Contributed By Signature Litigation LLP
In determining whether the English courts have jurisdiction to hear a dispute, two principal sets of rules must be considered: the European regime and common law rules.
Regulation (EU) 1215/2012 (known as the Recast Brussels Regulation) takes precedence over the common law rules where it applies. Under the Recast Brussels Regulation there is an effective hierarchy of provisions governing jurisdiction. First, there are a number of matters over which EU member states have exclusive jurisdiction, such as disputes in relation to immovable property or intellectual property rights. Next, the courts will consider whether there is a valid jurisdiction agreement between the parties. If not, an appearance by the defendant in the proceedings (by, for example, making an application other than to contest jurisdiction) will give the English court jurisdiction to hear the dispute. In the absence of these scenarios, the general rule is that a defendant should be sued in the country in which the defendant is domiciled. There are some notable exceptions to this general rule, however, whereby a defendant who is domiciled in an EU member state may alternatively be sued in the courts of another member state. These exceptions include:
If the Recast Brussels Regulation (or other European treaties) do not apply (for example if the defendant is not domiciled in the UK), the court will determine whether it has jurisdiction by applying common law rules. These rules generally provide that the court has jurisdiction where a defendant has been validly served with the proceedings within the jurisdiction, for example by way of personal service (discussed in 3.5 Rules of Service, below). However, the defendant may 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'). The court will also have jurisdiction where the defendant otherwise submits to the jurisdiction by, for example, taking a step in the proceedings.
If the defendant cannot be served with the claim form within the jurisdiction, the claimant may obtain the court's permission to serve the claim form outside of the jurisdiction, provided the claimant shows that:
The 'jurisdictional gateways' include: