Civil Jurisdiction and Judgments

A THE LAW AND THIS BOOKGENERALCivil jurisdiction and judgments in the age of Brexit and CovidGeneral introductionEuropean law in English courtsThe Brussels ConventionsThe Lugano ConventionsThe Brussels I Regulation: Regulation (EC) 44/2001The Brussels I Regulation ‘recast’: Regulation (EU) 1215/2012Secondary sources of lawReferences to the European Court for a preliminary rulingThe authority of decided casesBREXIT AND ITS EFFECT ON THE LAWBrexit in a nutshellThe principal points of primary legislation directly resulting from BrexitSecondary legislation: provisions ceasing to have legal effectLaws which remain in effect despite the Brexit legislationNon-retained EU Laws with temporary effect after Completion DayLegal developments liable to take place on or after Completion DayIf the United Kingdom does not participate in the Lugano ConventionDisclaimerB JURISDICTION ACCORDING TO THE LUGANO/BRUSSELS RULESTHE LUGANO CONVENTION AND ITS INTERPRETATIONLugano rules or Brussels rules?The Brussels Regulation in reviewJurisdictional connections with other territoriesThe Lugano II ConventionLugano and Brussels: interpretation and relationshipReconsideration of established interpretations?General principles of interpretationTechnical terms bear an equal and uniform interpretationThe nature of autonomous interpretationPurposive interpretationExceptions to general rules are construed narrowlyThe risk of irreconcilable decisions must be minimisedLegal certainty, predictability, and proximity, should be supportedAll Lugano courts are of equal authoritySecuring uniformity of interpretation of the Lugano ConventionTHE JURISDICTIONAL STRUCTURE OF THE LUGANO CONVENTIONThe jurisdictional rules of the Lugano ConventionThe hierarchy of jurisdictional rules in the Lugano ConventionThe advantage of being first to commence proceedingsProspective claimantProspective defendantThe lack of other ways to prevent a court exercising jurisdictionBringing substantive proceedings in spite of those in another courtInjunction to restrain the bringing of proceedings in other Lugano StateWhat a defendant should do if served with processWhat a claimant may do if the defendant does not enter an appearanceThe nature of the jurisdictional rules of the Lugano ConventionMATERIAL AND OTHER SCOPE OF THE LUGANO CONVENTIONGeneralTemporal scopeGeographical scopePersonal scopeInternational scopeMaterial scope of the Convention: Article 1Matters excluded from the Convention: general interpretationCivil and commercial matters: the meaning of ‘matters’Proceedings between private partiesProceedings brought by public authorities against private partiesProceedings brought against public bodiesPrivate persons exercising public functionsCivil and commercial matters: excluded issues arising incidentallyCivil and commercial matters: proceedings forming part of a greater wholeMatters specifically excluded by Article 1Personal capacity and status, marital property, wills and successionBankruptcy and insolvencySocial securityArbitration: the broad principleArbitration and Regulation 1215/2012ConclusionJURISDICTION UNDER ANOTHER CONVENTION OR INSTRUMENTGeneralExisting (and new) conventions on particular mattersIncorporation by reference of jurisdiction from a particular conventionMaritime and other conventionsThe 2005 Hague Convention on Choice of Court AgreementsRelationship between Lugano Convention and the Brussels RegulationConclusionEXCLUSIVE JURISDICTION, REGARDLESS OF DOMICILEGeneralTitle to and tenancies of immovable property in a Lugano State: Article 22(1)Proceedings having as their object rights in rem in immovable propertyClaims based on personal obligations relating to landA dispute which requires the application of principles of land lawProceedings having as their object tenancies of immovable propertyProceedings in which Article 22(1) is raised by the defence, not the claimShort private lettings: concurrent exclusive jurisdictionImmovable property in the United KingdomImmovable property in a non-Lugano StateCompanies with their seat in a Lugano State: Article 22(2)Corporate validity as the principal element in the proceedingsThe jurisdictional effect of imperfections in corporate decision-takingThe seat of the company for the purpose of Article 22(2)Company with seat in the United KingdomValidity of entries in public registers in Lugano States: Article 22(3)Registers in the United KingdomIntellectual property rights registered in Lugano States: Article 22(4)Invalidity raised as a defence to an infringement claimClaims involving multiple national patentsDeposit or registration in the United KingdomEnforcement of judgments from Lugano States: Article 22(5)GeneralOrders made in relation to judgments from other Lugano StatesEnforcement orders made in aid of English judgmentsJudgments from non-Lugano StatesEnforcement of judgments from Lugano States in the United KingdomArticle 22 and connections which would point to a non-Lugano StateConclusionJURISDICTION BY ENTERING AN APPEARANCEGeneralEntering an appearance, rather than submissionAppearance to contest the jurisdiction of the courtContesting the jurisdiction of the court: procedureAppearance by insured, consumer, or employeeConclusionJURISDICTION IN MATTERS RELATING TO INSURANCEGeneralStructure of and approach to Section 3 of Title IIProfessional and ‘insurance-professional’ relationshipsGeneral jurisdictional rules for Section 3 cases: Articles 9 to 12Agreements on choice of court: Articles 13 and 14International jurisdiction in the courts of the United KingdomConclusionJURISDICTION IN MATTERS RELATING TO CONSUMER CONTRACTSGeneralGeneral scope and purpose of Section 4 of Title IIThe professional counter-party: Article 15Making a contract as consumerMaking a contract for mixed purposesMatters relating to a contract: prize casesMatters relating to a contract: rescission and repayment claimsParties to the contract; parties to the proceedingsThe three kinds of consumer contract to which Section 4 appliesContracts of sale on instalment credit termsContracts made to finance the sale of goodsContracts with those who pursue activities in or direct activities to a Lugano StateJurisdictional rules for contracts within Section 4: Article 16Agreements on choice of court: Article 17Additional legislative provision for small claimsInternational jurisdiction in the courts of the United KingdomConclusionJURISDICTION IN RELATION TO INDIVIDUAL CONTRACTS OF EMPLOYMENTGeneralGeneral scope and purpose of Section 5 of Title IISection 5 of Title II and powerful relationshipsSection 5 and work relationships pretending not to be employmentFormer employmentThe relationship between the claim and the employmentJurisdictional rules under Section 5: Articles 18 to 21Employment and duties in more than one Lugano StateAgreements on jurisdictionInternational jurisdiction in the courts of the United KingdomConclusionJURISDICTION AGREEMENTS FOR A COURT IN A LUGANO STATEGeneralThe function and effect of an agreement on jurisdictionManaging jurisdictional disputes arising from agreementsThe nature of agreement on the jurisdiction of courtsFormal requirements for an agreement on jurisdiction: generalAgreement of the party to be bound, in writing, or evidenced in writingAgreement according with the parties’ established practicesAgreement according with the practices of international tradeJurisdiction agreement incorporated from one document into anotherDomicile requirements for an agreement on jurisdictionArticle 23 and third parties: succession and substitutionArticle 23 and third parties: subrogation and assignment in national lawArticle 23 and the veil of incorporationAgreement for the courts of two Lugano StatesAgreeing to the non-exclusive jurisdiction of a Lugano State courtAsymmetrical jurisdiction agreementsNon-geographical designation of court agreed toAgreement for the courts of the United KingdomDisputing the formal validity of the jurisdiction agreementChallenges to the substantive validity of the jurisdiction agreementScope of the jurisdiction agreementJurisdiction agreements in trust instrumentsJurisdiction by agreement derived from other contractual termsAgreements for non-Lugano courts: 2005 Hague ConventionAgreements for non-Lugano, non-Hague, courtsConclusionGENERAL JURISDICTION OVER DEFENDANT DOMICILED IN THE UNITED KINGDOMGeneralBeing suedThe determination of a defendant’s domicileDomicile in the United Kingdom: individualsDomicile of corporations and associationsSeat of company or association for purpose of Article 22(2)Deemed domicile of non-dom insurers, professionals, and employersDomicile of trustsDomicile of the CrownConclusionsSPECIAL JURISDICTION OVER DEFENDANT DOMICILED IN ANOTHER LUGANO STATE (1)GeneralSpecial jurisdiction in generalRelationship to questions of applicable lawSpecial jurisdiction in matters relating to a contract: Article 5(1)Matters relating to a contract: formulating an autonomous definitionThe decision in Handte: litigation involving strangers to the contractClaims against parties more remotely associated with a contractThe decision in Handte: the nature of undertakings freely entered intoMatters relating to a contract: disputing the existence of a contractMatters relating to a contract: voidable contracts and ‘void contracts’Matters relating to a contract: tortious conduct by contracting partiesMatters relating to a contract: unjust enrichment and similar claimsContractual and non-contractual claims in the same proceedingsThe obligation in question which locates special jurisdictionThe obligation in question for contracts for the sale of goodsThe obligation in question for contracts for the provision of servicesThe obligation in question for contracts falling under Article 5(1)(a)Place of performance of the obligation in question: Article 5(1)(a)Place of performance of the obligation in question: Article 5(1)(b)Goods delivered under the contract in several places: Article 5(1)(b)Services provided under the contract in several places: Article 5(1)(b)Place of performance of the obligation in other contexts: Article 5(1)(a)International jurisdiction in the United KingdomSpecial jurisdiction in matters of maintenance: Article 5(2)Special jurisdiction in matters relating to tort and delict: Article 5(3)Matters relating to tort, delict or quasi-delict: introductionMatters relating to tort: Kalfelis and the meaning of ‘liability’Matters relating to tort, delict or quasi-delict: cases since KalfelisThe relationship between Article 5(3) and the Rome II RegulationPre-contractual liability and similar complaints of faultThe harmful event: general interpretationThe harmful event and proceedings for negative declaratory reliefThe ‘damage’ limb: the damage which is relevant and that which is notThe damage limb of Bier: locating where the damage occurredThe damage limb of Bier: pure financial loss in bad investment casesThe damage limb of Bier: pure financial loss in other circumstancesThe damage limb of Bier: loss or damage in several Lugano StatesThe ‘causal event’ limb of Bier: the event giving rise to the damageThe ‘causal event’ limb of Bier: the event at the beginning of the storyThe ‘causal event’ limb of Bier: the person whose act is materialSpecial jurisdiction in respect of threatened or anticipated tortsInternational jurisdiction in the English courtSpecial jurisdiction over civil claims in criminal cases: Article 5(4)Special jurisdiction over a defendant operating through branch or agency: Article 5(5)Branch, agency or other establishmentDispute arising from operations of the branch, agency or establishmentInternational jurisdiction in the English courtSpecial jurisdiction over a trustee, beneficiary or settlor sued as such: Article 5(6)The nature of the proceedings falling within Article 5(6)Jurisdiction over payment in respect of salvage claims: Article 5(7)SPECIAL JURISDICTION: OVER DEFENDANT DOMICILED IN ANOTHER LUGANO STATE (2)Special jurisdiction under Article 6Special jurisdiction over co-defendants where one is sued at home: Article 6(1)Jurisdiction over the ‘anchor’ defendantThe connection between the claims against the defendantsThe connection between claims in intellectual property casesUse and abuse of Article 6(1)International jurisdiction in the courts of the United KingdomSpecial jurisdiction over claims involving third parties: Article 6(2)Jurisdiction over the third partyProceedings brought to deprive third party of the court of his domicileThe types of proceedings falling within Article 6(2)The discretion to decline jurisdiction under Article 6(2)Proceedings in the English courtSpecial jurisdiction over defendants to counterclaims: Article 6(3)The nature of a counterclaimProceedings in the English courtSpecial jurisdiction in personal claims connected to proceedings in rem relating to land: Article 6(4)Land in the United KingdomSpecial jurisdiction to limit liability from use of ship: Article 7ConclusionRESIDUAL JURISDICTION OVER DEFENDANT WITH NO LUGANO STATE DOMICILE: ARTICLE 4GeneralService of process on the defendant when the residual rules applyTHE COURT’S DUTY TO EXAMINE ITS OWN JURISDICTIONGeneralConfirming that no court has Article 22 jurisdiction: Article 25Confirming jurisdiction where the defendant is absent: Article 26ConclusionLIS PENDENS IN A LUGANO STATEThe effect of a lis pendens in another Lugano State: Articles 27 to 30Identical proceedings pending before court in Lugano State: Article 27General approach to Article 27General approach to Article 27: duty of the court seised firstComparison: duty of the court seised first under Regulation 1215/2012The same cause of action under Article 27: identity of objet and of causeMore complex cases of identity of objet and identity of causeThe same parties under Article 27: identity of partiesDate on which a court is seised: backgroundA uniform date of seisin for the purpose of the ConventionThe date of seisin: multiple and additional defendantsCourt ceasing to be seised or staying its proceedingsCourt seised second considers that it has jurisdiction and that the court seised first does notCourt seised second considers it has exclusive jurisdiction regardless of domicileCourt seised second considers it has ‘exclusive’ jurisdiction by agreementCourt seised first in another part of the United KingdomRelated action pending in another Lugano State: Article 28Identifying actions as ‘related’The relief which the court seised second may orderThe material date of seisin for the purpose of Article 28Concurrent exclusive jurisdictions: Article 29JURISDICTIONAL CONNECTION TO A NON-LUGANO STATEIntroductionConnections to a non-Lugano State: the background and the answerJurisdictional discretion and the ConventionThe nature of jurisdictional rules made by the ConventionMore appropriate forum in another Lugano StateMore appropriate forum in non-Lugano StatePointer to non-Lugano State corresponding to Articles 22 and 23Reflexive effect or remission to national law?Jurisdiction agreement for non-Lugano StateJurisdiction agreement for 2005 Hague Convention StateLand and other Article 22 pointers to non-Lugano StateResidual jurisdiction but connection to non-Lugano StateResidual jurisdiction but connection to Lugano StateB / C JURISDICTION WITHIN THE UNITED KINGDOMJURISDICTION WITHIN THE UNITED KINGDOMThe problem of jurisdiction in the United KingdomDomicile in and within the United KingdomThe Schedule 4 rules for determining national or internal jurisdictionThe Schedule 4 rules: interpretation and operation in Lugano casesThe Schedule 4 rules: interpretation and operation in non-Lugano casesJurisdiction in claims by local consumers and employeesJurisdiction in claims by and against a ‘local’ consumerJurisdiction in claims by and against a ‘local’ employeeC COMMON LAW AND STATUTORY JURISDICTIONCOMMON LAW PRINCIPLES OF JURISDICTIONIntroductionGeneralConsequence of service effected within the jurisdictionService out of the jurisdiction with permissionCases where jurisdiction at common law does not and cannot existClaims depending on title to foreign land: the Moçambique ruleEquitable exception: personal obligations relating to foreign landStatutory exception: claims based on tort or trespass to foreign landJurisdiction over claims which turn on the validity of foreign patentsJurisdiction over claims which require a court to enforce a foreign penal, revenue or public law of an analogous kindJurisdiction denied by general principles of public international lawJurisdiction in relation to international defamationSubject matter jurisdiction: misuse and misunderstandingSTAYING PROCEEDINGS WHEN THE COURT IS FORUM NON CONVENIENSGeneralLegislative limitations on the general power to stay proceedingsStaying proceedings: private interests and the public interestStaying proceedings after service within the jurisdiction: generalStructure of the Spiliada test: two limbs to answer a single questionNature and length of applications for a stayTime (limit) for applying for a stayFirst limb of the Spiliada test: the ‘availability’ of the foreign forumAvailability and the claimant’s prospects of success on the meritsAvailability and the prospects of a fair trialThe first limb of the Spiliada test: ‘natural or ‘appropriate’ forumThe first limb of Spiliada: particular pointers to appropriatenessAppropriateness (1): personal connections of the partiesAppropriateness (2): events, and evidence in relation to the eventsAppropriateness (3): the law which will be applied to the issues raisedAppropriateness (4): the effect of a lis alibi pendensAppropriateness (5): standing back for a broader viewThe first limb of the Spiliada test: the consequencesThe second limb of Spiliada: is it unjust to stay the proceedings?Reasons not to stay (1): differences in law and procedureReasons not to stay (2): differences in time bar rulesReasons not to stay (3): differences in law and outcomesReasons not to stay (4): claimant may win in England but lose overseasReasons not to stay (5): direct attacks on the quality of foreign courtFurther points: the strength of the claim or the defenceFurther points: various responses to lis alibi pendensStay of proceedings on the ground of case managementJURISDICTION AGREEMENTSNature and effects of jurisdiction agreementsTerminologyConstruction of the agreement: validity, scope, and natureValidity of jurisdiction agreement in admitted-but-voidable contractValidity of jurisdiction agreement in ‘void contract’; mandatory invalidity of jurisdiction agreementInterpreting the jurisdiction agreement: the relevant lawThe influence of arbitrationMaterial scope of agreement governed by English lawMaterial scope of jurisdiction agreement: effect beyond the contract in which it is writtenJurisdiction agreement imported from another contractPersonal scope of agreement: privity and related issuesEffect of agreement after assignment, transfer, subrogation, and so onMay sue or may sue only in the designated court? (Non-) exclusivityVarieties of non-exclusive jurisdiction agreementStaying proceedings brought in breach of contract: non-Hague casesStaying proceedings and non-exclusive jurisdiction agreementsStaying proceedings brought in breach of contract: Hague casesNot staying English proceedings; claiming damages for breachStays sought and obtained on the basis of agreements on arbitrationPROCEEDINGS COMMENCED BY SERVICE OUT OF THE JURISDICTIONStatutory claims which allow service out to be made without permissionService out where prior permission is requiredJurisdiction founded by service out: position of the defendantJurisdiction founded by service out: position of the claimantLegal basis for permission: CPR rule 6.36, and the gateways to jurisdictionStrictness in interpretation of the gateways to jurisdictionDefinition and interpretation of the gateways to jurisdictionClaims against a defendant domiciled in England: Paragraph 3.1(1)Claims for an injunction: Paragraph 3.1(2)Claims made against someone who is a necessary or proper party to a claim against another: Paragraph 3.1(3)Claims made under CPR Part 20: Paragraph 3.1(4)Connected claims against the same defendant: Paragraph 3.1(4A)Claims for interim remedies: Paragraph 3.1(5)Claims made in respect of a contract: Paragraph 3.1(6)-(8)The contract and its connection to England under sub-paragraphs (6) and (8)The contract and its connection to England under sub-paragraph (7)Claims made in tort: Paragraph 3.1(9)Damage sustained within the jurisdiction: sub-paragraph (9)(a)Act committed within the jurisdiction: sub-paragraph (9)(b)Claim made to enforce a judgment or arbitral award: Paragraph 3.1(10)Claim relating to property within the jurisdiction: Paragraph 3.1(11)Claims made about English law trusts: Paragraph 3.1(12)Claims made about trust with English jurisdiction: Paragraph 3.1(12A)Claims made in administration proceedings: Paragraph 3.1(13)Claims made in probate proceedings: Paragraph 3.1(14)Claims against constructive or resulting trustee: Paragraph 3.1(15)Claims made for restitution: Paragraph 3.1(16)Claims made by HM Revenue and Customs: Paragraph 3.1(17)Claims made for third party costs orders: Paragraph 3.1(18)Claims made in certain admiralty proceedings: Paragraph 3.1(19)Claims made under other enactments: Paragraph 3.1(20)Claims for breach of confidence or misuse of private information: Paragraph 3.1(21)The standard of certainty needed for claimant to satisfy Paragraph 3.1Discretion to authorise service out of the jurisdiction: CPR rule 6.37England is the proper place to bring the claim: CPR rule 6.37(3)England as the proper place: English law as the applicable lawEngland as the proper place for the trial of the claim: other factorsEngland as the proper place when it may not be the natural forumThe overall shape of the ‘proper place’ or ‘most appropriate forum’ testThe claim raises a serious issue which ought to be tried on the meritsSerious issue when elements of claim may be governed by foreign lawDeciding issues once and for all on a balance of probabilityDisputing jurisdiction and the exercise of jurisdiction: CPR Part 11JURISDICTION UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTSIntroductionInterpretation of the Hague ConventionScope of the 2005 Hague Convention: the cases it applies inScope of the 2005 Hague Convention: the agreements it applies to‘Exclusive’ as a term of art in the Hague ConventionFormal requirements for validity under the Hague ConventionDetailed conditions for the choice of court agreement to be applicableDuty of the chosen court to adjudicateDuty of court not chosen to not adjudicateTemporal scope of the Hague ConventionWithdrawal from the European UnionRelationship with the Lugano ConventionMethodology: English court chosen to have jurisdictionMethodology: foreign court chosen to have jurisdictionD PROCEDURAL MATTERS RELATING TO JURISDICTIONSERVICE OF PROCESSScope of Chapters 26 to 30Serving the claim form within the jurisdictionService of claim form: period of validity for serviceService of the claim form within the jurisdiction: methodsService of the claim form by personal service in EnglandService by an alternative method or at an alternative place; deeming failed attempts to serve to be sufficientService of claim form on companies: under the Companies ActsService of claim form in claims brought against partnershipsServing the claim form outside England and Wales without permissionService of claim form out of the jurisdiction: uncertainty over the need for permissionService of claim form out of the jurisdictionDISPUTING THE JURISDICTION OF THE ENGLISH COURTGeneralMaking no response to service of the claim formDisputing the basis for the court’s jurisdictionDisputing the jurisdiction when or where the Convention is decisiveDisputing the jurisdiction in non-Convention casesDisputing the jurisdiction: the Hague Choice of Court ConventionDisputing the jurisdiction: procedureApplication to dispute the jurisdiction of the court: CPR rule 11(1)(a)Disputing the jurisdiction and the risk of submission by accidentDisputing the jurisdiction under CPR rule 11(1)(a): other pointsDisputing the exercise of jurisdiction: CPR rule 11(1)(b)Defendant applying to have claim struck out on substantive groundsApplication by the claimant for summary judgmentINJUNCTIONS TO RESTRAIN WRONGFUL FOREIGN LITIGATIONGeneralJurisdiction in personam over the respondent: the general principleJurisdiction over the respondent: effect of the Lugano ConventionJurisdiction over the respondent: where the Convention does not speakGranting the injunction: a cause of action for reliefInjunction to enforce legal right not to be sued in foreign court: generalInjunction to enforce legal right not to be sued in foreign court: where England is not the chosen courtInjunction to enforce legal right: appropriateness of injunctive reliefInjunction to restrain commission of equitable wrong: generalInjunction to restrain equitable wrong: vexatious or oppressive conduct in bringing proceedings before a foreign courtInjunction to restrain equitable wrong: undermining the jurisdiction of the English courtInjunction to restrain equitable wrong: vexatious or oppressive conduct by invoking foreign procedural lawsInjunction to restrain equitable wrong: vexatious or oppressive conduct by wrongfully undermining an English judgmentInjunctions in proceedings derived from agreement for resolution of disputesInjunctions against parties standing in shoes of party to jurisdiction agreementInjunction against enforcement of foreign judgment wrongly obtainedInjunction to restrain enforcement of judgment not wrongly obtainedInjunction to restrain an arbitrationRestraining a party suing in Lugano StateRestraining a party suing in Hague Convention StateThe exercise of discretion: comity, and the public interestIf the respondent can win only by suing overseasActive case management as an alternative solutionCanadian and Australian authority and its very different approachesTiming the application for an injunctionMeasures ancillary to a final anti-suit injunctionDisobedience in face of anti-suit injunctionDAMAGES FOR LOSS CAUSED BY WRONGFUL LITIGATIONA cause of action for loss caused by wrongful litigationDamages for breach of a jurisdiction agreement: principleDamages for breach of jurisdiction agreement: assessment in principleDamages for breach of jurisdiction agreement: measure of damagesWrongful litigation before the courts of a Lugano StateDamages claim after breach by suing in Lugano/Brussels/Hague StateDamages for breach of agreement on choice of lawWrongful litigation which is not a breach of contractDECLARATORY JUDGMENT ON MERITS OF DISPUTEGeneralDeclaratory proceedings: jurisdiction in personam over the defendantDeclaratory proceedings: discretion to declare and not declarePROVISIONAL AND INTERIM RELIEFGeneralInterim remedies: relief available from an English courtInterim measures: the freezing or Mareva injunctionInterim measures: the search, or Anton Piller, orderInterim measures: interlocutory injunctionsObtaining an order granting an interim remedy: generalJurisdiction to grant interim remedies: rules of English lawJurisdiction to grant interim remedies: Brussels/Lugano/Hague issuesWhen English court has jurisdiction and case is pending before itWhen the courts of another Lugano State have jurisdiction: generalJurisdiction under English law in Article 31 casesGranting relief in Article 31 cases: exercise of powersWhen no Lugano State court has yet been seisedWhen court has Article 4 (residual) jurisdictionWhen no court has jurisdiction under the Lugano ConventionWhen proceedings are in a 2005 Hague Convention StateWhen proceedings are in a matter which is not civil or commercialWhen proceedings are before the courts of non-Lugano StateInterim remedies when pending English proceedings are stayedFurther pointsMeasures for the taking of evidenceOrders made after English judgmentsOrders made after judgments from foreign courtsRecognition and enforcement of English orders in other Lugano StatesOrders for relief granted by the courts of Lugano StatesOrders for relief from the courts of a non-Lugano StateE FOREIGN JUDGMENTSSCHEMES FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTSThe schemes by which effect is given in England to foreign judgmentsDetermining which scheme or schemes may be resorted toFOREIGN JUDGMENTS TAKING EFFECT UNDER THE BRUSSELS AND LUGANO RULESGeneralBrexitWhich European instrument applies?Brussels/Lugano rules and the recognition of judgments: generalThe Brussels/Lugano rules and ‘non-dom’ judgment debtorsRecognition of judgments under the Brussels/Lugano rulesA judgment from a courtA judgment in a civil or commercial matterJudicial decisions made in relation to arbitration: Lugano and 44/2001Judicial decisions made in relation to arbitration: Regulation 1215/2012Permitted jurisdictional objections to recognitionNon-jurisdictional objections to recognition: generalRecognition manifestly contrary to English public policyPublic policy and the overall fairness of foreign procedurePublic policy and departures from the parties’ agreementCertain judgments given in default of appearanceThe documents which serve to start the clock runningThe time which the defendant had to prevent default judgmentThe effect of irregularity in serviceFailing to challenge the default judgment after the eventJudgment irreconcilable with court’s own judgmentJudgment irreconcilable with earlier, recognised, foreign judgmentRecognition and the consequences of recognitionRecognition as the basis for issue estoppelEnforcing a judgment under the Convention or Regulation 44/2001Enforcement under the Lugano Convention or Regulation 44/2001Application for registrationAppeal against order that judgment be registered for enforcementFurther points concerning enforcementAuthentic instruments and court-approved settlementsRegulation 44/2001 and the European Enforcement OrderRecognition of judgments to which Regulation 1215/2012 appliesThe meaning of ‘judgment’ in Regulation 1215/2012Non-recognition of judgments under Regulation 1215/2012Recognition of judgment obtained in breach of agreement to arbitrateEnforcement of judgments under Regulation 1215/2012Application for refusal of enforcement under Regulation 1215/2012Miscellaneous points relating to Regulation 1215/2012FOREIGN JUDGMENTS AND THE RULES OF COMMON LAWCommon law rules on the effect of foreign judgmentsGeneralJudgments from courts distinguished from other outputsRecognition of judgments in personam: connection to the foreign courtDefendant individual present within the jurisdiction of foreign courtDefendant corporation present within the jurisdiction of foreign courtPresence in federal states and complex countriesDefendant agreeing to accept the adjudication of the foreign court: voluntary submissionVoluntary submission ante litem: by agreementSubmission in implied or indirect formSubmission post litem: by voluntary appearance to the writAppearance discounted as submission: Section 33 of the 1982 ActSubmission and steps which may convey a mixed messageSubmission post litem: by making a counterclaim or cross-claimSubmission followed by amendment of claimSubmission at a later point in proceedingsA more nuanced approach: submission by involvement?No other connection to the foreign court is sufficient for recognitionTheory and impact of the doctrine of obligationRecognition of judgments in rem: connection to the foreign courtDefences to recognition of a judgment as res judicataObjections which are not defences to recognition as res judicataForeign judgment not final and conclusive on the meritsJudgment not final and conclusive on the merits: procedural disposalsJudgment not on the merits: judgments enforcing foreign judgmentsForeign judgment contrary to agreement about settlement of disputesForeign judgment departing from an agreement on applicable lawForeign judgment obtained by fraud: the principleForeign judgment obtained by fraud: the basis for the objectionCurtailing the fraud defence as an abuse of processForeign proceedings contrary to natural or substantial justiceRecognition would be contrary to English public policyRecognition of judgment barred by Human Rights Act 1998Foreign judgment inconsistent with a prior judgmentEffect and consequences of foreign judgment entitled to recognitionAction to ‘enforce the judgment’ by obtaining English judgmentNo enforcement of foreign penal, or revenue or other public lawEnforcement barred by Protection of Trading Interests Act 1980Recognition of judgment to bar re-litigation by dissatisfied claimantRecognition of judgment against unsuccessful claimantIssue estoppel: findings made against the claimantIssue estoppel: findings made against the defendantConsequences of non-recognition of a foreign judgmentJudgments against StatesFOREIGN JUDGMENTS REGISTERED UNDER 1920 AND 1933 ACTSGeneralRegistration under the 1920 Act: countries and judgmentsRegistration under the 1920 Act: jurisdiction of the foreign courtRegistration under the 1920 Act: substantive defences to registrationRegistration under the 1920 Act: procedural pointsBrexitRegistration under the 1933 Act: countries and judgmentsRegistration under the 1933 Act: jurisdiction of the foreign courtRegistration under the 1933 Act: substantive defences to registrationRegistration under the 1933 Act: procedural pointsBrexitFOREIGN JUDGMENTS REGISTRABLE UNDER THE 1982 ACTRegistration under the 1982 ActScotland, Northern Ireland, and GibraltarJudgments under the 2005 Hague Convention on Choice of CourtRegistration of 2005 Hague Convention judgmentsSetting aside the registration of 2005 Hague Convention judgmentsOther bars to registration of 2005 Hague Convention judgmentsThe 2019 Hague Judgments ConventionAppendix 1: The Lugano ConventionAppendix 2: Hague Choice of Court ConventionAppendix 3: List of rulings of the European Court on the interpretation of the Lugano/Brussels rules
Next >