Defendant’s application under CPR Part 11 for a declaration that the court has no jurisdiction to try the claimant’s claim for a so-called ‘internet injunction’.
[2021] EWHC 2006 (QB)
Bailii
England and Wales
Updated: 30 July 2021; Ref: scu.666146
ECJ The way in which article 17 of the Convention of 27 September 1968 is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the jurisdiction determined by the general principle laid down in article 2 and the special jurisdictions provided for in articles 5 and 6 of that convention. In view of the consequences that such an option may have on the position of the parties to the action, the requirements set out in article 17 governing the validity of clauses conferring jurisdiction must be strictly construed.
By making the validity of clauses conferring jurisdiction subject to the existence of an ‘ agreement ‘ between the parties, article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of a consensus between the parties, which must be clearly and precisely demonstrated, for the purpose of the formal requirements imposed by article 17 is to ensure that the consensus between the parties is in fact established.
In the case of a clause conferring jurisdiction, which is included among the general conditions of sale of one of the parties, printed on the back of the contract, the requirement of a writing under the first paragraph of article 17 of the convention of 27 september 1968 is only fulfilled if the contract signed by the two parties includes an express reference to those general conditions.
In the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of article 17 of the convention of 27 september 1968 is satisfied only if the reference is express and can therefore be checked by a party exercising reasonable care.
C-24/76, R-24/76, [1976] EUECJ R-24/76, [1976] ECR 1831
Bailii
Convention of 27 September 1968 on jurisdiction and the enforcement of Judgments in Civil and Commercial Matters
European
Cited by:
Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Cited – Goldman Sachs International v Novo Banco SA SC 4-Jul-2018
A banking facility was provided under a contract applying English law and jurisdiction. The parties now disputed whether on an assignment the dispute was to be resolved under Portuguese law.
Held: Recognition in the United Kingdom of measures . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.214510
Mr Justice Henshaw
[2020] EWHC 2979 (Comm)
Bailii
England and Wales
Updated: 21 July 2021; Ref: scu.657586
The defendant denied the court’s jurisdiction over it.
[2011] EWHC 339 (Comm), [2011] 2 Lloyd’s Rep 215
Bailii
England and Wales
Updated: 20 July 2021; Ref: scu.440888
Defendants challenged the jurisdiction of the court over them.
Mr Justice Zacaroli
[2021] EWHC 1892 (Ch)
Bailii
England and Wales
Updated: 17 July 2021; Ref: scu.663851
Application for interim an interim anti-suit injunction
Mr Justice Foxton
[2020] EWHC 2483 (Comm), [2020] 2 Lloyd’s Rep 591
Bailii
England and Wales
Updated: 13 July 2021; Ref: scu.657551
‘in which jurisdiction should the issues relating to aspects of the welfare of the two children be determined?’
[2012] EWHC 2877 (Fam)
Bailii
England and Wales
Updated: 12 July 2021; Ref: scu.469803
The defendants sought to set aside an order allowing service out of the jurisdiction pleading forum non conveniens.
Hamblen J
[2010] EWHC 641 (Comm)
Bailii
England and Wales
Cited by:
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
These lists may be incomplete.
Updated: 05 July 2021; Ref: scu.406553
The defendant challenged the court’s jurisdiction.
Cresswell J
[1998] EWHC 1210 (Comm), [1998] CLC 1072, [1999] Lloyd’s Rep IR 229
Bailii
England and Wales
Updated: 05 July 2021; Ref: scu.442005
Mr Justice Andrew Baker
[2020] EWHC 2904 (Comm)
Bailii, Bailii Order
England and Wales
Updated: 04 July 2021; Ref: scu.657590
Defendant’s application for a stay of proceedings on the basis that the Court does not have jurisdiction.
[2014] NIQB 112
Bailii
Northern Ireland
Updated: 03 July 2021; Ref: scu.542777
Section 44 could be used in a patent contract dispute even though the patent at issue was governed by the law of a foreign state which would not itself have applied that section.
[1993] FSR 567
Patents Act 1977 44
England and Wales
Cited by:
See Also – Chiron Corporation v Organon Teknika Ltd; Same v Murex Diagnostics (No 7) ChD 17-Feb-1994
The issue of loss in a prior patent challenge is res judicata in later proceedings despite the presence of experimental difficulties leading to ipossibly severe time limits. A patent applicant has no duty to inform the Patent Office of matters . .
See Also – Chiron Corporation and Others v Murex Diagnostics Ltd CA 14-Oct-1994
ECJ judgments make a UK court functus officio only after their full judgment has been delivered. Where judgment had already been given, it was no longer possible for the defendant in an action to seek a reference to the European Court on refusal of . .
See Also – Chiron Corporation and Others v Murex Diagnostics Ltd (No 11) ChD 15-Mar-1996
A large interim award of damages can be proper if it is less than the likely damages which would be awarded at trial despite their remaining outstanding issues of fact to be decided. . .
These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.450168
Order for lift of stay on proceedings and that court has jurisdiction.
[2021] EWHC 1111 (QB)
Bailii
England and Wales
Updated: 20 June 2021; Ref: scu.662424
Location of company’s centre of main interests of company business – UK or Malta.
Miles J
[2021] EWHC 1523 (Ch)
Bailii
England and Wales
Updated: 20 June 2021; Ref: scu.663227
[2008] EWCA Civ 316
Bailii
England and Wales
Updated: 16 June 2021; Ref: scu.270513
Applications by three groups of Defendants challenging the jurisdiction of the court.
Mr Justice Butcher
[2020] EWHC 1315 (Comm)
Bailii
England and Wales
Updated: 16 June 2021; Ref: scu.651166
The Claimant Reinsurers contended that proceedings brought against them in South Africa by the Defendants had been brought there in breach of an agreement or agreements between them that the Courts of England and Wales should have exclusive jurisdiction.
[2021] EWHC 861 (Comm)
Bailii
England and Wales
Updated: 15 June 2021; Ref: scu.662355
Claim following fatal crash of helicopter in Brazil.
Waksman J
[2020] EWHC 1348 (Comm), [2020] WLR(D) 342
Bailii, WLRD
Parliament and Council Regulation (EU) No 1215/2012 art 8(1
England and Wales
Updated: 14 June 2021; Ref: scu.652424
Application challenging the jurisdiction of the court
Mr Justice Butcher
[2021] EWHC 952 (Comm)
Bailii
England and Wales
Updated: 09 June 2021; Ref: scu.662359
The court held that the double actionability test could be relaxed to the extent that it was sufficient if the act was wrongful in the country where it was committed, even though any damage would not have been actionable in civil proceedings there.
[1897] 2 QB 231
England and Wales
Cited by:
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.242986
There can be little basis for the grant of relief to a landowner providing protection from an action in nuisance if the landowner will not himself remedy the public nuisance. The House considered whether the circumstances gave the court power to grant an injunction at all, and stated certain basic principles governing the grant of an injunction. The first was that the power to grant an injunction was statutory (s. 37 of the 1981 Act). The third related to injunctions to restore proceedings in a foreign court, with which we are not concerned. The second was this: ‘The second basic principle is that, although the terms of section 37 (1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. The nature of the limitations to which the power is subject has been considered in a number of recent cases in your Lordships’ House ‘
Lord Brandon of Oakbrook: ‘. . . The effect of these authorities, so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable.’ The House would not define unconscionable conduct save that it included conduct which is oppressive or vexatious or which interferes with the due process of the court.’
Lord Goff of Chieveley: ‘I am reluctant to accept the proposition that the power of the court to grant injunctions is restricted to certain exclusive categories. That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available.’
References: [1987] AC 24, [1986] 3 WLR 398, [1986] 3 A11 ER 487, [1986] 2 Lloyds Rep 317
Judges: Lord Brandon of Oakbrook, Lord Goff of Chieveley, Lord Mackay of Clashfern
Statutes: Supreme Court Act 1981 37
Jurisdiction: England and Wales
This case cites:
This case is cited by:
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192161
References: [2005] EWHC 1242 (Comm)
Links: Bailii
Judges: Colman J
Jurisdiction: England and Wales
Last Update: 25 October 2020; Ref: scu.228017
References: [1996] EWCA Civ 965
Links: Bailii
Jurisdiction: England and Wales
This case cites:
This case is cited by:
These lists may be incomplete.
Last Update: 04 October 2020; Ref: scu.140832
The appellant challenged an anti-suit injunction granted to the bank to prevent it pursuing litigation in Texas when the bank issued proceedings here.
Held: The appeal succeeded. The clause under which the request for the injunction was brought was a non-exclusive jurisdiction clause and as such could not be used to base such an injunction. The foreign proceedings were not abusive and should be allowed to proceed.
References: [2009] EWCA Civ 725, Times 15-Oct-2009, [2010] 1 WLR 1023, [2009] CP Rep 45, [2009] 2 Lloyd’s Rep 617, [2009] 2 All ER (Comm) 987, [2009] 2 CLC 45
Links: Bailii
Judges: Lord Justice Carnwath, Lord Justice Toulson and Lord Justice Goldring
Jurisdiction: England and Wales
Last Update: 22 September 2020; Ref: scu.347688
References: (1927) PCIJ Series A – No 10
Ratio: Jurisdiction is primarily territorial in both international and domestic law: ‘the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts ‘outside their territory’, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.’
This case is cited by:
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 11-Aug-17
Ref: 591914
References: Times 04-Apr-1994, [1994] 3 All ER 180
Coram: Steyn LJ, Peter Gibson LJ and Sir Tasker Watkins
Ratio: An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time when the English court becomes definitively seised of proceedings’. The ECJ in the Zelger case had ’emphasise[d] the importance of certainty in national procedural laws’, and that ‘a ‘date of service’ rule would be readily comprehensible not only in England but also in other Contracting States.’
Statutes: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 01-Sep-16
Ref: 84257
References: Ind Summary 26-Apr-1993
Ratio: England is the correct forum to discuss a company registered in England.
Last Update: 31-Aug-16
Ref: 82402
References: [2002] HCA 56
Links: Austlii
Ratio (High Court of Australia) The Court rejected a challenge, in the context of Internet libel, to the applicability of such established principles as that vouchsafed in Duke of Brunswick: ‘It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction. . . . A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it. And any person who gains access to the Internet does so by taking an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it. . . Comparisons can, as I have already exemplified, readily be made. If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage.’
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 26-Apr-16
Ref: 220028
References: [1989] 1 Lloyds Rep 47
Coram: Parker LJ
Where the decision as to forum depends upon the construction of the document or documents in one language and the rival courts are, on the one hand, courts whose native language is that of the document and on the other hand, courts whose native language is not that of the document, it is in the interests of the parties and the ends of justice that the true meaning should be ascertained and be decided by the courts whose native language is that of the document.
Parker LJ said: ‘In my view it would be unjust to the plaintiff to prevent him from proceeding in Courts where the result of his bargain would be to produce success and to force him to proceed in Courts where the result would or might be that the defendants escaped from their bargain.’
This case is cited by:
(This list may be incomplete)
Last Update: 05-Feb-16 Ref: 237272
References: [1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674
Links: Canlii
Coram: La Forest, Sopinka, Gonthier, Cory and McLachlin JJ
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’
This case is cited by:
(This list may be incomplete)
Last Update: 10-Nov-15 Ref: 228197
References: [1845] EngR 394, (1845) 13 M & W 628, (1845) 153 ER 262
Links: Commonlii
Coram: Parke B
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
This case is cited by:
References: [1861] EngR 711, (1861) 1 B & S 400, (1861) 121 ER 764
Links: Commonlii
Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.
References: [1834] 3 My & K 104, [1833] EngR 932, (1833) 6 Sim 356, (1833) 58 ER 628 (A)
Links: Commonlii
The court of appeal recognised its ability to restrain the commencement of proceedings in other courts and jurisdictions as to the same matter. The power was grounded not upon ‘any pretension to the exercise of judicial rights abroad’ but upon the fact that the party being restrained is subject to the in personam jurisdiction of the English court.
This case is cited by:
References: [1938] AC 485
Coram: Lord Atkin
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.’
This doctrine derives from the maxim par in parem non habet imperium, but also from ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states.
This case is cited by:
References: [2000] HCA 36, (2000) 203 CLR 503
Links: Austlii
(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of the Commonwealth of Australia.
This case is cited by:
References: [1993] HCA 19, (1993) 112 ALR 7, [1993] Aust Torts Reports 81-203, (1993) 17 MVR 1, (1993) 67 ALJR 343, [1993] 176 CLR 433
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gudron, McHugh JJ
(High Court of Australia) The court considered a claim for damages arising out of a motor accident in New South Wales, where the claim had been brought in the courts of Queensland. The questions arose as to whether or not a provision in the Motor Accidents Act 1988 of New South Wales which limited the amount of damages which could be recovered in respect of non-economic loss was a substantive rule to be applied as part of the lex causae.
Held: In relation to questions of the quantification of damage, anything beyond the ascertainment of the heads of liability is a procedural question, and thus referring to a New South Wales statute: ‘section 79 is plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that, as we have seen, is a matter governed solely by the lex fori.’
Mason CJ: ‘The law relating to damages is partly procedural and partly substantive. According to the traditional application of the substance-procedure distinction, the question whether legislative provisions dealing with awards of damages are substantive or procedural has been approached by asking whether the provisions affect the character of the wrong actionable or go only to the measure of compensation. This approach is consistent with the equation traditionally drawn between matters of procedure and matters relating to remedies.’
This case cites:
This case is cited by:
References: [2014] EWFC 35
Links: Bailii
Coram: Sir James Munby P FD
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’
Statutes: Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
This case cites:
References: [1844] EngR 95, (1843-1844) 6 Beav 1, (1844) 49 ER 724
Links: Commonlii
Discussion of the question whether a sovereign prince is liable to the jurisdiction of the Courts of a foreign country, in which he happens to he resident, and as to the liability to suit of one who unites in himself the characters both of an independent foreign sovereign and a subject.
A sovereign prince, resident in the dominions of another, is ordimarily exempt from the jurisdiction of the Courts there.
A foreign sovereign may sue in this country, both at law and in equity; and, if he sues in equity, he submits himself to the jurisdiction, and a cross-bill may be filed against him, which he must answer on oath ; but a foreign sovereign does not, by filing a bill in Chancery against A., making himself liable to be sued in that Court for an independent matter by B.
The King of Hanover, after his accession, renewed his oath of allegiance, to the Queen of England, and claimed the rights of an English peer. Held, that he was exempt from the jurisdiction of the English Courts for acts done by him as a soveregn prince, but was liable to be sued in those Courts in respect of matters done by him as a asubject. Held, also, that the sovereign character prevailed where the acts were done abroad, and also where it was doubtful in which of the two characters they had been done.
A foreign sovereign prince, who was also an English peer, was made a Defendant to a suit and served with a letter missive. The Lord Chancellor refused to recall it.
The Defendant then appeared, and filed a demurrer for want of jurisdiction. Held, first, that the Lord Chancellor had not decided that the Defendant was liable to the jurisdiction of the Court ; and, secondly, that the Defendant had not, by appearing, waived any defence to the bill.
This case is cited by:
(This list may be incomplete)
Last Update: 17-Feb-16 Ref: 304687
References: [1985] 1 Lloyd’s Rep 107
Coram: May LJ, Ackner LJ
May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.’
As to choice of jurisdiction by choice of law, May LJ considered BP v Hunt, saying that he would not go so far as Kerr J in saying that the fact that the contract was governed by English law was a predominating factor. That factor would have a different weight in different circumstances.
Ackner LJ observed that where exclusive reliance was placed on the contract being governed by English law, the burden of showing that there was good reason justifying service out of the jurisdiction was a particularly heavy one.
This case is cited by:
References: [1953] 1 QB 248
Coram: Devlin J
A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the approval of the UK Government, exercised their powers from London and in May 1940 they issued a decree which purported to have the effect of transferring property, including the gold, to the Netherlands Government (the A.1 decree). In July 1940, the Board of Trade made a vesting order transferring the gold to the Custodian of Enemy Property. He sold it for £2 million. In May 1950 the Netherlands Government made an order returning the property in the gold to the Bank. The Bank then claimed against the Custodian in conversion for the present value of the gold. Devlin J held that the A.1 decree was ineffective to transfer moveable property in this country.
Held: ‘I think it is convenient to begin by considering what is the general principle of our law with regard to foreign legislation affecting property within our territory. There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam is the exception rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy. Upon this basis the A.1 decree, not being a part of English law, would not transfer the property in this case. But decrees of this character have received in the authorities rather different treatment. Although there is not, as far as I am aware, any authority which distinguishes general legislation, such as part of a civil code, from ad hoc decrees, the effectiveness of such decrees does not appear on the authorities to be determined exclusively by the application of the lex situs. Apart from two recent cases on which the plaintiffs greatly rely, there has been no case in which such a decree has been enforced in this country, but the grounds for refusing effect to them have been variously put. Sometimes it is said that the decree is confiscatory. In the textbooks it is said sometimes that as a matter of public international law no State ought to seek to exercise sovereignty over property outside its own territory, and therefore the principle of comity is against enforcement; and sometimes it is said that the principle of effectiveness is against enforcement, since no State can expect to make its laws effective in the territory of another State. Dicey, Conflict of Laws, 6th ed., p. 13, states: ‘A State’s authority, in the eyes of other States and the courts that represent them, is, speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons not within its territory.’
Statutes: Trading With The Enemy Act 1939
This case is cited by:
References: Times 04-Apr-1994, [1994] 3 All ER 180
Coram: Steyn LJ, Peter Gibson LJ and Sir Tasker Watkins
An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time when the English court becomes definitively seised of proceedings’. The ECJ in the Zelger case had ’emphasise[d] the importance of certainty in national procedural laws’, and that ‘a ‘date of service’ rule would be readily comprehensible not only in England but also in other Contracting States.’
Statutes: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
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References: [2009] EWCA Civ 632, [2009] Bus LR 1663, [2010] 1 Ch 187, [2010] 2 WLR 349
Links: Bailii, Times
Coram: Lord Justice Ward, Lord Justice Stanley Burnton and Sir John Chadwick
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The statutory prohibition against creditors bringing proceedings against a company being wound up by the court is not extra-territorial. The protection of the assets of a company in administration is not to be regarded by the Court as differing in substance from the protection of the assets of a company in compulsory liquidation. In both cases, the assets of the company are dealt with by an officer appointed by the Court in accordance with statutory duties.
The conduct of the Appellants and the circumstances of the attachments brought it into the exceptional category in which the grant of injunctive relief is justified, notwithstanding comity and notwithstanding the outstanding application of the Administrators in New York.
Statutes: Insolvency Act 1986
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