires to be tried.32 Seaconsar Ltd v. Bank Markazi [1994] 1 AC 438; [1993] 3 WLR 756 (HL). All these rules are based on the supposition that service of a claim form in a foreign country is a serious matter that should not be lightly undertaken. For this reason, the court will refuse permission if the case comes within the letter, but not the spirit, of the relevant provision. It will also resolve doubtful points of interpretation of the jurisdictional rules of the CPR against the claimant.
Since the defendant is not at this point present to put his side of the matter, the claimant must make a full and fair disclosure of the facts. In other words, he must put all relevant facts before the court, even those that are against his interest. Failure to do so could be a ground for setting aside service at a later stage.
If permission is given, the claimant must then ensure that the claim form is served.33 The claim form must normally be served personally on the defendant; however, where there is a special reason, it is possible, with the permission of the court, to serve it by an alternative method. In such a case, it may even be served in England. See CPR 6.15. There are various ways in which this may be done, including the procedure under the EU Service Regulation34 See Chapter 4, § 6. and the Hague Service Convention.35 See CPR 6.40 et seq. However, the claim form must not be served in a way that is against the law of the foreign country.36 CPR 6.40(4). In this regard, there is a difference of view between the common-law countries and some civil-law countries. Common-law countries do not consider the service of a foreign claim form in their territories to be an infringement of their sovereignty. If a foreign lawyer wants to come to England and serve a claim form there, he is perfectly entitled to do so. He could, if he wants, come personally to England, take a taxi to the defendant’s home, and deliver the claim form to him. Some countries take a different view. They regard the service of a claim form as an official act that would infringe their sovereignty unless permission was first obtained. In Switzerland, the service of a foreign claim form without such permission is even a criminal offence. If an English claim form is served in such a country, the claimant must ensure that it is done in a way approved by the foreign State.
When the claim form has been served on the defendant, he can then come back to court and argue that permission should not have been given. In other words, he can reopen the issues set out above.37 CPR 11. The same rules regarding onus of proof and standards of proof will be applied. If the defendant fails to avail himself of this opportunity (or if he avails himself of it but is unsuccessful) the jurisdiction of the court cannot thereafter be challenged. Thus, if the court takes jurisdiction on the ground that a tort was committed in England and it is eventually established that there was no tort, the court will give judgment for the defendant on the merits (substance): it will not rule that it has no jurisdiction.
We will now consider the circumstances in which service outside the jurisdiction may be permitted. We will consider only the most important rules.
The provisions of CPR 6.36 and Practice Direction 6B dealing with claims in contract are set out in Panel 6.2. There are six separate grounds of jurisdiction.
This ground of jurisdiction has no equivalent in the Brussels I Regulation. It could be objected that it constitutes a rather tenuous link, especially when the parties are not negotiating face to face. In such a case, there is no objective way of determining where the contract is made. Artificial rules have to be applied and these rules are different in different countries. The English rule is that, where the parties communicate by instantaneous (or near-instantaneous) means of communication (for example, telephone, fax or e-mail), the contract is made where the offeror receives the acceptance. Where, on the other hand, it is by non-instantaneous means of communication (for example, by post), it is where the letter of acceptance is mailed.39 Entores v. Miles Far Eastern Corporation [1955] 2 QB 327 (CA). Different rules apply in other countries.40 An English court will always apply the English rules on this matter: there is no room for choice of law.
3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where –
…
(6) A claim is made in respect of a contract where the contract –
(a) was made within the jurisdiction;
(b) was made by or through an agent trading or residing within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.
(7) A claim is made in respect of a breach of contract committed within the jurisdiction.
(8) A claim is made for a declaration that no contract exists where, if the contract was found to exist, it would comply with the conditions set out in paragraph (6).
This head of jurisdiction has two limbs: contracts made ‘by’ an agent and contracts made ‘through’ an agent. In National Mortgage and Agency Company of New Zealand v. Gosselin,42 (1922) 18 TLR 832 (CA). it was held that ‘by’ an agent covers the case where the agent has the power to bind the principal, and ‘through’ an agent applies where he has to refer orders back to the head office. A claim form may be served in both cases.
This rule appears to have something in common with the rule considered in § 3.3, above (company acting through an agent). However, the two rules are actually very different. The rule considered in § 3.3 is concerned with determining when a foreign company can be regarded as doing business in England so that it is present in the jurisdiction. If it is present, a claim form may be served on it. The rule we are considering here is not concerned with establishing whether the company is present in England. It assumes that it is not, and permits service on it abroad.
The second difference is that the rule considered here is wider than that discussed in § 3.3. It also covers cases in which the ‘agent’ had no authority to conclude contracts on behalf of his principal and had to refer all orders back to the head office. None of the other factors referred to in Adams v. Cape Industries (§ 3.3, above) is relevant.
The third difference is that the rule being considered here permits jurisdiction to be assumed only if the claim is made in respect of a contract made by or through the agent. In this regard, it is similar to Article 7(5) of Brussels 2012. The rule discussed in § 3.3, above, on the other hand, gives the court general jurisdiction: the claim need not relate to the activities of the company in England.
This ground of jurisdiction has no counterpart under the Brussels I Regulation. Foreign businessmen often insert into their contracts a choice-of-law clause specifying English law, and a choice-of-court clause giving jurisdiction to the courts of England. In this situation, the English courts would take jurisdiction under the choice-of-court clause and the ground of jurisdiction considered here would be unnecessary. It only comes into play, therefore, where the contract is governed by English law – either because there is a choice-of-law clause in favour of English law or on other grounds – but there is no choice-of-court clause.
Choice-of-court agreements will be considered in detail in Chapter 8.
This rule has a great deal in common with that laid down in Article 7(1) of Brussels 2012, at least where the ‘obligation in question’ is regarded as being the obligation the breach of which gives rise to the claim.
This is a useful rule. If there would have been jurisdiction on some other ground if there had been a contract, there should be jurisdiction to obtain a declaration that no contract exists.
This same problem could arise with regard to Article 7(1) of Brussels 2012. It is probable that the CJEU would interpret it along the same lines as the English rule.
The provisions of Practice Direction 6B (read with CPR 6.36) dealing with claims in tort are set out in Panel 6.3. They are more or less identical to those contained in Article 7(2) of Brussels 2012, as the latter has been interpreted by the CJEU (see the discussion in Chapter 4, § 1.2). One question which the CJEU has not yet had to decide is whether the entire wrongful act must take place within the territory of the forum and whether the whole of the damage must occur there. This issue arose in England in our next case.
3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where –
…
(9) A claim is made in tort where
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.
This was an action by a Swiss company against two American companies in which the Swiss company claimed that the American companies had, in New York, induced a third party to break, in England, his contract with the claimant. The English court had to decide whether it had jurisdiction under Order 11, Rule 1(1)(f), of the Rules of the Supreme Court, the forerunner of Practice Direction 6B, paragraph 3.1(9). The following is a short extract from the judgment.
Until 1987 leave could be given only if the action begun by the writ was ‘founded on a tort committed within the jurisdiction’ and most of the decided cases turn on that wording. The rule was changed to give effect to the Brussels Convention … and the decision of the European Court of Justice in [Bier v. Mines de Potasse].
As the rule now stands it is plain that jurisdiction may be assumed only where (a) the claim is founded on a tort and either (b) the damage was sustained within the jurisdiction or (c) the damage resulted from an act committed within the jurisdiction. Condition (a) poses a question which we consider below: what law is to be applied in resolving whether the claim is ‘founded on a tort?’ Condition (b) raises the question: what damage is referred to? It was argued for ACLI [one of the defendants] that since the draftsman had used the definite article and not simply referred to ‘damage’, it is necessary that all the damage should have been sustained within the jurisdiction. No authority was cited to support the suggestion that this is the correct construction of the Convention to which the rule gives effect1 Editor’s note: this was the Brussels Convention. and it could lead to an absurd result if there were no one place in which all the plaintiff’s damage had been suffered. The judge rejected this argument and so do we. It is enough if some significant damage has been sustained in England. Condition (c) prompts the inquiry: what if damage has resulted from acts committed partly within and partly without the jurisdiction? This will often be the case where a series of acts, regarded by English law as tortious, are committed in an international context. It would not, we think, make sense to require all the acts to have been committed within the jurisdiction, because again there might be no single jurisdiction where that would be so. But it would certainly contravene the spirit, and also we think the letter, of the rule if jurisdiction were assumed on the strength of some relatively minor or insignificant act having been committed here, perhaps fortuitously. In our view condition (c) requires the court to look at the tort alleged in a common sense way and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction (whether or not other substantial and efficacious acts have been committed elsewhere): if the answer is yes, leave may (but of course need not) be given. But the defendants are, we think, right to insist that the acts to be considered must be those of the putative defendant, because the question at issue is whether the links between him and the English forum are such as to justify his being brought here to answer the plaintiffs’ claim.
1 Editor’s note: this was the Brussels Convention.
It is probable that the CJEU would interpret Article 7(2) of Brussels 2012 in the same way.
Our next case concerns a different problem.
The question in this case was whether the English courts have jurisdiction in non-EU cases to hear claims arising out of a motor accident in a foreign country when the claimant lives in England and returns to England after the accident and undergoes medical treatment there. The defendant was a British Columbia company and the claim form had been served on it in British Columbia under Practice Direction 6B of the Civil Procedure Rules. The defendants claimed that the English courts had no jurisdiction and applied for service of the claim form to be set aside. By the time the case reached the Supreme Court, it became clear that the claimant had sued the wrong person: the defendant neither owned nor managed the hotel which had arranged the trip that resulted in the accident. So service was set aside on that ground. The Supreme court could then have decided not to consider the jurisdictional issue. However, they did so, but noted that everything they said on that matter was obiter.
Two jurisdictional grounds (gateways) were put forward by the claimant. The first was that there was a contract concluded in England to arrange the trip (CPR 6BPD, para. 3.1(6)(a)) and the other was that there was a tort and that damage had occurred within the jurisdiction (CPR 6BPD, para. 3.1(9)(a)). We deal only with the latter issue.
Although all five judges were agreed that the appeal should be allowed (and service set aside) on the ground that the claimant was suing the wrong person, they divided 3:2 on the jurisdictional issue. Three judges, led by Lady Hale, held that the English courts did have jurisdiction (or would have had it if the claimant had sued the right person) and two (led by Lord Sumption) said that they would not have had jurisdiction even if the right person had been sued. In the law report, Lord Sumption’s judgment is given first. He deals with the non-jurisdictional issues (on which all were agreed) as well as the jurisdictional issue. Lady Hale’s judgment is limited to the jurisdictional issue. The basic facts are set out in the judgment of Lord Sumption.
1. The claimant, Lady Brownlie, is the widow of the distinguished international lawyer Sir Ian Brownlie QC. In January 2010, she and her husband were on holiday in Egypt, staying at the Four Seasons Hotel Cairo at Nile Plaza. Lady Brownlie’s evidence is that on a previous visit to the hotel, she had picked up a leaflet published by the hotel advertising safari tours which it provided. Before leaving England on the subsequent trip, she telephoned the hotel and booked with the concierge an excursion to Fayoum in a hired chauffeur-driven car. The excursion took place on 3 January, and ended in tragedy. The car left the road and crashed. The passengers, in addition to Sir Ian and Lady Brownlie, were his daughter Rebecca, and Rebecca’s two children. Sir Ian and Rebecca were killed. Lady Brownlie and the two children were seriously injured.
2. Lady Brownlie subsequently began proceedings for (i) damages for personal injury in her own right, (ii) damages under the Law Reform (Miscellaneous Provisions) act 1934 in her capacity as Sir Ian’s executrix, and (iii) damages for bereavement and loss of dependency under the Fatal Accidents Act 1976 in her capacity as her late husband’s widow …
3. Before permission can be given for the service of originating process out of the jurisdiction, it is necessary for the claimant to establish (i) that the case falls within at least one of the jurisdictional gateways in CPR 6BPD, para 3.1, (ii) that she has a reasonable prospect of success, and (iii) that England and Wales is the proper place in which to bring the claim. The third of these conditions reflects the principle of forum conveniens, and there is no issue about it in this case. It is accepted that England is a proper place in which to bring the present claim if the first two conditions are satisfied … So far as it was founded on tort, it was based on CPR 6BPD, para 3.1(9)(a) (‘damage was sustained … within the jurisdiction’) … [Holdings] say that gateway (9)(a) does not apply because the damage which is the basis of the claim in tort was not sustained in England … [Holdings also said that there was no reasonable prospect of success.]
4. Some of the jurisdictional gateways in CPR 6BPD merely require that the claim should be of a particular character. For example it is a claim for an injunction regulating conduct within the jurisdiction. Others, including gateways 6(a) and 9(a) on which Lady Brownlie relies, depend on the court being satisfied of some jurisdictional fact. A relevant contract must, for example, have been made or breached in England or relevant damage sustained there. There are two closely related problems about this. The first is a legal one, namely that none of the law’s established evidential standards satisfactorily meets the case. The second is a practical one, namely that some jurisdictional facts, for example the existence of the contract said to have been made or breached in England, may be in issue at trial if the case is allowed to proceed, when they will in all probability be determined on fuller material than is likely to be available at the interlocutory stage. The same is true of the more general requirement that if it proceeds the claimant should have a reasonable prospect of success.
[After discussing the authorities, Lord Sumption continued:]
7. An attempt to clarify the practical implications of these principles was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547. Waller LJ, delivering the leading judgment observed at p 555:
‘“Good arguable case” reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, ie of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.’
When the case reached the House of Lords, Waller LJ’s analysis was approved in general terms by Lord Steyn, with whom Lord Cooke and Lord Hope agreed, but without full argument: [2002] AC 1, 13. The passage quoted has, however, been specifically approved twice by the Judicial Committee of the Privy Council: Bols Distilleries (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28, and Altimo Holdings, loc. cit. In my opinion it is a serviceable test, provided that it is correctly understood. The reference to ‘a much better argument on the material available’ is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that 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; but (iii) 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. I do not believe that anything is gained by the word “much”, which suggests a superior standard of conviction that is both uncertain and unwarranted in this context.
[After discussing various matters, Lord Sumption concluded:]
15. It follows that on the information now available … there is no realistic prospect that … Holdings will be held vicariously liable for the negligence of the driver of the excursion vehicle. Lady Brownlie’s claim does not satisfy the specific factual requirements of the gateways. A fortiori, it does not satisfy the general requirement that there should be a reasonable prospect of success.
[Lord Sumption then proceeded to discuss the claims in tort. This part of his judgment was rejected by the majority.]
32. I would allow the present appeal and declare that Holdings not being the owner or operator of the Four Seasons Hotel at Nile Plaza Cairo, or vicariously liable for the driver of the car, the court has no jurisdiction to try any of the claims presently made in this action. In those circumstances it is unnecessary to make any order on the cross-appeal which Lady Brownlie has brought against the Court of Appeal’s order that there was no jurisdiction to entertain her claims in tort for personal injury to herself and on behalf of Sir Ian’s estate. The parties should make submissions in writing on the form of order and on costs within 21 days. I would remit all other consequential matters to the High Court, so as to enable Lady Brownlie to make such applications as she may be advised to join additional parties, amend the draft Particulars of Claim or seek other relief. I express no opinion, even tentative, about the prospects of any such applications.
33. As we agree that this action cannot continue against the current defendant, everything which we say about jurisdiction is obiter dicta and should be treated with appropriate caution. For what it is worth, I agree (1) that the correct test is “a good arguable case” and glosses should be avoided; I do not read Lord Sumption’s explication in para 7 as glossing the test; and (2) that the action in tort is governed by Egyptian law and so the Fatal Accidents Act 1976 cannot apply to it, although Egyptian law may in fact allow for a similar claim, should permission ever be given to plead it.
…
35. Above all, however, (4) I wish to sound a note of special caution as to the correct interpretation of the gateway for claims in tort, contained in para 3.1(9) of the Practice Direction, which currently reads (the words in square brackets having recently been added):
‘3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where …
(9) A claim is made in tort, where –
(a) damage was sustained [, or will be sustained,] within the jurisdiction; or
(b) the damage which has been [or will be] sustained results from an act committed, or likely to be committed, within the jurisdiction.’
36. Although this has been done many times before, it may be helpful to trace the genesis of this rule. Before the advent of the Civil Procedure Rules 1998, service out of the jurisdiction was governed by the Rules of the Supreme Court, order 11, rule 1(1)(f). Before the Civil Jurisdiction and Judgments Act 1982 came into force, this referred only to cases “founded on a tort committed within the jurisdiction”. It was amended, with effect from the date when that Act came into force, to read “The claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction”. This broadened the gateway, because the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968, to which the United Kingdom acceded in 1978, and which was incorporated into United Kingdom law by the 1982 Act, provided a special jurisdictional rule, in article 5.3, that a person domiciled in a contracting state could be sued in another contracting state in matters relating to tort, delict or quasi-delict ‘in the courts for the place where the harmful event occurred’; in Bier v Mines de Potasse d’Alsace (Case C-21/76) [1978] 1 QB 702, the European Court of Justice had interpreted this phrase to refer both to the place where the damage occurred and the place of the event giving rise to it, so that the claimant could choose between them; it appears that the words ‘harmful event’ were deliberately chosen because it was not considered appropriate for the Convention to be specific between the two. In that case, damage had been done to horticultural nurseries in the Netherlands by the discharge into the Rhine of saline waste from operations in France.
[After discussing Dumez v. Hessische Landesbank and Marinari, Lady Hale continued:]
39. The Brussels Convention was replaced by Council Regulation (EC) No 44/2001 (the Brussels I Regulation) which was in turn replaced by Regulation (EU) No 1215/2012 (the recast Brussels I Regulation). Article 7.2 repeats the wording of article 5.3 of the Convention. Marinari is still the authoritative interpretation of ‘where the harmful event occurred’ in European law. It goes without saying, however, that we are not here concerned with a claim which is governed by the jurisdictional rules of European law. We are dealing with a claim against a defendant who is not domiciled in a member state, which is therefore governed by the jurisdictional rules of the law of England and Wales, now contained in the Civil Procedure Rules 1998 (CPR).
40. Under the CPR, the equivalent rule to RSC order 11(1)(f) was contained in CPR 6.20(8): ‘a claim is made in tort, where (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction’. The definite article was omitted from (a), in line with the holding of the Court of Appeal in Metall und Rohstoff AG v Donaldson Inc [1990] 1 QB 391, at p 437, that (a) did not require all the damage to be sustained in England; it was enough if “some significant damage” had been sustained here; and similarly that (b) did not require that all the acts constituting the tort be committed in England; it was enough if the tort was in substance committed here. Neither the Rules of the Supreme Court nor the Civil Procedure Rules required that permission be given to serve out of the jurisdiction if the relevant gateway applied; there was always a discretion not to do so, exercised in accordance with the principles laid down in Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. In the CPR, this was reflected in rule 6.21(2A): ‘the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim’.
41. There is a consistent line of first instance decisions holding that, in a case which is not governed by the European jurisdictional rules, a claim in tort may be brought in England if damage is suffered here as a result of personal injuries inflicted abroad. The first is Booth v Phillips [2004] EWCA 1437 (Comm), a decision of Nigel Teare QC (as he then was). This was a widow’s claim in negligence for her own loss of dependency and the funeral expenses of the estate of her deceased husband who had died while working as chief engineer on a vessel in Egypt. The judge rejected the argument that ‘damage’ referred to the damage which completed the cause of action. This was not what the rule said. The words used should be given their ‘ordinary and natural meaning, namely, harm which has been sustained by the claimant, whether physical or economic’ (para 35). Dropping the definite article reflected the decision in Metall that it was enough that some significant damage had been sustained here. He also rejected the argument that this was ‘improbably wide’, because the court had also to be satisfied that it was appropriate, in Spiliada terms, to exercise jurisdiction.
42. It does not appear that any argument based upon the Brussels Regulation was advanced in Booth, but it was advanced most vigorously, as it happens by Mr Howard Palmer QC, before Tugendhat J in the next case, Cooley v Ramsay [2008] EWHC 129 (QB). He accepted that RSC order 11, rule 1(1)(f) had been changed to give effect to the 1982 Act, but Parliament had not fully assimilated the rules relating to non-party states with those relating to the European member states. It had left in the significant difference that there was no discretion in the Convention and the Regulation, but there was such a discretion under the CPR. The object of the Convention and Regulation was to provide a clear and certain attribution of jurisdiction, but the CPR were more flexible. Hence a claimant who was severely disabled, with continuing needs for care, support and medical attention in this country as a result of a road accident in New South Wales, could bring his claim here.
43. By the time of the next case, the CPR had been amended. CPR rule 6.36 now refers to the various jurisdictional gateways set out in Practice Direction 6BPD CPR (no doubt to increase flexibility), but rule 6.37(3) repeats the rule that the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim. In Harty v Sabre International Security Ltd [2011] EWHC 852 (QB), the claimant was severely injured in a road accident in Iraq while working as a security consultant with the defendant. The defendant did not challenge the gateway, no doubt anticipating that MacDuff J would follow Booth and Cooley, and so the argument focussed on the discretion.
44. In the next case, Wink v Croatia Osiguranje DD [2013] EWHC 1118 (QB), where the claimant had been seriously injured in a road accident while on holiday in Croatia, a spirited attack upon the correctness of Booth and Cooley was mounted before Haddon Cave J, arguing that 6BPD should be interpreted consistently with European law, so that in a claim where both direct and indirect damage is alleged it is only the place where the direct damage is sustained which is relevant. The judge pointed to a number of obvious problems with this argument: there are no such limiting words in 6BPD, para 3.1(9)(a); the natural and ordinary meaning of ‘damage’ is any damage; the defendant’s argument was tantamount to saying that damage was sustained only where the injury occurs, which is plainly not so in many cases; it was this construction rather than that in Booth which required re-writing (paras 33–35). Agreeing with the ‘comprehensive’ analysis in Cooley, he held that the two schemes – in the Regulation and the Rules – were ‘fundamentally different in structure and policy’ (para 41).
45. In Stylianou v Toyoshima [2013] EWHC 2188 (QB), the claimant was very severely injured in a road accident in Western Australia and repatriated six weeks later. This time, the defendants argued that Booth and Cooley were incorrect, because they were decided before Regulation (EC) 864/2007 of the European Parliament and Council on the law applicable to non-contractual obligations (the Rome II Regulation) came into force. Article 4.1 provides that the applicable law shall be the law of the country “in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occurred”. Sir Robert Nelson rejected the argument that the CPR should be interpreted in the same way. He pointed out that article 2.1 of the Rome II Regulation provides that ‘damage shall cover any consequence arising out of the tort/delict …’, so that article 4.1 was expressly excluding what would otherwise be included in the word ‘damage’. There was no reason to interpret ‘damage’ in the CPR as in the specific article 4.1 rather than in the general article 2.1. In any event, Rome II was not about jurisdiction and did not override the CPR. The court’s discretion was a ‘valuable safety valve rendering unnecessary a narrow definition of damage’ (para 53).
46. Trying another tack, the defendant in Erste Group Bank AG (London Branch) v JSC ‘VMT Red October’ [2003] EWHC 2926 (Comm), argued that the judges in Cooley and Wink had failed to appreciate that the Rules Committee was intending to mirror the Brussels Convention as interpreted by Professor Jenard in his preparatory report. Flaux J rejected that argument as ‘hopeless’: the consistency argument had been rejected because the English rules were wider and that would not have been affected by anything that Professor Jenard had said (para 147). This was an action, inter alia, for the torts of conspiracy and interference with contract allegedly resulting in the failure of a Russian company to meet its obligations under a loan agreement. The case was taken to the Court of Appeal: [2015] EWCA Civ 379. Were it not for the string of first instance decisions to the contrary, the Court would have regarded as ‘very attractive’ the submission that the tort gateway was intended to reflect the European jurisprudence (para 103) and expressed ‘very serious reservations’ as to whether those decisions were right. But they preferred not to decide the point as they did not need to do so, having found that the damage was all sustained in New York.
47. Finally, in Pike v Indian Hotels [2013] EWHC 4096 (QB), where the claimants had been injured trying to escape from the Taj Mahal Palace in Mumbai during the terrorist attack, Stewart J agreed with Sir Robert Nelson’s ‘comprehensive demolition’ of arguments based on European Union law and held that outside the European context the previous decisions were correct.
48. It is clear from reading these first instance decisions that each of these judges was not slavishly following the decisions which preceded his own. They carefully considered and rejected the ever more sophisticated arguments against them but clearly considered that they were correct. So do I.
49. In the first place, I entirely agree with Lord Sumption that the argument based on the Rome II Regulation, accepted by the Court of Appeal in this case, should be rejected. [This was the argument that because indirect consequences of the tort are not taken into account for the purpose of choice of law, they should not be taken into account for the purposes of jurisdiction.] Applicable law and jurisdiction are two different matters. There is no necessary coincidence between the country with jurisdiction and the country whose law is applicable. It is accepted that in this case Egyptian law is applicable to the tort claims. Furthermore, there can only be one applicable law, whereas even in European law there can often be more than one country with jurisdiction.
50. Indeed, I see no reason to think that those who framed the RSC and CPR intended them precisely to mirror the interpretation later given to the Brussels Convention. The language used in the Rules, although no doubt intended to widen the gateway so as to encompass the cases covered by the Brussels Convention, is quite different from the language of the Convention. The Dumez and Marinari decisions came afterwards, to restrict the scope of the language used in the Convention, but they do not override the language of the Rules in non-EU cases. They are of no help in construing Rules which have remained in essentially the same language ever since. If the Rules Committee had wanted to assimilate the Rules after the decisions in Booth and Cooley, they could easily have done so, and now more easily, as the gateways are contained in a Practice Direction rather than a Rule.
51. It is also necessary to bear in mind the difference between the two schemes. The European scheme deliberately eschews any discretion in favour of clear and certain rules, in the context of a scheme which governs, not only jurisdiction, but also recognition and enforcement of the resulting judgments. No doubt that is why the Court of Justice was anxious to restrict the scope of the Bier decision by drawing the direct/indirect distinction. That is not a feature of the English scheme, which retains the ‘valuable safety valve’ of discretion, a discretion which need not be limited to the Spiliada principles, but can concentrate on the real question, which is ‘the proper place for the resolution of the dispute’ (as Professor Briggs puts it).
52. I also have great difficulty with the approach to ‘damage’ adopted by Lord Sumption. He appears to equate ‘damage’ in the Rule with the damage which completes the cause of action. It is true that damage is an essential component of some torts, such as the tort of negligence and the economic torts, so that it is necessary to know if and when the cause of action is complete for purposes such as limitation. But damage is not an essential part of every cause of action in tort. There are many torts which are actionable per se, without proof of damage: trespass to the person, trespass to goods, libel and some slanders are the obvious examples. There is no particular reason to think that completion of the cause of action is what the framers of the Rules had in mind when they used the word ‘damage’. They are more likely to have had the ordinary and natural meaning of the word in mind. I would be very reluctant to disagree with the several first instance judges who held that this refers to the actionable harm caused by the wrongful act alleged. In this they have the support of a very distinguished Court of Appeal in New South Wales, in Flaherty v Girgis (1985) 63 ALR 466, where Kirby P and Samuels JA agreed with McHugh JA, construing a similar jurisdictional rule, that ‘damage, therefore, is to be contrasted with the element necessary to complete the cause of action; it includes all the detriment, physical, financial and social which the plaintiff suffers as a result of the tortious conduct of the defendant’ (p 482).
53. Furthermore, it is quite clear that damage can be suffered by the same person in more than one place, just as the wrongful acts can be committed in more than one place. The Court of Appeal in Metall must have been right to say that the Rules contemplated the possibility of there being jurisdiction in more than one place. Nor do I find the distinction between direct and indirect damage easy to draw in all cases. If I am seriously injured in a road accident, the pain, suffering and loss of amenity that I suffer are all part of the same injury and in cases of permanent disability will be with me wherever I am.
54. I do, of course, take the point that the claimant should not be in the position of choosing where to bring the claim. But in my view the discretion should be robust enough to prevent that. It is looking for a substantial reason to allow a claim against a foreign defendant to be brought in the courts of this country and the courts have always treated such cases with caution. And it is important to bear in mind that, in a tort claim, the applicable law will be the law of the country where the events took place.
55. I was for a while attracted by a middle course, which would restrict ‘damage’ to the continuing bodily (physical or psychological) effects of the wrongful act, because these are part and parcel of the initial injury, but excluding consequential financial losses. But it is difficult to find a warrant for that in the language used and in some torts the damage is wholly financial, so that separating out the direct and the consequential would be even more difficult. In the end, therefore, I would adopt the ordinary and natural meaning of the language used in the Rules.
Under Practice Direction 6B, paragraph 3.1(3) (Panel 6.4), the court has jurisdiction over a defendant if he is a ‘necessary or proper’ party to proceedings against another party and the court has jurisdiction over that other party on some other ground. This is similar to Article 8(1) and (2) of Brussels 2012 (discussed in Chapter 4, § 2), but it is wider. It is wider than the rule in Article 8(1) (claimant suing two defendants) because it is not limited to the case in which the ‘anchor’ defendant is sued in the court of his domicile. Thus, under the English rule, the ‘anchor’ defendant may be served while on a short visit to England.
The second difference is that, under Article 8(1), the claims must be so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. There is no similar limitation on the English rule, though the requirement that the second defendant must be a necessary or proper party goes some of the way in the same direction.
The policy arguments concerning this ground of jurisdiction were discussed in Chapter 4, § 2, above.
The traditional English rules contain no special provisions on parties regarded as being in a weak bargaining position – for example, consumers or employees.
3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where –
…
(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –
In addition to jurisdiction based on the service of the claim form, jurisdiction may also be obtained through the consent of the defendant. It is traditionally considered that there are three ways in which this may be given: the defendant may agree expressly that the court will have jurisdiction (choice-of-court agreement); he may plead to the merits without challenging the jurisdiction of the court (submission); or he may himself invoke the jurisdiction of the court, in which case he is regarded as consenting to its jurisdiction to make an order against him (for example, as regards costs) and with regard to a counterclaim.
Choice-of-court agreements will be considered in Chapter 8. All that need be said here is that, even though the jurisdiction of the court is not dependent on the service of the claim form, it must nevertheless be served for procedural reasons. As we saw above, this may be done under Practice Direction 6B, paragraph 3.1(6)(d) (Panel 6.2, above).
Whenever a claim form is served on a potential defendant, he always has the opportunity to contest jurisdiction before pleading to the merits. This does not constitute submission. However, if he fails to do this (or if he does it, but is unsuccessful) any attempt thereafter to defend the case on the merits will constitute submission. Article 26(1) of Brussels 2012 contains a similar rule (see Chapter 4, § 6). It prevents a defendant from contesting a case on the merits and then, if he loses, claiming that the court had no jurisdiction over him.
It is obvious that, if a claimant invokes the jurisdiction of a court, he must be taken as accepting its jurisdiction to decide the case against him. This includes an order to pay costs. A counterclaim is different. Under Brussels 2012, a court before which proceedings are brought has jurisdiction to decide a counterclaim against the claimant, but only if it arises from the same contract or facts as those on which the original claim was based (see Chapter 4, § 3). English law does not have this limitation, though an English court would not allow a counterclaim to be made unless this was desirable in the interests of justice. Where it was not desirable, the claim would have to be brought in separate proceedings, in which case there would have to be an independent ground of jurisdiction.
Like EU law, English law recognizes the concept of exclusive jurisdiction. If a foreign court has exclusive jurisdiction, the English courts will not be able to hear the case, even if the claim form is served in England (or if it is served outside England under the provisions of the CPR). The most important example (as under EU law) concerns land in a foreign country.47 On intellectual property (copyright infringement), see Lucasfilm v. Ainsworth [2011] UKSC 39; [2012] 1 AC 208; [2011] 3 WLR 487; [2012] 1 All ER (Comm) 1011 (Supreme Court). Under a rule originally laid down by the House of Lords in the nineteenth century in British South Africa Company v. Companhia de Moçambique,48 [1893] AC 602. English courts have no jurisdiction to hear proceedings for determination of title to, or the right to possession of, immovable property situated outside England. This rule, which is subject to certain exceptions,49 These exceptions apply where there is a contract or equity between the parties, or where the issue has to be decided for the purpose of the administration of an estate or trust and the property consists of movables or immovables in England as well as immovables outside England. was originally wider in scope and also precluded English courts from hearing actions in tort for trespass to foreign land and (probably) for other torts affecting foreign land. However, it was provided by the Civil Jurisdiction and Judgments Act 1982, section 30 (set out in Panel 6.5), that the court was not barred from hearing such actions unless the case was principally concerned with title to, or the right to possession of, the property.50 Civil Jurisdiction and Judgments Act 1982, section 30. Except in these latter cases, the normal rules of jurisdiction apply.
(1) The jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property.
(2) Subsection (1) has effect subject to the 1968 Convention and the Lugano Convention and the Regulation1 Editor’s note: this is the Brussels I Regulation. and to the provisions set out in Schedule 4.
1 Editor’s note: this is the Brussels I Regulation.
Where the immovable property is situated in a State to which the Brussels I Regulation or the Lugano Convention applies, the English courts will have no jurisdiction where these instruments give exclusive jurisdiction to the courts of the State in which the property is situated.51 See Chapter 4, § 5.
What is the position where the immovable property is situated in a State to which the European instruments do not apply? If the defendant is not domiciled in a State to which the European instruments apply (and there is no other ground on which they are applicable), the English rule will apply. The answer is not clear, however, where the English courts have jurisdiction under the European instruments – for example, because the defendant is domiciled in England (see Chapter 4, § 5). The English courts ought to be permitted to stay the proceedings in such cases, but one cannot be certain that the CJEU will accept this.52 See Gaudemet-Tallon (Hélène), Compétence et Exécution des Jugements en Europe (LGDJ, Paris, 6th edn, 2018), pp. 144–6 (paragraph 106). But see the Report on the Accession Convention of 1989 (San Sebastian) by Almeida Cruz, Descantes Real and Jenard, OJ 1990 C 189, p. 35 at p. 47 (paragraph 25(d)); for the Lugano Convention, see the Jenard/Möller Report, p. 76 (paragraph 54). See, further, Takahashi, ‘Review of the Brussels I Regulation: A Comment from the Perspectives of Non-Member States (Third States)’ (2012) 8 JPIL 1 at pp. 8–11, who argued that an express provision should be inserted into Brussels 2012. Unfortunately, no such provision was adopted.
The traditional English rules of jurisdiction have been developed over many years through the common-law method of a slow accretion of precedents. In view of the highly international nature of the British economy, especially the financial-services industry centred on London, these rules place great emphasis on meeting the needs of international business. They are considerably more flexible than comparable rules in the legal systems of Continental Europe. In contrast to Continental judges, for whom the judiciary is almost always a career in itself rather than the culmination of a career in legal practice, the English judges have been able to draw on their experience as practising lawyers to ensure that their decisions reflect practical needs and concerns, rather than to advance objectives of a theoretical nature. It is this difference of approach that is the hallmark of the common-law system.
1 As we saw in Chapter 3, § 7, and Chapter 4, § 5, above, they also apply in certain situations even if the defendant is not domiciled in any EU or Lugano State.
2 This is subject to the exceptions mentioned in the previous footnote.
3 The term ‘claim form’ replaced ‘writ’ in England as a result of the adoption of the CPR in 1999. ‘Writ’ is still the correct term in the Commonwealth and the United States.
4 There were (and are) exceptions. For example, the court will not have jurisdiction to decide questions of rights in rem in foreign immovables: British South Africa Co. v. Companhia de Moçambique [1893] AC 602 (HL).
5 Today, a claim form is often served by the court: CPR 6.4.
6 The original might be shown to him, and a copy given to him.
7 See now CPR 6.15.
8 CPR 6.3(1).
9 Except for proceedings involving small sums of money, England is not divided into different judicial districts: there is a single court of unlimited civil jurisdiction for the whole of England and Wales – the High Court. Under the Civil Procedure Rules, ‘jurisdiction’ is defined as meaning England and Wales: CPR 2.3.
10 If the defendant was enticed or tricked into entering the country – still less, if he were kidnapped by the claimant and brought within it by force – service of a claim form on him would not give the court jurisdiction: see Stein v. Valkenhuysen (1858) EB & E 65; Watkins v. North American Lands Co. (1904) 20 TLR 534 (HL).
11 See Chapter 3, § 5.
12 The doctrine of forum non conveniens was developed during the twentieth century.
13 The English action was actually brought to enforce an American judgment. Under the common law, a judgment given by a foreign court which had jurisdiction under the rules of English law creates a new cause of action (claim) which may be sued upon in England. In such proceedings, the defendant cannot challenge the substance of the foreign judgment, but may raise only a limited number of defences – for example, that the proceedings were contrary to natural justice. The fact that the action in Colt Industries v. Sarlie was brought on a foreign judgment was, however, irrelevant to the jurisdictional issue. This would have been exactly the same if the proceedings had been brought on an original cause of action.
14 (1895) 12 TLR 59 (Div. Ct).
15 (1608) 7 Co Rep 1a.
16 (1904) 20 TLR 534 (HL).
17 For further arguments on this point, see the judgment of the US Supreme Court in Burnham v. Superior Court of California, 495 US 604; 110 S Ct 2105; 109 L Ed 2d 631 (1990), set out in Chapter 7, below.
18 Today, proceedings will be stayed under the doctrine of forum non conveniens (discussed in Chapter 9, below) in a wider range of situations. However, the mere fact that the claim form was served on the defendant during a temporary visit to England is not in itself a ground for staying the proceedings.
19 [1936] 1 KB 382 at p. 398 (HL).
20 Chapter 3, § 6.4, above.
21 If the company is incorporated in England, it must have a registered office within the country. The claim form may be served on it there: the Companies Act 2006, section 1139(1). This provision re-enacts earlier provisions to the same effect.
22 See Chapter 3, § 6.4, above.
23 See also the table in CPR 6.9(2). This is subject to the exceptions already mentioned. See further Saab v. Saudi American Bank [1999] 1 WLR 1861 (CA).
24 See Littauer Glove Corporation v. Millington Ltd (1928) 44 TLR 746, a case in which the principle was applied to a foreign judgment.
25 [1977] 2 Lloyd’s Rep 428. See now SSL International v. TTK LIG [2011] EWCA Civ 1170; [2012] 1 WLR 1842 (CA), which confirms that this is still the position under the CPR.
26 [1911] 2 KB 516 (CA).
27 [1914] 1 KB 715 (CA).
28 As we shall see in Chapter 15, English courts sometimes apply more restrictive rules for the purpose of recognizing foreign judgments than for deciding whether they themselves have jurisdiction; however, this was not the case here.
29 Cf. The Theodohos [1977] 2 Lloyd’s Rep 428.
30 Case 139/80, [1981] ECR 819.
31 An affidavit is a written statement made under oath.
32 Seaconsar Ltd v. Bank Markazi [1994] 1 AC 438; [1993] 3 WLR 756 (HL).
33 The claim form must normally be served personally on the defendant; however, where there is a special reason, it is possible, with the permission of the court, to serve it by an alternative method. In such a case, it may even be served in England. See CPR 6.15.
34 See Chapter 4, § 6.
35 See CPR 6.40 et seq.
36 CPR 6.40(4).
37 CPR 11.
38 Practice Direction 6B, paragraph 3.1(6)(a).
39 Entores v. Miles Far Eastern Corporation [1955] 2 QB 327 (CA).
40 An English court will always apply the English rules on this matter: there is no room for choice of law.
41 Practice Direction 6B, paragraph 3.1(6)(b).
42 (1922) 18 TLR 832 (CA).
43 Practice Direction 6B, paragraph 3.1(6)(c).
44 Practice Direction 6B, paragraph 3.1(6)(d).
45 Practice Direction 6B, paragraph 3.1(7).
46 Practice Direction 6B, paragraph 3.1(8).
47 On intellectual property (copyright infringement), see Lucasfilm v. Ainsworth [2011] UKSC 39; [2012] 1 AC 208; [2011] 3 WLR 487; [2012] 1 All ER (Comm) 1011 (Supreme Court).
48 [1893] AC 602.
49 These exceptions apply where there is a contract or equity between the parties, or where the issue has to be decided for the purpose of the administration of an estate or trust and the property consists of movables or immovables in England as well as immovables outside England.
50 Civil Jurisdiction and Judgments Act 1982, section 30.
51 See Chapter 4, § 5.
52 See Gaudemet-Tallon (Hélène), Compétence et Exécution des Jugements en Europe (LGDJ, Paris, 6th edn, 2018), pp. 144–6 (paragraph 106). But see the Report on the Accession Convention of 1989 (San Sebastian) by Almeida Cruz, Descantes Real and Jenard, OJ 1990 C 189, p. 35 at p. 47 (paragraph 25(d)); for the Lugano Convention, see the Jenard/Möller Report, p. 76 (paragraph 54). See, further, Takahashi, ‘Review of the Brussels I Regulation: A Comment from the Perspectives of Non-Member States (Third States)’ (2012) 8 JPIL 1 at pp. 8–11, who argued that an express provision should be inserted into Brussels 2012. Unfortunately, no such provision was adopted.