Civil Litigation SGS 10 PDF

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Civil Litigation SGS 10 Foreign Jurisdiction

STEP 1 – DOES THE REGULATION APPLY? 1. IS THERE AN INTERNATIONAL ELEMENT TO TTHE HE CLAIM?

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Defendant or Claimant abroad? Property abroad?

2. MATERIAL SCOPE:

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The Regulation only applies where: a) There is a sufficient connection between the claim and a Regulation Member State 27 Regulation Member States in the EU. These are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Spain and Sweden. In addition, the UK continues to follow the Regulation during the transition period after its exit from the EU. b) It only applies to certain types of claim: Art 1(1) – The regulation only applies to civil and commercial matters.

3. TEMPORAL SCOPE:

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On or after the 10 January 2015.

4. CONCLUSION

STEP 2 – DO THE ENGLISH COURTS HAVE JURI JURISDICTION SDICTION TO HEAR THE CLAIM? Art 4 – Proceedings in defe ndant ’s domicile. defendant ndant’s Art 62 (individual) Art 63 (company) Art 63(2) statutory seat

Art 25 – Choice Choice of jurisdiction Subject to weaker party provisions in sections 3, 4 and 5 – for matters related to insurance, consumer contracts and contracts of employment.

Art 26 – Submission “a court of a Member State before which a defendant enters an appearance shall have jurisdiction.”

Art 24 – Exclusive jurisdiction (1) (2) (3) (4) (5)

rights in rem over immovable property object the validity of a company object the validity of entries in public registers IP rights enforcement concerns

STEP 3 – WILL THE COURTS OF EENGLAND NGLAND AND WALES AC ACCEPT CEPT JURISDICTION? Lis pendens Art 29 + Art. 30 Art 32. court deemed seised = the document instituting the proceedings is received by the court or if it requires service before lodging with the court, when it is received by the agent responsible for service. PROVIDED THAT the claimant then gets on with any steps that it is required to undertake to effect such service / lodging.

THE COMMON LAW RULES:

If the Regulation (or any other non-examinable jurisdiction regime) does not apply to your client’s particular case, the court will (in summary) apply the Common Law Rules to decide whether or not it will have jurisdiction to hear the dispute. Under the Common Law Rules, the courts of England and Wales will have jurisdiction over a foreign defendant in the following circumstances: -

Presence OR

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Submission OR

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Permission

Presence: Under the Common Law Rules, a foreign defendant will (in principle) be subject to the jurisdiction of the courts of England and Wales if the proceedings are served on the defendant whilst that defendant is within the jurisdiction. Must have either: -

Permanent presence (e.g. D has a company office in Birmingham)

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Temporary presence (e.g. D was visiting for a week when claim was issued).

D must prove English courts aare re not ‘forum conveniens’ (= proper place to bring claim). Use Proper Place test to prove different jurisdiction is more suitable

Proper place test: *all circumstances of the case* [the burden of proof is on the party seeking the stay] 1. Is England the natural forum: -

D’s Residence or place of business

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Applicable law

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Availability of witnesses

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Local knowledge - would this help?

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Cost, delay or inconvenience of bringing proceeding - is it necessary to fly out witnesses/experts? Evidence in a different jurisdiction?

If England is the natural forum, then England is the proper place to bring the claim and permission will be granted.

2. If England is not the natural forum, apply the second step: Does substantial justice require the case to be tried in England? If so, grant permission.

Submission: In principle, a foreign defendant will be subject to the jurisdiction of the courts of England and Wales if it submits to their jurisdiction. There are 2 main ways in which a defendant can submit to the jurisdiction of the court: 1. Appointing an agent for service of process - e.g. instructing an English solicitor 2. Appearing in the proceedings: D takes a step in proceedings, e.g. file defence or apply for an order, or filing of docs is to contest jurisdiction.

If a defendant does not want to submit to the jurisdi ction of the court: jurisdiction It should not do anything more than: 1. acknowledge service within the appropriate time limit, indicating on the acknowledgment of service an intention to dispute jurisdiction; and 2. apply under CPR 11 for a declaration that the English court lacks jurisdiction to hear the dispute.

Permission: Where the courts of England and Wales give the claimant permission to serve the proceedings on the foreign defendant out of the jurisdiction. CPR 6.36 The court may give the claimant permission to serve proceedings on a foreign defendant outside of the jurisdiction. In applying for this permission, there is a three stage test to meet - the application for permission under CPR 6.36 must set out: 1. CPR 6.37(1)(a) the ground(s) upon which the application is made (often referred to as ‘jurisdictional gateways’ which are set out in 6BPD 3.1); and 2. CPR 6.37(1)(b) that the claimant believes his claim has a reasonable prospect of success; and 3. CPR 6.37(3) that England and Wales is the ‘proper place’ in which to bring the claim.

Step 1: establish a ‘jurisdictional gateway’ The applicant must show that the English court has jurisdiction within at least one of the 6BPD 3.1 grounds: 1. 6BPD 3.1(3) and (4) Necessary or proper party

6BPD 3.1(3) is used where a claim is made against someone (i.e. the defendant) on whom the claim form has already been/will be served and: a) there is, between the claimant and that defendant, a real issue which it is reasonable for the court to try; and b) the claimant now wishes to also serve the claim form on another person who is [outside the jurisdiction and who is] also a necessary or proper party to that original claim against the defendant. 6BPD 3.1(4) is then used where a claim is a Part 20 claim (i.e. an ‘additional claim’ under CPR Part 20) and where the person to be served with the claim form is a necessary or proper party to that claim. 2. 6BPD 3.1(6) and (7) Contract i) A claim is made in respect of a contract, where: a) the contract was made within the jurisdiction; b) the contract was made by or through an agent trading or residing within the jurisdiction; c) the contract is governed by English law; or d) the contract contains a term conferring jurisdiction on the courts of England and Wales. OR ii) A claim is made in respect of a breach of contract committed within the Jurisdiction. Nb: Under the Common Law Rules, the fact that the parties have agreed that the courts of England and Wales will have jurisdiction will not by itself give the courts of England and Wales jurisdiction; it is still necessary for the claimant to apply to the court for permission to serve the proceedings on the defendant outside the jurisdiction. 3. 6B PD 3.1(9) Tort

A claim is made in respect of tort where: a) the damage was sustained within the jurisdiction; or b) the damage sustained resulted from an act committed within the jurisdiction.

Step 2: Reasonable prospect of success CPR 6.37(1)(b) The applicant must demonstrate a ‘reasonable prospect of success’ in the cause of action in respect of which he seeks permission. -

This is a relatively low threshold and has been equated to the prospect of success needed to resist an application for summary judgment (De Molestina v. Ponton).

Step 3: England and Wales is the proper place to bring the claim CPR 6.37(3) The court has an overriding discretion to refuse permission if England and Wales is not the ‘proper place’ (forums conveniens) to bring the claim. -

When applying for permission to serve a claim form outside the jurisdiction, the burden is on the claimant (i.e. the person applying for permission to serve the claim form abroad) to demonstrate that England and Wales is the proper place in which to bring the claim.

[for test see above]....