(Oral judgment, Millett LJ) The question was whether it is a proper exercise of discretion to refuse to make an order for the production of documents at an interlocutory hearing on the sole ground that they are wanted in order to establish the jurisdiction of the Court.
Held: Jurisdiction depended on whether one defendant was domiciled in England, for purposes of the Lugano Convention, at the time when the writ had been served on certain other defendants. That in turn raised the question of the standard to be applied in determining that issue.
Waller LJ explored the development of the law, and said: ‘It is I believe important to recognise, as the language of their Lordships in Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 demonstrated, that what the court is endeavouring to do is to find a concept not capable of very precise definition which reflects that the plaintiff must properly satisfy the court that it is right for the court to take jurisdiction. That may involve in some cases considering matters which go both to jurisdiction and to the very matter to be argued at the trial, eg the existence of a contract, but in other cases a matter which goes purely to jurisdiction, eg the domicile of the defendant. The concept also reflects that the question before the court is one which should be decided on affidavits from both sides and without full discovery and/or cross-examination, and in relation to which therefore to apply the language of the civil burden of proof applicable to issues after full trial is inapposite. Although there is power under Ord 12, r 8(5) to order a preliminary issue on jurisdiction, as Staughton LJ pointed out in Attock Cement Co Ltd v Romanian Bank for Foreign Trade [1989] 1 WLR 1147, 1156D, it is seldom that the power is used because trials on jurisdiction issues are to be strongly discouraged. It is also important to remember that the phrase which reflects the concept ‘good arguable case’ as the other phrases in Korner’s case ‘a strong argument’ and ‘a case for strong argument’ were originally employed in relation to points which related to jurisdiction but which might also be argued about at the trial. The court in such cases must be concerned not even to appear to express some concluded view as to the merits, eg as to whether the contract existed or not. It is also right to remember that the ‘good arguable case’ test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a ‘trial’. ‘Good arguable case’ reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, ie of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.’
Judges:
Nourse LJ, Millett LJ, Ward LJ
Citations:
[1997] EWCA Civ 1545, [1997] 1 WLR 1582, [1997] CLC 1083, [1998] ILPr 30
Links:
Jurisdiction:
England and Wales
Cited by:
See Also – Canada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
See Also – The Canada Trust Co and Others v Stolzenberg and Others ChD 10-Nov-1997
A foreign resident defendant failing to comply with an order for discovery should be barred from defending after having been given notice. . .
See Also – Canada Trust Co and Others v Stolzenberg and Others (No 4) CA 14-May-1998
When appealing against fully argued refusal of jurisdiction, parties may not bring in additional evidence at that appeal save in exceptional circumstances. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 19 October 2022; Ref: scu.141941