Jurisdiction

Briggs, Adrian

doi:10.1093/law/9780192868145.003.0003

- Copyright Page
  - Notes
  - Notes
- Series Editors’ Preface
  - Notes
  - Notes
- Author Preface
  - Notes
  - Notes
- Table of Cases
  - Notes
  - Notes
- Table of Legislation
  - Notes
  - Notes
1 Introduction
- Notes
- Notes
2 Tools and Techniques
- Notes
- Notes
- A Introduction A Introduction
- B The Law B The Law
  - (1) The various meanings of jurisdiction (1) The various meanings of jurisdiction
    - (a) Personal jurisdiction (a) Personal jurisdiction
    - (b) Subject-matter jurisdiction (b) Subject-matter jurisdiction
    - (c) Jurisdiction to rule on jurisdiction (c) Jurisdiction to rule on jurisdiction
  - (2) Circumstances in which an English court has no jurisdiction to exercise (2) Circumstances in which an English court has no jurisdiction to exercise
    - (a) Common law non-jurisdiction: title to foreign land and foreign patents (a) Common law non-jurisdiction: title to foreign land and foreign patents
    - (b) Statutory removal of common law jurisdiction: defamation claims (b) Statutory removal of common law jurisdiction: defamation claims
    - (c) Limitations on jurisdiction derived from public international law (c) Limitations on jurisdiction derived from public international law
      - (i) State and sovereign immunity: partial and personal immunity (i) State and sovereign immunity: partial and personal immunity
      - (ii) Foreign acts of state: immunity of subject matter from examination (ii) Foreign acts of state: immunity of subject matter from examination
      - (iii) Foreign acts of state: exceptions to the rules (iii) Foreign acts of state: exceptions to the rules
    - (d) Cases mis-described as involving subject matter jurisdiction (d) Cases mis-described as involving subject matter jurisdiction
  - (3) Sources of the law which define personal jurisdiction (3) Sources of the law which define personal jurisdiction
    - (a) Common law jurisdiction: service on a defendant present within the jurisdiction (a) Common law jurisdiction: service on a defendant present within the jurisdiction
    - (b) International convention given effect in English law (b) International convention given effect in English law
    - (c) Legislation allowing service in England on an agent or representative (c) Legislation allowing service in England on an agent or representative
    - (d) Legislation giving court power to authorize service out of the jurisdiction (d) Legislation giving court power to authorize service out of the jurisdiction
    - (e) Legislation creating jurisdiction and giving claimant the right to serve out of the jurisdiction (e) Legislation creating jurisdiction and giving claimant the right to serve out of the jurisdiction
    - (f) Discretion in relation to the existence and exercise of jurisdiction by service (f) Discretion in relation to the existence and exercise of jurisdiction by service
  - (4) Contracts or terms which have jurisdiction as their subject matter (4) Contracts or terms which have jurisdiction as their subject matter
    - (a) The common law approach to choice of court agreements (a) The common law approach to choice of court agreements
      - (i) The law that governs a choice of court agreement (i) The law that governs a choice of court agreement
      - (ii) The meaning of a choice of court agreement: material scope (ii) The meaning of a choice of court agreement: material scope
      - (iii) The meaning of a choice of court agreement: personal scope (iii) The meaning of a choice of court agreement: personal scope
      - (iv) The meaning of a choice of court agreement: exclusive or otherwise (iv) The meaning of a choice of court agreement: exclusive or otherwise
      - (v) The meaning of a choice of court agreement: the nature of interpretation (v) The meaning of a choice of court agreement: the nature of interpretation
      - (vi) The validity of a choice of court agreement in a contract whose validity is impugned (vi) The validity of a choice of court agreement in a contract whose validity is impugned
      - (vii) The validity of a choice of court agreement: invalidity of the agreement itself (vii) The validity of a choice of court agreement: invalidity of the agreement itself
      - (viii) The nature of choice of court agreements in the common law system (viii) The nature of choice of court agreements in the common law system
      - (ix) Consequences of breach of choice of court agreement (ix) Consequences of breach of choice of court agreement
    - (b) Jurisdiction agreements under the former Brussels/Lugano scheme (b) Jurisdiction agreements under the former Brussels/Lugano scheme
    - (c) The 2005 Hague Convention on Choice of Court Agreements (c) The 2005 Hague Convention on Choice of Court Agreements
  - (5) Jurisdiction over defendant present in England (I): jurisdiction by service as of right (5) Jurisdiction over defendant present in England (I): jurisdiction by service as of right
    - (a) The basis of jurisdiction at common law (a) The basis of jurisdiction at common law
      - (i) Service and jurisdiction; jurisdiction and service (i) Service and jurisdiction; jurisdiction and service
      - (ii) Common law jurisdiction resulting from service within the jurisdiction (ii) Common law jurisdiction resulting from service within the jurisdiction
    - (b) Responding to service by making no objection to the jurisdiction (b) Responding to service by making no objection to the jurisdiction
    - (c) Responding to service by contending that the court has no jurisdiction (c) Responding to service by contending that the court has no jurisdiction
    - (d) Mechanism for challenging the jurisdiction resulting from service (d) Mechanism for challenging the jurisdiction resulting from service
  - (6) Jurisdiction over defendant present in England (II): disputing the exercise of jurisdiction based on service as of right (6) Jurisdiction over defendant present in England (II): disputing the exercise of jurisdiction based on service as of right
    - (a) Stay of proceedings: forum non conveniens, and forum non consentiens (a) Stay of proceedings: forum non conveniens, and forum non consentiens
      - (i) Admissibility of plea of forum non conveniens (i) Admissibility of plea of forum non conveniens
      - (ii) Structure of analysis of plea of forum non conveniens (ii) Structure of analysis of plea of forum non conveniens
      - (iii) First limb of the Spiliada enquiry (iii) First limb of the Spiliada enquiry
      - (iv) Second limb of the Spiliada enquiry (iv) Second limb of the Spiliada enquiry
      - (v) Conclusion of the Spiliada enquiry (v) Conclusion of the Spiliada enquiry
      - (vi) An alternative approach to a plea of forum non conveniens (vi) An alternative approach to a plea of forum non conveniens
    - (b) Stay of proceedings on the ground of forum non consentiens (b) Stay of proceedings on the ground of forum non consentiens
      - (i) English proceedings brought contrary to arbitration agreement (i) English proceedings brought contrary to arbitration agreement
      - (ii) English proceedings brought contrary to choice of court agreement to which 2005 Hague Convention applies (ii) English proceedings brought contrary to choice of court agreement to which 2005 Hague Convention applies
      - (iii) English proceedings brought in breach of choice of court agreement to which 2005 Hague Convention does not apply (iii) English proceedings brought in breach of choice of court agreement to which 2005 Hague Convention does not apply
    - (c) Stay imposed as matter of case management (c) Stay imposed as matter of case management
  - (7) Jurisdiction over defendant not present in England (I): when jurisdiction does not depend on permission to serve defendant out of the jurisdiction (7) Jurisdiction over defendant not present in England (I): when jurisdiction does not depend on permission to serve defendant out of the jurisdiction
    - (a) Claims involving consumers and employees (a) Claims involving consumers and employees
      - (i) The context in which these provisions apply (i) The context in which these provisions apply
      - (ii) The definition of a consumer for the purposes of these provisions (ii) The definition of a consumer for the purposes of these provisions
      - (iii) The identification of a contract as a consumer contract (iii) The identification of a contract as a consumer contract
      - (iv) Proceedings that relate to a consumer contract (iv) Proceedings that relate to a consumer contract
      - (v) The applicable rules of jurisdiction (v) The applicable rules of jurisdiction
      - (vi) The definition of employee for the purposes of these provisions (vi) The definition of employee for the purposes of these provisions
      - (vii) The definition of the contract as one of individual employment (vii) The definition of the contract as one of individual employment
      - (viii) Proceedings that relate to a contract of employment (viii) Proceedings that relate to a contract of employment
      - (ix) The applicable rules of jurisdiction (ix) The applicable rules of jurisdiction
      - (x) The nature of jurisdiction created under Section 15A (x) The nature of jurisdiction created under Section 15A
    - (b) Claims covered by choice of court agreement for the English court (b) Claims covered by choice of court agreement for the English court
      - (i) English choice of court agreements within the 2005 Hague Convention (i) English choice of court agreements within the 2005 Hague Convention
      - (ii) General conditions for the 2005 Convention to apply to the agreement (ii) General conditions for the 2005 Convention to apply to the agreement
      - (iii) Exclusive choice of court agreements (iii) Exclusive choice of court agreements
      - (iv) Creation or recording of exclusive choice of court agreement (iv) Creation or recording of exclusive choice of court agreement
      - (v) Interpretation and validity of exclusive choice of court agreement (v) Interpretation and validity of exclusive choice of court agreement
      - (vi) English choice of court agreements and the Hague Convention: summary (vi) English choice of court agreements and the Hague Convention: summary
      - (vii) English choice of court agreements outside the 2005 Hague Convention (vii) English choice of court agreements outside the 2005 Hague Convention
    - (c) Other cases in which the court has jurisdiction despite the absence of the defendant (c) Other cases in which the court has jurisdiction despite the absence of the defendant
  - (8) Jurisdiction over defendant not present in England (II): when jurisdiction depends on permission to serve defendant out of the jurisdiction: general structure (8) Jurisdiction over defendant not present in England (II): when jurisdiction depends on permission to serve defendant out of the jurisdiction: general structure
    - (a) Procedure and general outline (a) Procedure and general outline
      - (i) Jurisdictional grounds or gateways (i) Jurisdictional grounds or gateways
      - (ii) The proper place to bring the claim (ii) The proper place to bring the claim
      - (iii) Merits of claim sufficient to avoid being struck out summarily (iii) Merits of claim sufficient to avoid being struck out summarily
    - (b) Shepherding the claim through the gateway (b) Shepherding the claim through the gateway
      - (i) The statutory gateways to jurisdiction (i) The statutory gateways to jurisdiction
      - (ii) Satisfying the conditions of the gateway rule: the good arguable case test (ii) Satisfying the conditions of the gateway rule: the good arguable case test
      - (iii) Interpreting the gateway rules: legal meaning (iii) Interpreting the gateway rules: legal meaning
      - (iv) Stricter or laxer interpretation of the gateway rules (iv) Stricter or laxer interpretation of the gateway rules
      - (v) Utility of the gateway requirement? (v) Utility of the gateway requirement?
    - (c) The strength of connection to England (c) The strength of connection to England
    - (d) The merits of the substantive claim (d) The merits of the substantive claim
  - (9) Jurisdiction over defendant not present in England (III): when jurisdiction depends on permission to serve defendant out of the jurisdiction: the 38 gateways (9) Jurisdiction over defendant not present in England (III): when jurisdiction depends on permission to serve defendant out of the jurisdiction: the 38 gateways
    - (a) Claims concerning general issues in litigation (a) Claims concerning general issues in litigation
      - (i) Paragraph (1): claims against English domiciliaries (i) Paragraph (1): claims against English domiciliaries
      - (ii) Paragraph (1A): claims arising from English branches or agencies, &c (ii) Paragraph (1A): claims arising from English branches or agencies, &c
      - (iii) Paragraph (2): injunctions (iii) Paragraph (2): injunctions
      - (iv) Paragraph (3): necessary or proper parties to the claim (iv) Paragraph (3): necessary or proper parties to the claim
      - (v) Paragraph (4): Part 20 claims (necessary or proper party to the defence) (v) Paragraph (4): Part 20 claims (necessary or proper party to the defence)
      - (vi) Paragraph (4A): necessary or proper further claims (vi) Paragraph (4A): necessary or proper further claims
      - (vii) Paragraph (5): interim remedies (vii) Paragraph (5): interim remedies
      - (viii) Paragraph (16A): declarations of non-liability (viii) Paragraph (16A): declarations of non-liability
      - (ix) Paragraph (18): third-party costs orders (ix) Paragraph (18): third-party costs orders
      - (x) Paragraph (24): Contempt applications (x) Paragraph (24): Contempt applications
      - (xi) Paragraph (25): Information orders against non-parties (xi) Paragraph (25): Information orders against non-parties
    - (b) Claims concerning contracts (b) Claims concerning contracts
      - (i) Paragraph (6): a contract (i) Paragraph (6): a contract
      - (ii) Paragraph (6): the link between the contract and England (ii) Paragraph (6): the link between the contract and England
      - (iii) Paragraph (6): the nature of the claim (iii) Paragraph (6): the nature of the claim
      - (iv) Paragraph (8): claims which deny the contract (iv) Paragraph (8): claims which deny the contract
      - (v) Paragraph (7): claims in respect of a breach of contract (v) Paragraph (7): claims in respect of a breach of contract
      - (vi) Paragraph (8A): aiding and abetting the breaking of contract (vi) Paragraph (8A): aiding and abetting the breaking of contract
    - (c) Claims concerning torts, confidence, and misuse of private information (c) Claims concerning torts, confidence, and misuse of private information
      - (i) Paragraph (9): a claim made in tort (i) Paragraph (9): a claim made in tort
      - (ii) Paragraph (9): defamation (ii) Paragraph (9): defamation
      - (iii) Paragraph (9)(a): damage sustained within the jurisdiction (iii) Paragraph (9)(a): damage sustained within the jurisdiction
      - (iv) Paragraph (9)(b): an act committed within the jurisdiction (iv) Paragraph (9)(b): an act committed within the jurisdiction
      - (v) Paragraph (9): claim governed by law of England and Wales (v) Paragraph (9): claim governed by law of England and Wales
      - (vi) The proper place requirement in the context of claims made in tort (vi) The proper place requirement in the context of claims made in tort
      - (vii) Paragraphs (21) to (23): breach of confidence and misuse of private information (vii) Paragraphs (21) to (23): breach of confidence and misuse of private information
    - (d) Claims about property, trusts, and estates (d) Claims about property, trusts, and estates
      - (i) Paragraph (11): claims about property within the jurisdiction (i) Paragraph (11): claims about property within the jurisdiction
      - (ii) Paragraphs (12) to (15A): a trust (ii) Paragraphs (12) to (15A): a trust
      - (iii) Paragraph (12): claims in respect of a trust governed by English law (iii) Paragraph (12): claims in respect of a trust governed by English law
      - (iv) Paragraph (12A): trusts with English jurisdiction clauses (iv) Paragraph (12A): trusts with English jurisdiction clauses
      - (v) Paragraph (12B): trusts designating England as place of administration (v) Paragraph (12B): trusts designating England as place of administration
      - (vi) Paragraph (12C): trusts created in England (vi) Paragraph (12C): trusts created in England
      - (vii) Paragraph (12D): declarations that no trust has arisen (vii) Paragraph (12D): declarations that no trust has arisen
      - (viii) Paragraph (12E): breach of trust within the jurisdiction (viii) Paragraph (12E): breach of trust within the jurisdiction
      - (ix) Paragraph (15): claim against trustee of constructive or resulting trust (ix) Paragraph (15): claim against trustee of constructive or resulting trust
      - (x) Paragraph (15A): aiding and abetting a breach of trust (x) Paragraph (15A): aiding and abetting a breach of trust
      - (xi) Paragraphs (13) and (14): administration, probate, and wills (xi) Paragraphs (13) and (14): administration, probate, and wills
    - (e) Claims about breach of fiduciary duty (e) Claims about breach of fiduciary duty
      - (i) Paragraph (15B): claim for breach of fiduciary duty (i) Paragraph (15B): claim for breach of fiduciary duty
      - (ii) Paragraph (15C): aiding and abetting a breach of fiduciary duty (ii) Paragraph (15C): aiding and abetting a breach of fiduciary duty
      - (iii) Paragraph (15D): declarations that no fiduciary duty has arisen (iii) Paragraph (15D): declarations that no fiduciary duty has arisen
    - (f) Claims for restitution (f) Claims for restitution
    - (g) Claims about enforcement of judgments and awards (g) Claims about enforcement of judgments and awards
    - (h) Claims arising under various statutes (h) Claims arising under various statutes
  - (10) Jurisdiction over defendant not present in England (IV): disputing the grant of permission to serve defendant out of the jurisdiction (10) Jurisdiction over defendant not present in England (IV): disputing the grant of permission to serve defendant out of the jurisdiction
  - (11) Section 16; and jurisdiction within the United Kingdom (11) Section 16; and jurisdiction within the United Kingdom
    - (a) Jurisdiction within the United Kingdom in civil and commercial matters (a) Jurisdiction within the United Kingdom in civil and commercial matters
    - (b) Jurisdiction within the United Kingdom not in civil and commercial matters (b) Jurisdiction within the United Kingdom not in civil and commercial matters
  - (12) Law reform (12) Law reform
    - (a) The current position, in outline (a) The current position, in outline
    - (b) Where might we look, and what might be found there? (b) Where might we look, and what might be found there?
    - (c) The law (c) The law
    - (d) Procedure (d) Procedure
- Notes
- Notes
4 Ancillary Measures
- Notes
- Notes
5 Foreign Judgments
- Notes
- Notes
6 Contractual Obligations
- Notes
- Notes
7 Non-Contractual Obligations
- Notes
- Notes
8 Property
- Notes
- Notes
9 Corporations
- Notes
- Notes
10 Adults
- Notes
- Notes
11 Children
- Notes
- Notes
12 Arbitration
- Notes
- Notes
- Index
  - Notes
  - Notes

Chapter

3 Jurisdiction

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https://doi.org/10.1093/law/9780192868145.003.0003

Pages

129–272

Published:

March 2023

Abstract

This chapter examines and explains the rules which determine whether a court in England and Wales has jurisdiction, may have jurisdiction yet not exercise it, or does not have jurisdiction. The point of departure is to examine the various meanings of jurisdiction. It explains that a defendant served within the jurisdiction may be sued in England unless the court lacks jurisdiction over the subject matter (foreign land and patents), or because an international convention removes the jurisdiction of the court; and even if the court has jurisdiction, the plea of forum non conveniens may be made by a defendant to request that the jurisdiction not be exercised. A defendant who is overseas may be served with process as a matter of right, but in most cases, service out will require the prior permission of the court which is, as to its existence and its exercise, governed by rules of great and regrettable complexity. Separate attention is given to the multi-faceted law on choice of court agreements, as a matter of common law as well as under the 2005 Hague Convention on Choice of Court Agreements.

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Contents

3 Jurisdiction

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