Last Updated July 15, 2019

Law and Practice

Authors



Signature Litigation LLP has offices in London, Paris and Gibraltar specialising in complex, high-value, multi-jurisdictional litigation and arbitration. The firm has no transactional practice, and seeks to minimise the constraints posed by commercial and legal conflicts of interest. Its lawyers have trained and previously worked at other top-tier UK, US and international law firms. Its multi-award winning team has advised on some of the most significant and complex disputes in recent legal history, spanning a range of sectors including banking and financial services, energy and natural resources, pension, private equity, trusts and insurance.

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:

  • claims where there is a close factual connection to another member state, such as the place of performance of a contract or, in respect of a tortious claim, the place where harm has occurred;
  • claims which are closely connected to proceedings in another member state such as proceedings where the defendant is one of a number of defendants, third party claims and counter-claims; and 
  • specific jurisdictional provisions in respect of certain claims such as insurance claims, consumer contracts and employment contracts. 

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:

  • there is a serious issue to be tried;
  • there is a good arguable case that the claim falls within one of a number of 'jurisdictional gateways' set out in the Civil Procedure Rules; and
  • England is the most appropriate forum.

The 'jurisdictional gateways' include:

  • where the dispute relates to a contract made within the jurisdiction or which is governed by English law;
  • a contractual claim where the breach of contract was committed within the jurisdiction;
  • a tortious claim where the damage was suffered within the jurisdiction or resulted from an act committed within the jurisdiction; and
  • where the defendant is a necessary and proper party to the claim (which has been validly served on another 'anchor' defendant).
Signature Litigation LLP

138 Fetter Lane
London
EC4A 1BT

+44 0 20 3818 3500

+44 0 20 3818 3501

info@signaturelitigation.com www.signaturelitigation.com
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Authors



Signature Litigation LLP has offices in London, Paris and Gibraltar specialising in complex, high-value, multi-jurisdictional litigation and arbitration. The firm has no transactional practice, and seeks to minimise the constraints posed by commercial and legal conflicts of interest. Its lawyers have trained and previously worked at other top-tier UK, US and international law firms. Its multi-award winning team has advised on some of the most significant and complex disputes in recent legal history, spanning a range of sectors including banking and financial services, energy and natural resources, pension, private equity, trusts and insurance.

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