Civil (12)

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What must you make sure you distinguish between for the purpose of the assessment?: (1) Choice of jurisdiction; and
(2) Choice of law.
What does 'choice of jurisdiction' mean?: Which country's courts have the authority to hear a particular dispute.
When do you move on to consider the choice of law?: Only once you have established choice of jurisdiction, i.e. which country's courts have authority to hear a particular dispute.
What does choice of law mean?: Once a country's courts are 'seised' of a dispute, which country's laws will they apply to the dispute between the parties?
Might the English and Welsh courts ever have to apply another country's laws, e.g. Japanese law?: Yes
What are we looking at for the purpose of the civil lit module?: Choice of jurisdiction only.
When is foreign jurisdiction an issue?: (1) Where the subject matter of the dispute occurred abroad / is based abroad; or
(2) When one or more of the parties are based overseas.
When should foreign jurisdiction be considered in the context of the civil litigation flowchart?: At the beginning. The claimant needs to now which country's courts have the authority to hear a particular dispute.
How would you describe foreign jurisdiction from the perspective of a claimant, also what does the claimant need to consider?: Pre-acton consideration:

(1) Where can I bring my cause of action?
(2) Must I bring my cause of action in a particular country?
When does foreign jurisdiction become a factor for the purpose of the defendant?: Once a claim form has been served, the D needs to decide whether to contest jurisdiction or submit to the court's jurisdiction.
What are the two principal jurisdiction regimes that you need to know for the purpose of the civil lit module?: (1) Regulation (EU) No. 1215/2012
(2) The Common Law
What are the operative parts of the Regulation?: The Articles, rather than the Recitals
To determine whether the English Courts have jurisdiction, what three steps do you need to answer?: (1) Does the Reg apply?
(2) Do the English courts have jurisdiction?
(3) Will the English courts accept jurisdiction?
To answer whether the Regulation applies? What is required?: (1) International element; AND
(2) The claim must fall within the Regulation's 'material scope'; AND
(3) The claim must fall within the Regulation's 'temporal scope'.
What is an international element?: Basically a transaction that involves something or someone residing in another jurisdiction.
Does your claim fall within the Regulation's material scope?: 1) Need a connection with the EU (Recital 13)

(2) The type of claim (Article 1(1) and 1(2).
How can you demonstrate a connection with the EU?: (1) 'Domicile' of the DEFENDANT (Art. 62 and 63)
(2) 'Exclusive' jurisdiction (Art. 24)
(3) A jurisdiction clause (Art. 52)
What is the temporal scope?: Shall apply to legal proceedings instituted on or after 10 January 2015.

(Articles 66 and 81)
What do you need to work through to determine whether English courts have jurisdiction?: (1) Exclusive Jurisdiction (Article 24)
(2) Submission (Article 26)
(3) Jurisdiction clause (Article 25)
(4) Other rules - Domicile/Special Jurisdiction (Articles 4, 7 and 8)
What needs to be discussed for the purpose of Article 24 (Exclusive Jurisdiction): Identify whether the subject of the matter is confined to the exclusive jurisdiction of a particular country's courts
How can a defendant be deemed to submit the English court's jurisdiction?: (1) Acknowledging service with the intent to defend; or
(2) Filing a defence.
If a defendant intends to dispute jurisdiction, what should they do.: Acknowledge service but say that you dispute jurisdiction.
What do the other rules cover?: Art. 4 - Sue in domicile of D
(See Art. 62 and 63)

Art. 7(1) - Contract claims
Art. 7(2) - Tort
Art. 7(5) - Branch or agendy

Art. 8 - Co Ds or counter claims.
Can a client have a choice of location to bring proceedings?: Yes, for example where, under a contract the D is located in one country and goods were delivered to another, Art. 4 and Art. 7(1)(b) allow a choice. Where this is the case, think forum shopping.
Bier v Mines de Potasse: (1) Poisonous waste thrown in river in France
(2) Flowed downstream to the Netherlands
(3) Claim could be brought in either jurisdiction
Where an act takes place in one EU country, but the consequences impact a second, what case provides that an action can be brought in either?: Bier v Mines de Potasse
When might you be able to issue proceedings against the branch of a company?: When the subject matter of the dispute arises out of the operations of the branch.
Where a matters impact a number of countries, can you bring all parties together to have the matter dealt with by one country's courts?: Yes (Art. 8(1)) allows for this.
Can a third party be added to proceedings that have been issued?: Yes. Art 8(2) a third party can be drawn into another jurisdiction's proceedings (even if they are the defendant). Caveat - cannot start proceedings in another country purely to pull the D into another jurisdiction's laws.
If you have a counter claim, can you add someone to a claim even if located outside the jurisdiction?: Yes (Art. 8(3)) - can add to the original claim
What parties are protected under the Regulation?: (1) Consumers (Arts. 17 - 19)
(2) Employees (Arts. 20 - 23)
What is the order of priority?: (1) Exclusive Jurisdiction (Article 24)
(2) Submission (Article 26)
(3) Jurisdiction clause (Article 25)
(4) Other rules - Domicile/Special Jurisdiction (Articles 4, 7 and 8)
In terms of application during the exam and exam technique more generally, in what order should you discuss to order of priority?: From 4 upwards.
When will a court decide whether it has jurisdiction?: If it is the court first seised
What if a claim is issued in a county when the same claim has already been issued in another?: Art. 29 - the court 'shall' stay its proceedings.
What happens if a claim is issued in a county when a related claim has already been issued in another?: Art. 30 - the court 'may' stay its proceedings.
What do you fall back on if your claim falls outside the scope of the Regulation?: You apply the Common Law rules
In terms of determining whether the English courts have jurisdiction, once you know whether the common law rules apply, what three alternatives need to be satisfied?: (1) Presence;
(2) Submission; OR
(3) Permission.
How can you determine 'presence' for the purpose of the Common Law rules?: A foreign defendant is subject to the jurisdiction of the English courts 'if proceedings are served within the jurisdiction'.
What can the English courts do if the foreign defendant tries to contest jurisdiction?: The English courts can stay proceedings
Maharanee of Baroda v Wildenstein: Case for presence. Defendant in the jurisdiction for one day each year (Ascot races). C served proceedings on D at races. Held: service was effective.
Case for presence. Defendant in the jurisdiction for one day each year (Ascot races). C served proceedings on D at races. Held: service was effective.: Maharanee of Baroda v Wildenstein
How can a D submit to the jurisdiction under the Common Law rules?: (1) Appearing in proceedings, e.g. filing a defence or acknowledge service with an intent to defend; or
(2) Appointing an agent to accept service (e.g. a solicitor).
How can 'Permission' be established under the Common Law rules?: Need to ask for the English court's permission to serve the claim form in another jurisdiction.
What are the three requirements for the purpose of obtaining 'Permission' from the English courts? Auth?: 1) Need a 'jurisdictional gateway' (CPR 6B PD 3.1)
2) A reasonable prospect of success; AND
3) Evidence that England is the 'forum conveniens'.
What do you need to show to convince the court that England and Wales is the Forum Conveniens?: England and Wales must be the forum with the most real and substantial connection.
In determining whether E&W is the Forum Conveniens, what will the courts look to?: (1) Where the witnesses, experts, evidence is located.

(2) Is local knowledge required?

(3) Interests of all parties and the ends of justice
Who will argue for 'Forum conveniens'?: The claimant
Who will argue for 'Forum non Conveniens': The Defendant when arguing against the court's jurisdiction.
Do you need presence, permission and submission for the Common Law rules to apply?: No you only need one, not all. It's either or.
How many months does your claim form remain valid if served out of the jurisdiction, rather than in the jurisdiction?: Six months rather than four - CPR 7.5(2)
How do you go about serving a claim form overseas?: Instruct a local lawyer to ensure you comply with the local laws.
What is forum shopping?: When you have a choice of jurisdiction, that tactically is best for the client.
What factors impact forum shopping?: (1) Disclosure obligations;
(2) Costs rules;
(3) Length of proceedings (some countries' courts quicker than others); and
(4) Enforcement methods (local rules on enforcement may be easier).

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