The English courts are often used to resolve disputes involving parties based in other countries. The reasons behind a party’s choice of the English courts can be many and varied, but the rules that govern the court’s ability to accept jurisdiction over these disputes are well established.
Why does the English court have jurisdiction?
The first point to note is that the residence, nationality, domicile or presence of the person bringing the claim is not directly relevant to the question of jurisdiction. In fact, it is quite possible (although unusual) for the claim to progress all the way through to trial and judgment without the claimant setting foot in England.
The first question the English court will ask is whether it has jurisdiction over the proposed defendant. In this article we will look only at the rules that apply to a defendant who is not resident in the UK, an EU state, or in Switzerland, Iceland or Norway. These may of course be the rules that apply when the UK leaves the EU.
The basic rule is that the English court has jurisdiction over a non-resident, non-EU defendant if either (1) the defendant can be served with court papers within England and Wales or (2) all the claims against the defendant fall within at least one of the categories of dispute over which the court is prepared to assert jurisdiction. Whether the court will actually exercise that jurisdiction depends on the factors mentioned below.
Service of court papers on the defendant while he or she is in England or Wales will establish the English court’s jurisdiction over the defendant. The presence of the defendant in the territory of the court denotes his or her acceptance of the jurisdiction of the English court. In the case of an individual, service during a short visit to the territory is effective. A corporate defendant though is only said to be ‘present’ in England and Wales if it is trading, directly or indirectly, in the territory. A visit by a director of an overseas company does not bring the company within the jurisdiction of the court.
If the defendant, individual or corporate, is not present within England and Wales, but has agreed that solicitors located in England and Wales can accept service on the defendant’s behalf, then the claimant can, indeed must, serve the solicitors and thereby can invoke the court’s jurisdiction over the defendant.
Similarly, if a dispute concerns a contract and an agent for service located within England and Wales has been appointed under that contract, then the court papers may be served on that agent.
If service within England and Wales is not possible, then the claimant has to obtain the court’s permission to serve the defendant elsewhere in the world. Permission will only be given if three conditions are satisfied: (1) the claim has a reasonable prospect of success; (2) England is the proper place in which to bring the claim; and (3) each claim falls within at least one of twenty-one categories or ‘gateways’. In other words the court must be satisfied that it both can and should assert jurisdiction over the claim.
Each of these conditions must be addressed in written evidence and presented to the court either on paper or at a hearing to which the defendant is not invited. The defendant’s chance to argue arises after service has been effected.
If the claim concerns a contract, then permission to serve a non-EU defendant may be given if the contract was made in England or Wales, or is governed by English law, or contains an agreement conferring jurisdiction on the English court, or was breached within England or Wales.
If the claim concerns a tort such as a claim in deceit or negligence, permission to serve may be given by the court if the damage or loss was sustained within England or Wales or resulted from an act committed within England or Wales.
There are also gateways for claims concerning trusts, real property, tax, costs, interim remedies and enforcement.
One other gateway that often proves useful in multi-party claims is the ‘necessary or proper party’ gateway. If there is one defendant who can be served within England and Wales, or with permission under another of the gateways, and against whom there is a real issue to be tried, then the court will allow the claim to be served on other parties outside the jurisdiction that are shown to be necessary or proper parties to the claim.
After service – can the defendant challenge jurisdiction?
Once the defendant has been served, whether in England and Wales or elsewhere, the defendant has only a short period of time in which to challenge the jurisdiction of the English court. The challenge must be lodged at court quickly and before the defendant takes any other steps to defend the claim. The court will then consider the challenge before the proceedings progress any further.
The defendant must convince the court that either the English court has no jurisdiction over him or her, or that, even if it has jurisdiction, it should not exercise it.
A challenge on the grounds that the court has no jurisdiction often involves asking the court to set aside its original grant of permission to serve out of the jurisdiction. The defendant can challenge each condition that the claimant put forward when obtaining permission. For example, the defendant can try to convince the court that the claim against it is so weak that it there is no serious issue to be tried and no real prospect of the claim succeeding. In a contract case, the defendant might argue that there was no agreement conferring jurisdiction.
It is common for a defendant to argue that even if the English court has jurisdiction, it is not the appropriate forum and should not exercise its jurisdiction. A challenge on this basis must always include evidence that there is another court of competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the case, and that it is not unjust that the claimant be deprived of the right to trial in England.
If the court is satisfied that there is another available forum that is more appropriate, the burden then shifts back to the claimant to show that there are special circumstances in the interests of justice for the case to remain in England. An example of this was seen in a high profile case that continued to trial in London because the court was satisfied at an early stage that although Russia was the natural forum for resolving the dispute, the risks to which one of the parties would be exposed if the case were to be tried in Russia were sufficient to make England the appropriate forum.
When determining which is the ‘most appropriate or natural forum’, the court will consider various factors to decide which forum has the most real and substantial connection with the claim. These factors include: convenience and expense, the whereabouts of witnesses, the governing law of the transaction, the parties’ places of residence and/or business, and the possible multiplicity of proceedings. No single factor overrides another and the court has a wide discretion, which it will exercise ‘in the interest of justice’.
If one of the defendants is domiciled in England and Wales then the current EU regulations on jurisdiction prevent the English court from declining jurisdiction over that defendant, even if it would otherwise consider another non-EU forum to be more appropriate. When the UK leaves the EU, this restriction should fall away.
What to expect if jurisdiction is disputed
Bringing a claim before the English courts with a substantial foreign (non-EU) element is quite possible, but does require a number of hurdles to be carefully overcome. Permission to serve may need to be obtained, service on the defendant in another country must be correctly executed, and any challenge by the defendant dealt with. If the claim involves multiple defendants, a mixture of contract and tort, or questions of foreign law, a dispute over jurisdiction can be lengthy and complex. It is, though, a preliminary hearing and a full consideration of the merits and evidence in the case will not be needed. The court will make its decision according to which party has ‘the better of the argument’. Once the issue is decided and any appeal dealt with, the parties can focus on resolution of the actual dispute.