Instructing a solicitor to accept service is also considered to be an act of submission to the jurisdiction according to CPR6.4(2), and a defendant will also be considered to have submitted to the jurisdiction if he makes a counterclaim before the English court according to Para 3.1 of Practice Direction 6b.
Where the parties have signed a jurisdiction clause in favour of the English courts they will also be deemed to have submitted to the jurisdiction even though they may be resident abroad.
Defendant outside jurisdiction
When a defendant is not present within the jurisdiction and does not submit to it the court has limited power to allow service outside the jurisdiction under Para 3.1 of Practice Direction 6b. The power is discretionary and the claimant must show that the English court is forum conveniens. In order to do this he must demonstrate that to pursue the action in the English forum would be in the best interests of justice and all the parties according to the test laid down in Spiliada. He will also need to show that there is a serious issue to be tried involving a substantial question of fact or law (Seaconsar).
In relation to actions based on contract law, under Para 3.1 of Practice Direction 6b the court has the power to grant leave to serve outside the jurisdiction when the contract was formed within the jurisdiction or through the intermediary of an agent present in the jurisdiction. In Lincoln National Life although some insurance slips were ‘scratched’ in London and others abroad, the action was held to fall within the jurisdiction of the English court since all contracts had been arranged by an agent trading within the jurisdiction. Where the contract is governed by English law, the English courts have jurisdiction. A jurisdiction clause in favour of England gives rise to a prima facie presumption of jurisdiction. In The Chaparral the court was asked to exercise its discretion to set aside a writ because proceedings had already commenced in the United States. However due to a jurisdiction clause in favour of the English court, the court used its discretion to hold the parties to their bargain and refused the stay.
Leave to serve may also be granted against an additional defendant outside the jurisdiction provided it is necessary and proper to serve him. In Kuwait v Al Bader it was held to have been clear even to students at the Inns of Court School of Law that the defendant within the jurisdiction must be served before the additional defendants outside the jurisdiction.
Forum Non Conveniens
In some cases a defendant may seek a stay of the English action arguing that the English court is forum non conveniens or that an action relating to the same issue has been commenced in another jurisdiction (lis alibi pendens) in which case he will have to show, in accordance with the test laid down in Spiliada, a prima facie case that another forum has a real and substantial connection with the action and better serves the interests of justice and of all the parties. The burden then shifts to the claimant to show there are special circumstances because of which the English forum is appropriate. Where a contract contains a jurisdiction clause in favour of a foreign jurisdiction, the claimant must show a very strong case in support of the English jurisdiction to oust it. In The Eleftheria the claimants were unable to show good cause why they should not be held to their agreement to submit disputes to the courts of Athens.
Injunctions
In other cases one party may seek to restrain the other from engaging proceedings abroad. The courts are very reluctant to interfere with foreign justice for reasons of comity and will only do so if the foreign proceedings are vexatious and oppressive to the claimant. (SNIA v Lee)
Public Policy
Fawcett argues that many of the factors that the courts take into consideration in deciding whether a claim should be heard in England or abroad, are essentially public policy factors of which he identifies nine:
satisfaction of the parties' interest in an economical trial;
protection of the parties;
protection of other persons affected by the trial;
maintenance of harmonious relations with other states;
ensuring that a minimum standard of justice is available in the alternative forum;
advancement of the forum's interest in trial in England;
giving effect to the plaintiff's choice of an English forum;
maintenance of an efficient administration of justice, and
upholding agreements on jurisdiction.
According to Fawcett the rules currently used to decide whether a case should be heard in England or abroad in circumstances where the court needs to consider whether to serve outside the jurisdiction, to restrain foreign proceedings, or to grant a stay of English proceedings on the grounds of forum non conveniens or lis alibi pendens, should be replaced by these policy considerations, some of which naturally favour the defendants, and some the claimants, but most of which would acquire different weightings and ultimately favour one party or the other depending on the circumstances of each case.
Conclusion
The rules applied by the English courts in deciding jurisdiction vary according to the type of application before it and are largely based on discretion. The factors to be considered in exercising the court’s discretion often overlap, and, according to Fawcett, the courts should use the same set of policy considerations to determine all cases where they are asked to exercise their discretion in determining questions of jurisdiction.
Maharanee of Baroda v Wildenstein [1972] 2 All ER 689
1139-1142 of the Companies Act 2006 (C. 46)
South India Shipping Corpn Ltd v Export-Import Bank of Korea [1985] 2 All ER 219
Williams and Glyn’s Bank v Astro Dinamico [1984] 1 WLR 438
Spiliada Maritime Corporation v Cansulex Ltd [1987] A.C. 460
Seaconsar Far East v Bank Markazi Jomouri Islami Iran [1993] 4 All ER 163
Lincoln National Life Insurance Co v Employers Reinsurance Corp [2002] Lloyd’s Rep IR 853
The Chaparral [1968] 2 Lloyd’s Rep 158
"Any dispute arising must be treated before the London Court of Justice."
Kuwait Oil Tanker Co SAK v Al Bader [1997] 1 WLR 1410
Ibid at 1414
[1969] 2 W.L.R. 1073 [1970] P. 94
Societe Nationale Industrielle Aerospatiale (SNIA) v Lee Kui Jak [1987] A.C. 871
J J Fawcett, ‘Trial in England or Abroad: The Underlying Policy Considerations’ (1989) Oxford Journal of Legal Studies, at 205-229.
ibid
by
dxb625 (student)
