Category Archives: Jurisdiction

Knauf UK GmbH -v- British Gypsum Ltd and Another; CA 24-Oct-2001

Permission was sought to use alternative service to serve proceedings on a company. There was no exceptional difficulty in ordinary service, but the claimant wanted to ensure that a claim was heard within the UK jurisdiction, and expected that he would have to serve the proceedings by surprise in order to prevent them first issuing in Germany.
Held: This was an inappropriate attempt to misuse the court rules in order to subvert the ordinary rules regulating such matters. The order for alternative service was set aside.

Court: CA
Date: 24-Oct-2001
Judges: Lord Justice Henry, Lord Justice Robert Walker and Lord Justice Rix
Statutes: Civil Jurisdiction and Judgments Act 1982
Links: Bailii,
References: Times, 15-Nov-2001, [2001] EWCA Civ 1570, [2002] 1 WLR 907
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Filed under Jurisdiction, Litigation Practice

Dornoch Ltd and others -v- The Mauritius Union Assurance Company Ltd and Another; ComC 19-Aug-2005

Court: ComC
Date: 19-Aug-2005
Judges: Aikens J
Links: Bailii,
References: [2005] EWHC 1887 (Comm), [2006] Lloyd's Rep IR 127
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Filed under Insurance, Jurisdiction

Reunion Europeenne Sa and Others -v- Spliethoffs Bevrachtingskantoor Bv and Another; ECJ 27-Oct-1998

French consignees of a shipment of peaches sued in France the Australian issuers of the bill of laiding under which the goods were carried (a contract claim) and the Dutch carriers and master of the ship in which they were carried (tort claims).
Held: There was no jurisdiction under Article 6(1) because none of the defendants were domiciled in France. After referring to Kalfelis: ‘It follows that two claims in one action for compensation directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected.’
Europa An action by which the consignee of goods found to be damaged on completion of a transport operation by sea and then by land, or by which his insurer who has been subrogated to his rights after compensating him, seeks redress for the damage suffered, relying on the bill of lading covering the maritime transport, not against the person who issued that document on his headed paper but against the person whom the plaintiff considers to be the actual maritime carrier, does not fall within the scope of matters relating to a contract within the meaning of Article 5, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, since the bill of lading in question does not disclose any contractual relationship freely entered into between the consignee and the defendant. Such an action is, however, a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point 3, of that Convention, since that concept covers all actions which seek to establish the liability of a defendant and are not related to matters of contract within the meaning of Article 5, point 1. As regards determining the `place where the harmful event occurred’ within the meaning of Article 5, point 3, the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him cannot serve to determine that place. Whilst it is true that the abovementioned concept may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier was to deliver the goods. Article 6, point 1, of the Convention of 27 September 1968 must be interpreted as meaning that a defendant domiciled in a Contracting State cannot, on the basis of that provision, be sued in another Contracting State before a court seised of an action against a co-defendant not domiciled in a Contracting State on the ground that the dispute is indivisible rather than merely displaying a connection. The objective of legal certainty pursued by the Convention would not be attained if the fact that a court in a Contracting State had accepted jurisdiction as regards one of the defendants not domiciled in a Contracting State made it possible to bring another defendant, domiciled in a Contracting State, before that same court in cases other than those envisaged by the Convention, thereby depriving him of the benefit of the protective rules laid down by it.

Court: ECJ
Date: 27-Oct-1998
Statutes: Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968
Links: Times, Bailii,
References: C-51/97, [1998] ECR I-6511, [1998] EUECJ C-51/97
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Filed under European, Jurisdiction, Transport

BAS Capital Funding Corporation, Deutsche Bank Ag London, Paine Webber Capital Inc, PW Exe Lp, Pw Partners 1999 Lp -v- Medfinco Limited, Abacus Holdings Limited, Andreas W Gerdes, HTC Inc, etc; ChD 25-Jul-2003

The claimants wanted to bring actions in respect of various matters under shareholders agreements in complex international joint ventures. Leave was given to serve English proceedings in Malta, and the claim form and particulars of claim were faxed and emailed and delivered by hand at the registered offices of the company and at the private address of the owner and a director of the company. All these methods were ineffective as service under English law or Maltese law. The defendants challenged the jurisdiction of the English court, referring to an exclusive jurisdiction clause. Proceedings had been begun in Malta. The respondents denied that serious and grave matters had been alleged so as to bring into play section 402.
Held: The court set aside the order granting permission to serve the defendants out of the jurisdiction, except in relation to the alleged breach by the Company of the funding limits, and refused to grant the injunctions either in the wide form originally sought, or in the modified form suggested in correspondence.

Court: ChD
Date: 25-Jul-2003
Judges: Lawrence Collins J
Statutes: Companies Act 1985 402
Links: Bailii,
References: [2003] EWHC 1798 (Ch), [2004] 1 Lloyd's Rep 652
Cases Cited:

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Filed under Company, Jurisdiction

Guaranty Trust Co of New York -v- Hannay & Co; CA 1915

A claimant does not need to have a subsisting cause of action against a defendant before the court will grant a claimant a declaration. The court considered the ambiguity in the meaning of the word ‘jurisdiction’: ‘The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.’ An unsuccessful attack was mounted on the vires of Ord 25 r 5.
Pickford LJ said: ‘I think therefore that the effect of the rule is to give a general power to make a declaration whether there be a cause of action or not, and at the instance of any party who is interested in the subject matter of the declaration.’ and ‘The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject-matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that, although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.’
Bankes LJ: ‘It is essential, however, that a person who seeks to take advantage of the rule must be claiming relief. What is meant by this word relief? When once it is established, as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning. There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as possible.’

Court: CA
Date: 01-Jan-1915
Judges: Pickford LJ, Bankes LJ
References: [1915] 2 KB 536,
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Assaubayev and Others -v- Michael Wilson & Partners, Ltd; QBD 21-Mar-2014

Court: QBD
Date: 21-Mar-2014
Judges: Walker J
Links: Bailii,
References: [2014] EWHC 821 (QB),

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Filed under Arbitration, Costs, Jurisdiction

de Dampierre -v- de Dampierre; HL 1988

The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition is if the court, as Lord Goff said, ‘is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice.’

Court: HL
Date: 01-Jan-1988
Judges: Lord Goff
References: [1988] 1 AC 92,
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Smith and Others -v- The Ministry of Defence; SC 19-Jun-2013

The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the soldiers had been found to be outwith the jurisdiction, and by the respondent that it owed a duty of care within a battlefield situation.
Held: The soldiers were within the jurisdiction, and the duty of care was owed. The cases could proceed to trial.

Court: SC
Date: 19-Jun-2013
Judges: Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Carnwath
Statutes: European Convention on Human Rights 2, Armed Forces Act 2006 367(1)
Links: Bailii, Bailii Summary, SC, SC Summary, WLRD,
References: [2013] UKSC 41, [2013] WLR(D) 239, [2014] AC 52, [2013] 4 All ER 794, [2014] 1 AC 52, [2013] 3 WLR 69, [2013] HRLR 27, [2014] PIQR P2
Cases Cited:

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In re The Alexandros T; SC 6-Nov-2013

The appeal depends upon whether the Court is bound to stay action 2006 Folio 815 (‘the 2006 proceedings’) under Article 27 of Regulation 44/2001 of the Council of the European Union (‘the Regulation’) and, if not, whether it should do so under Article 28.

Court: SC
Date: 06-Nov-2013
Judges: Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hughes
Links: Bailii,
References: [2013] UKSC 70,

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Filed under European, Jurisdiction

Channel Tunnel Group Ltd and Another -v- Balfour Beatty Construction Ltd and Others; CA 1-Apr-1992

The arbitration agreement specified that disputes were to be arbitrated in Brussels, therefore there was no jurisdiction in an English court.

Court: CA
Date: 01-Apr-1992
Statutes: Arbitration Act 1950 12 (6) (h)
Links: Gazette,
References:
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Blue Tropic Ltd and Another -v- Chkhartishvili; ChD 7-Jul-2014

The court was asked to decline jurisdiction pending the outcome of related proceedings between the parties abroad.

Court: ChD
Date: 07-Jul-2014
Judges: Newey J
Links: Bailii,
References: [2014] EWHC 2243 (Ch),

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Coys of Kensington Automobiles Ltd -v- Pugliese; QBD 22-Mar-2011

Appeal against rejection of jurisdiction over defendant.

Court: QBD
Date: 22-Mar-2011
Judges: Ramsey J
Links: Bailii,
References: [2011] EWHC 655 (QB), [2011] 2 All ER (Comm) 664

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Filed under Contract, Jurisdiction

Hirsi Jamaa -v- Italy; ECHR 23-Feb-2012

The court was asked whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag.
Held: The court need not concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached.

Court: ECHR
Date: 23-Feb-2012
Statutes: European Convention on Human Rights
Links: Bailii,
References: 27765/09 - HEJUD, [2012] ECHR 1845
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Filed under Human Rights, Immigration, Jurisdiction

Al-Skeini and Others -v- The United Kingdom; ECHR 7-Jul-2011

(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. The Chamber divided the general principles relevant to jurisdiction into three distinct categories: state agent authority and control; effective control over an area; and the Convention legal space.

Court: ECHR
Date: 07-Jul-2011
Judges: Jean-Paul Costa, P
Statutes: European Convention on Human Rights
Links: Bailii,
References: 55721/07, [2011] ECHR 1093, 30 BHRC 561, (2011) 53 EHRR 18
Cases Cited:
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Scottish & Newcastle International Limited -v- Othon Ghalanos Ltd; HL 20-Feb-2008

The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have jurisdiction of the cargo was ‘delivered’ in England.
Held: The cargo was delivered on being shipped, and the English court had jurisdiction. This was clear under section 32 of the 1979 Act.

Court: HL
Date: 20-Feb-2008
Judges: Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Neuberger of Abbotsbury
Statutes: Council Regulation (EC) No 44/2001 5(1)(b), Sale of Goods Act 1979 32(1)
Links: Bailii,
References: [2008] UKHL 11,
Cases Cited:

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Citicorp International Ltd -v- Shiv-Vani Oil & Gas Exploration Services Ltd; ComC 11-Feb-2014

Application by claimant for summary judgment, and by defendant for order as to place of trial.

Court: ComC
Date: 11-Feb-2014
Judges: Andrew Smith J
Links: Bailii,
References: [2014] EWHC 245 (Comm),

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OTP Bank Nyilvanosan MUKODO Reszvenytarsasag -v- Hochtief Solutions AG; ECJ 17-Oct-2013

Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Special jurisdiction – Article 5, paragraph 1 a) – Concept of ‘contractual matters

Court: ECJ
Date: 17-Oct-2013
Judges: G. Arestis P
Links: Bailii,
References: C-519/12, [2013] EUECJ C-519/12

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Filed under European, Jurisdiction

Re MN (Recognition and Enforcement of Foreign Protective Measures); FD 2010

An elderly woman, MN, habitually resident in California, had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.
Held: Hedley J said: “It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence . . It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal ‘wrongful’, I would hold that MN was habitually resident in California
If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration.”

Court: FD
Date: 01-Jan-2010
Judges: Hedley J
References: [2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893
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Filed under Family, Jurisdiction

AMT Futures Ltd -v- Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft Mbh; ComC 11-Apr-2014

Application by the Defendant for a declaration that the court did not have jurisdiction over it in respect of the subject matter of the claim and for an order setting aside service of the Claim Form.

Court: ComC
Date: 11-Apr-2014
Judges: Popplewell J
Links: Bailii,
References: [2014] EWHC 1085 (Comm),

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Med Marine -v- Castillo Schiffahrts-Gmbh & Co Kg Ms and Another; ComC 28-Mar-2014

Defendants’ application pursuant to CPR Part 11 for orders that (1) the defendants’ application contesting the jurisdiction of this court is granted; (2) the service of the claim form on the defendant is set aside, and (3) the claimant’s claim is dismissed.

Court: ComC
Date: 28-Mar-2014
Judges: Hofmeyr QC
Links: Bailii,
References: [2014] EWHC 1064 (Comm),

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