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Jurisdiction - From: 1900 To: 1929
This page lists 19 cases, and was prepared on 02 April 2018.
Parker v Schuller (1901) 17 TLR 299
1901
CA
A L Smith MR, Collins, Romer LJJ
Jurisdiction, Litigation Practice
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the allegation was that the contract was broken by reason of a failure to deliver in Liverpool the goods that were the subject of the contract. Leave was given ex parte and upheld inter partes. The plaintiffs now conceded that the way that their claim had been advanced had been misconceived in that a CIF contract involves an obligation to deliver documents, not the goods to which the documents relate. The plaintiffs tried to persuade the Court to uphold the leave given to serve out on the basis of substituting for the original claim a claim for failure to deliver the relevant documents in Liverpool. Held: Permission was refused. A L Smith MR said: "It was not until the case came into this Court that the plaintiff set up another cause of action. That could not be allowed."
Collins LJ said: "an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed . . to set up another and a distinct cause of action which was not before the Judge upon the original application. It was clear from the affidavit that the only case made on the original application was that the defendants were bound to deliver the goods in this country, and that there was a breach of that contract here, and upon that representation alone leave was originally granted to issue the writ and serve notice thereof abroad."
Romer LJ said: "an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge upon the original application."
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Feyerick v Hubbard (1902) 71 LJKB 509; (1902) 86 LT 829; (1902) 50 WR 557; (1902) 18 TLR 381; (1902) 46 Sol Jo 318
1902
Walton J
Jurisdiction
A contract between a British subJect and resident and a foreigner provided for the contact to be governed by the courts of Belgium. Held: The clause was enough to give the Belgian courts jurisdiction and for the finding to be effective though he had not participated in the proceedings.
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Cathcart v Cathcart (1902) 12 SLT 182
1902
Lord Low
Scotland, Jurisdiction, Land
The Court refused to grant a declarator that the pursuer was entitled to a liferent of land situated in England. Lord Low said: "Real estate in England is beyond the jurisdiction of the Scotch courts . . Further, if decree of declarator in terms of the second conclusion was pronounced, this court would have no power to give practical effect to the right thereby declared. The pursuer would require to go to England to obtain his remedy. Would the English courts, according to the principles of international law, be bound to recognise and act upon the declarator of this court? I am of opinion that they would not . . I think that the answer would be that it was for the court of the country where the real estate was situated to say what was the result, as regards the rights of the parties [of the relevant events]. I am therefore of opinion that the question . . is one with which this court is not competent to deal."
Potter v Broken Hill Pty Co Ltd [1905] VLR 612; [1905] VicLawRp 93; [1905] 11 ALR 357; [1905] 27 Alt 74
21 Aug 1905
Hodges, Hood JJ
Jurisdiction, Commonwealth
VLR (Supreme Court - Victoria) International law - Conflict of laws - Tort committed abroad - Jurisdiction - Patent in New South Wales - Infringement by Victorian company in New South Wales of New South Wales patent - Action not justiciable in Victoria - "Local action" - "Transitory action" - Practice - Demurrer - Right of reply.
Patents could be granted by the several States in Australia. Potter obtained a patent in Victoria for the separation of metals from sulphide ores and a patent for the same process in New South Wales. He claimed that (as well as a threatened infringement of the Victorian patent in Victoria) the defendant had infringed the New South Wales patent at its mine in New South Wales. Broken Hill denied novelty and utility, but also said that an action for the infringement in New South Wales of a New South Wales patent was not justiciable in the Victorian courts. Held: The Full Court of the Supreme Court of Victoria, decided by a majority that the claim was not justiciable.
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[ Austlii ]
Martin v Nadel [1906] 2 KB 26
1906
CA
Stirling LJ, Vaughan Williams LJ
Banking, Jurisdiction, Litigation Practice
A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank. Held: A garnishee order is of the nature of an execution, and is governed by the lex fori; and by international law an execution which has been carried into effect in a foreign country under foreign law, and has taken away part of a man's property, is not recognised as binding. Under the rules of international law the Bank could not set up, in an action in Berlin, the execution levied in this country in respect to this debt. If we consider the converse case it is clear that we should take that view of a similar transaction occurring abroad. An absolute order was refused because the garnishee bank was at risk of having to pay twice and the making of an order in such circumstances was "inequitable" and "contrary to natural justice". "On the facts of this case the debt of the bank to Nadel would be properly recoverable in Germany. That being so, it must be taken that the order of this Court would not protect the bank from being called on to pay the debt a second time."
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Norwich Corporation v Norwich Electric Tramways [1906] 2 KB 119
1906
Jurisdiction
An objection as to jurisdiction can be taken at any stage of the proceedings, and not only can but should be taken by the court of its own motion.
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Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479; [1906] HCA 88
20 Mar 1906
Griffith C.J., Barton and O'Connor JJ
Jurisdiction, Commonwealth, Intellectual Property
(High Court of Australia) (affirmed)
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[ Austlii ]
Watson v Daily Record Ltd; CA 1907 - [1907] 1 KB 853
Emanuel v Symon [1908] 1 KB 302
1908
CA
Kennedy LJ
Jurisdiction
Kennedy LJ confirmedtaht the Faridkote case had decided of a suggested obligation to submit to a foreign jurisdiction that it: "was not to be implied from the mere fact of entering into a contract in a foreign country".
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In re Aktiebolaget Robertsfors and La Societe Anonymes des Papeteries de l'AA [1910] 2 KB 727
1910
CA
Litigation Practice, Jurisdiction
The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices. Held. The power was only exercisable in situations where service out of a writ was permissible under O.XI r.8 and so did not cover a summons to set aside an arbitration award.
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Standing v Eastwood and Co [1912] 5 BWCC 268
1912
Fletcher Moulton LJ
Jurisdiction, Litigation Practice
A court's jurisdiction cannot be created by the contract or consent of the parties.
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In re Republic of Bolivia Exploration Syndicate Ltd [1914] 1 Ch 139
1914
Astbury J
International, Jurisdiction
"Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation."
Diplomatic Privileges Act 1708
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Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536
1915
CA
Pickford LJ, Bankes LJ
Jurisdiction, Litigation Practice
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."
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Loucks v Standard Oil Co of New York; 1918 - [1918] 120 NE 198,
Societe Du Gaz De Paris v Armateurs Francais [1925] UKHL 2; (1925) 23 Ll L Rep 209; 1926 SC (HL) 13; 1926 SLT 33
3 Dec 1925
HL
Scotland, Jurisdiction, Transport
[ Bailii ]
Richardson v Richardson [1927] P 228,
1927
KBD
Hill J
Jurisdiction, Litigation Practice
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter. Held: The bank is no doubt indebted to the judgment debtor and the bank is within the jurisdiction. The Order deals with the case where 'any other person is indebted to the judgment debtor and is within the jurisdiction". But both in principle and upon authority, that means 'is indebted within the jurisdiction and is within the jurisdiction'. The debt must be properly recoverable within the jurisdiction. In principle, attachment of debts is a form of execution, and the general power of execution extends only to property within the jurisdiction of the Court which orders it. A debt is not [properly] within the jurisdiction if it cannot be recovered here. The court was accordingly of opinion that moneys held by the bank to the credit of the judgment debtor at the African branches cannot be made the subject of a garnishee order, for they are not a debt recoverable within the jurisdiction." The court went on to hold that, if he was wrong in that conclusion, he would exercise his discretion against the making of an order.
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The Case of the SS "Lotus" (1927) PCIJ Series A - No 10
1927
PCIJ
International, Jurisdiction
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."
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Inland Revenue Commissioners v Lysaght; HL 1928 - [1928] AC 234
Hyman v Hyman [1929] AC 601; [1929] All ER 245; [1929] P 1
1929
HL
Lord Hailsham LC, Lord Atkin
Jurisdiction, Family
The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant by the wife that she would not institute any proceedings to make him pay more than this. Held: The parties cannot lawfully covenant or make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction in invoked. In partiicular, a wife cannot contract out of her matrimonial maintenance entitlements in a deed of separation.
Lord Atkin gave a short history of such contracts and commented on their effect: "We have to deal with a separation deed, a class of document which has had a chequered career at law. Not recognized by the Ecclesiastical Courts, such contracts were enforced by the common law. Equity at first frowned. Lord Eldon doubted but enforced them: cf. St. John v. St. John (1803) Ves. 525, 529 and Bateman v. Countess of Ross (1813) 1 Dow 235; and see the arguments of Sir Fitzroy Kelly and Mr Turner and of Mr Bethell in Wilson v. Wilson (1848) 1 H. L. C. 538, 550-553, 564, 565. Finally they were fully recognized in equity by Lord Westbury's leading judgment in Hunt v. Hunt (1861) 4 D. F. and J. 221, in which he followed Lord Cottenham's decision in Wilson v. Wilson (1846-1848) 1 HLCas 538, 550-553, 564, 565, where his argument for the respondent had prevailed. Full effect has therefore to be given in all courts to these contracts as to all other contracts. It seems not out of place to make this obvious reflection, for a perusal of some of the cases in the matrimonial courts seems to suggest that at times they are still looked at askance and enforced grudgingly. But there is no caste in contracts. Agreements for separation are formed, construed and dissolved and to be enforced on precisely the same principles as any respectable commercial agreement, of whose nature indeed they sometimes partake. As in other contracts stipulations will not be enforced which are illegal either as being opposed to positive law or public policy. But this is a common attribute of all contracts, though we may recognize that the subject-matter of separation agreements may bring them more than others into relation with questions of public policy." and "the court's statutory powers to order a divorced husband to maintain his former wife were granted 'partly in the public interest to provide a substitute for this husband's duty of maintenance and to prevent the wife from being thrown upon the public for support'"
Lord Hailsham LC said: "However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction." The existence of the covenant did not preclude the wife from making an application to the court: "this by no means implies that, when this application is made, the existence of the Deed or its terms are not the most relevant factors for consideration by the court in reaching a decision."
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