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29 Oct 2015

When will the English Courts have jurisdiction over a dispute?


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Defendant domiciled in England

The Recast Brussels Regulation (no. 1215/2012) (which applies to all member states of the European Union) applies to proceedings commenced on or after 10 January 2015 and provides that (subject to certain exceptions) both individuals and legal persons (e.g. companies) should be sued in the member state in which they are domiciled. This means that, if a defendant is domiciled in England, the English Court will have jurisdiction over the dispute and it will not be open to the defendant to argue that the case should be determined by the courts of a different jurisdiction.

An individual is domiciled in England if they are (i) resident in the jurisdiction and (ii) the nature and circumstances of their residence indicate a substantial connection with the jurisdiction. The English Courts have held that an individual can be resident in multiple jurisdictions. This may be the case where a defendant has business interests in multiple jurisdictions and spends periods of time in each. The English Court will consider all of the circumstances when deciding whether an individual is resident in this jurisdiction. The fact that a defendant owns a property in England is, on its own, unlikely to be sufficient. The claimant must show that there is a good arguable case that the property is the defendant's settled or usual place of abode (i.e. where they live). A degree of permanency is required. The English Court is likely to take into account factors such as whether the defendant's family lives at the property and the number of nights the defendant has spent at that property in recent years, compared to nights spent in other jurisdictions. It is also likely to consider the portion of the defendant's business interests that are in this jurisdiction, compared to other jurisdictions.

A legal person, such as a company, will be domiciled at the place where it has its statutory seat, central administration or principal place of business. English, Irish and Cypriot companies are domiciled at the place of their registered office.

Defendant domiciled outside of England but within another European Union member state

Under the Recast Brussels Regulation, the English Courts will have jurisdiction to determine a dispute involving a defendant that is domiciled in another European Union member state in certain defined circumstances.

The English Courts will have jurisdiction over a dispute relating to a contract if the obligation which is subject to the dispute was to be performed in this jurisdiction.

The English Courts will also have jurisdiction to determine a dispute where it relates to a tort, and the harmful act which is subject to the dispute occurred in this jurisdiction.

Where parties have entered into an agreement that confers jurisdiction exclusively on the English Courts to settle any disputes arising under that agreement, the English Courts will have exclusive jurisdiction over such disputes (provided the agreement is valid under English law). We note that this will also be the case even if neither the claimant nor the defendant is domiciled in this jurisdiction.

If a dispute involves a number of defendants based in different European Union member states, the English Court will have jurisdiction to determine the matter against all defendants if (a) one defendant is domiciled in England and (b) the claims against the various defendants are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments. The Lugano Convention, which governs jurisdictional matters between European Union member states and Norway, Switzerland and Iceland, contains the same provision.

Non-European Union defendant

The English Court will automatically have jurisdiction over a defendant who is domiciled outside the European Union if the defendant can be served with the claim form while in England. This includes where papers are served on an individual who is only visiting the jurisdiction. However, in these circumstances the defendant can argue that the English Court should not exercise its jurisdiction if there is a more appropriate forum (known as the doctrine of "forum non conveniens").

If the defendant cannot be served while in England, the claimant will need to obtain the English Court's permission to serve the claim form outside the jurisdiction.  In order to obtain permission, the claimant will have to show (in relation to each cause of action which forms part of the claim) that: (1) there is a serious issue to be tried in relation to the foreign defendant (i.e. the claim must have a real prospect of success); (2) there is a good arguable case that the claim falls within one or more of the "jurisdictional gateways" set out in the Civil Procedure Rules; and (3) England is clearly the appropriate forum for the case and the Court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.

One of the "jurisdictional gateways" relates to claims in tort where the damage was sustained within the jurisdiction or resulted from an act committed within the jurisdiction. For example, if an English bank is induced to lend money to a borrower abroad by misrepresentations, the damage can be said to have been sustained in this jurisdiction, as the loan was advanced in England.

Another gateway is where the dispute relates to a contract which is governed by English law or contains a term conferring jurisdiction on the English Courts to determine any claim in respect of the contract.

Another useful gateway in fraud litigation is the "necessary or proper gateway". If one defendant is served (either in England or with the Court's permission pursuant to one of the other jurisdictional gateways), then the claimant can obtain permission to serve the claim form on another person outside the European Union who is a necessary or proper party to the claim. This gateway can be very useful in fraud litigation where there are often a number of defendants based in different jurisdictions.

When considering if the English Court is clearly the appropriate forum for the dispute to be determined, the factors the English Court may consider are wide, and include: (i) the personal connections the parties have to the countries which are relevant to the dispute (ii) the factual focus of the dispute (i.e. in what country/countries did the relevant events occur) (iii) factors affecting convenience or expense, such as the location of witnesses and / or documents (iv) applicable law and (v) whether the matter would receive a fair trial in another jurisdiction.

Practical Points

England is a leading jurisdiction for fraud litigation. Our Courts are highly experienced, and have significant powers to grant interim relief (including freezing and disclosure orders). It is worth considering incorporating English jurisdiction clauses in agreements relating to international transactions. Even if there is no such clause, sometimes parties can nonetheless be joined to English proceedings through various gateways or personal service in England.



Ros Prince

Ros Prince

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