What is jurisdiction?
Jurisdiction is a topic made considerably less clear than it ought to be by the use of the word ‘jurisdiction’ to refer to a number of different concepts.
What is jurisdiction?
An initial distinction can be drawn between:
- ‘Jurisdiction’ as referring to the territory within which a particular court has the power to compel parties. In this sense, in relation to the courts of England and Wales one might speak of a party physically located in England as being ‘within the jurisdiction’. This is the sense used in CPR 2.3 (“jurisdiction” means, unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales”) and CPR 6 (Part II: Service of the Claim Form in the Jurisdiction / Part IV: Service of the Claim Form and other Documents out of the Jurisdiction).
- ‘Jurisdiction’ as referring to the power itself. In this sense one can speak of a court ‘having jurisdiction’ over a particular party or matter. This is the sense used in CPR 11 (Disputing the Court’s Jurisdiction).
Challenges to jurisdiction
When considering jurisdiction in the latter sense, i.e. the court’s power to compel parties, two broad issues arise:
- Does the court have the power to compel the party in question?
- Should the court exercise its power to compel the party in question?
These two issues are reflected in CPR 11(1), which provides for a defendant to:
- Dispute the court’s jurisdiction to try the claim (i.e. argue that the court does not have power); or
- Argue that the court should not exercise its jurisdiction.
However, whilst both issues are dealt with in CPR 11 it should be remembered that they are “logically and juridically separate and distinct [and] typically involve different forms of relief”: IMS SA v Capital Oil and Gas Industries Limited [2016] EWHC 1956 (Comm) at [29].
Does the court have the power to compel?
The court’s power to compel a party is founded on service (IMS at [27]). A claimant submits to the court’s power by issuing a claim, but the court will only have power over the defendant if the defendant has been properly served (unless the defendant voluntarily submits to the court’s jurisdiction).
Where the parties are located in England and Wales this is likely to be relatively straightforward: provided the relevant documents have been served in accordance with the familiar provisions of CPR 6 (and/or any rules specific to particular courts, such as CPR 58.5 in the Commercial Court) the court will have power to try the dispute.
Where the parties (or at least the defendant) are located outside England and Wales it becomes necessary to follow the rules in CPR 6 Part IV (Service of the Claim Form and other Documents out of the Jurisdiction). Save for defendants in other constituent parts of the UK (Scotland and Northern Ireland), and the few exceptions in CPR 6.33, the court’s permission is required: CPR 6.36.
In practical terms the court’s permission is obtained by making a without-notice application in accordance with CPR 6.37. In order to succeed it is necessary to show that one of the grounds (also known as ‘heads of jurisdiction’ or ‘gateways’) in Practice Direction 6B paragraph 3.1 applies to the claim, and also to show a real prospect of success (CPR 6.37(1)(b)) and to satisfy the court that England and Wales is the proper place in which to bring the claim (CPR 6.37(3)).
Should the court exercise its power to compel?
Provided the defendant has been properly served, the court can try the claim. The next question is whether the court should try the claim. This issue is primarily concerned with the question of whether or not the English court is the most appropriate place for the claim to be heard. When arguing that England and Wales is the appropriate place one speaks of forum conveniens (i.e. the ‘convenient’ or ‘appropriate’ forum); when arguing that England and Wales is not appropriate one speaks of forum non conveniens.
The principles to be applied when considering whether England and Wales is the appropriate place for the claim to be heard are set out in Spiliada Maritime Corp v Cansulex [1986] UKHL 10, and have been commented on in numerous subsequent cases. They apply both to a claimant arguing that England and Wales is the proper place to bring a claim (when seeking permission to serve out, as above) and to a defendant arguing that England and Wales is not the appropriate place for the claim to be heard (when applying for a stay on forum non conveniens grounds).
The Spiliada principles require the court to consider:
- Whether there is some other place that is clearly more appropriate (having regard to factors such as the applicable law, the location of witnesses and documents, the languages involved, the existence of related litigation in other places, etc.). Where the parties have agreed that their disputes will be tried in a particular place (an exclusive jurisdiction clause) this will normally be determinative.
- Whether, even if some other place is clearly more appropriate, justice nonetheless requires that the claim should be heard in England and Wales (e.g. because a fair trial will not be available in the other place).
Hague Convention
An exception to the above is provided by the Hague Convention on Choice of Court Agreements 2005. This requires contracting states (EU members plus the UK, Denmark, Mexico, Montenegro, Moldova, Singapore and Ukraine) to uphold exclusive jurisdiction agreements nominating the courts of a contracting state. Accordingly if the parties have agreed that their disputes should be heard in the courts of a contracting state, that state’s courts must hear a claim between those parties and any other state’s courts must refuse to do so. The difference with the common law rules outlined above is that under the Hague Convention an exclusive jurisdiction clause will always be determinative, whereas under the common law rules this will only normally be so.
Relief
As explained by Popplewell J in IMS at [28], “Where there has been no valid service … the court will set aside service and set aside the claim form. On the other hand where the challenge is to the exercise of jurisdiction on grounds of forum non conveniens, the appropriate relief is usually a stay of proceedings, which is capable of being lifted, if appropriate, in the light of subsequent events.” These alternatives are reflected in the various sub-paragraphs of CPR 11(6).
In practical terms this means that:
- A defendant located outside England and Wales which has been served with the court’s permission may apply to set aside the order granting permission on the basis that one or more of the requirements for permission was not made out.
- A defendant located within England and Wales which has been served but which considers that some other place is more appropriate for the claim to be heard can apply to stay the proceedings on the basis that England and Wales is not the appropriate place (a forum non conveniens application). This can be made at the outset of proceedings (following the procedure in CPR 11 and any modifying rules, such as CPR 58.7 in the Commercial Court) or, if the relevant factors only become apparent later on, at some subsequent juncture.
Caveat
This note applies to proceedings begun on or after 1 January 2021, after the end of the transition period for the UK leaving the EU. For proceedings begun prior to that date the former EU regime may apply.
