A THE LAW AND THIS BOOK

GENERAL

Civil jurisdiction and judgments in the age of Brexit and Covid

The United Kingdom amputated itself from, and legislated to cease to be a Member State of, the European Union on 31 January 2020. This did not mean that, at 11pm on that date, those rules of European law, rules of English law designed to operate because of European law, and decisions of courts interpreting those rules of law, ceased to be relevant to English lawyers. There are several reasons for this. First, a Withdrawal Agreement provided, in effect, that the law with which this book is concerned remained unchanged from the moment before Exit Day until the ‘completion’ of the ‘Implementation Period’, which primary legislation fixed as 11pm on 31 December 2020. Second, legal proceedings which were instituted before Completion Day were and remain governed by the rules of civil jurisdiction that were in force on the date of their institution. Third, the effect in the United Kingdom of judgments from the courts of other Member States as such, given in proceedings which were instituted before Completion Day, is to be governed by the judgment-recognition rules that applied in England on the date the foreign proceedings were instituted, even though the judgment in question may have been given years after that date.

Fourth, throughout the course of preparing the text of this edition, while Brexit and Covid plagued the land,' there was no certainty that the Completion Day would actually come at the end of 2020: as Parliament is sovereign,^[1] it could (if allowed to meet) postpone, as it has postponed before, the date which marks the end of the journey out of the European Union, at least if the European Union were to agree. Fifth, it remains unclear whether the ‘close relationship’ which the United Kingdom has said that it wishes to have with the European Union will include the United Kingdom adhering in its own right to the 2007 Lugano Convention. The Private International Law (Implementation of Agreements) Act 2020 provides a legislative basis for such a development if the conditions were to arise. The United Kingdom has applied to accede to the Lugano Convention, but the outcome will depend on the unanimous agreement of the Contracting Parties, the biggest of which is the European Union whose immediate response was chilly. The sixth reason is that the process of acting in accordance with the result of the 2016 referendum has proved to be so incoherent that it would be daft to claim to be able to describe, clearly and precisely or at all, the future state of the law.

In the light of that uncertainty, we will try to summarise the sources of law which make up or made up the rules of European Union law on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. We will summarise the sources of law which make up the rules of English law which apply to determine the jurisdiction of courts and the effect of foreign judgments in those cases in which European law does not prescribe the rules. We will address the relationship between the two sets of rules, even though it seems probable that this will be altered during, and possibly after, the process of implementation of the Withdrawal Agreement. And we will describe, within the limits of what is possible, the contents of the law after the completion of the ‘implementation period’. In other words, this book anticipates the accession of the United Kingdom to the Lugano Convention, on the footing that if there is to be any longer-term cooperation with Europe, either this or a ‘bespoke’ agreement drawn along pretty similar lines is likely to be it.

General introduction

Fifty years ago, a statement of the rules that defined and regulated the jurisdiction of an English court could be made in full and complete detail, in a very modest number of pages. If the defendant was in England and was served with the writ, the fact of service founded the jurisdiction of the court; and if the court had jurisdiction, it would exercise it. If the defendant was not in England, making service upon him would depend on first obtaining leave,^[2] the process for doing (or for subsequently defending) which was a little more involved; but by and large a single set of rules applied to all defendants alike, and to all actions in personam.

Membership of the European Union brought with it (if not all at once) a set of rules to determine the jurisdiction of courts and the effect of judgments which was as complicated as it was different. Steps were taken to harmonise the rules governing the jurisdiction of courts and the effect of judgments from those courts. A derivative set of rules was made to cover the States which remained party to the European Free Trade Association (EFTA) to align their law on jurisdiction and judgments with the law of the Member States; and the internal jurisdictional law of the United Kingdom was altered to resemble, as between England and Wales, Scotland, and Northern Ireland, the rules of international jurisdiction by which the United Kingdom was bound as a Member State. But the common law and parliamentary rules were not eradicated, just pushed out of some areas in which they used to operate.

In some places, these European instruments did not aim to stipulate the precise jurisdictional powers of national courts, but authorised and directed the application of domestic legal rules. The result is that the traditional jurisdictional rules of the common law served two distinct purposes. In cases which fell right outside the domain of these European instruments they always were the sole source of the law on jurisdiction. But in cases within the domain of those instruments or any of them, into which they are co-opted or incorporated by reference, they operate as rules of residual Convention or Regulation jurisdiction, and where this happens, their content and their operation is modified.

In fact, before all this European development got going, the English courts had embarked on a radical reassessment of their basic assumptions about the law and exercise of common law jurisdiction. Until 1974 it was assumed, almost without question, that a claimant was entitled to decide whether a defendant would be summoned to court in England, and that a defendant had practically no say in the matter. In 1974 it was finally admitted that this was just too one-sided to be proper. Not only did it pay too little attention to the fact that a defendant should have a right to be heard on the issue of where he should defend himself,^[3] but it also paid less attention than it should have to the role of the court, acting in the public interest to regulate the conduct of litigation with a cross-border element. A series of cases refining the idea of the ‘appropriateness’ of an English forum, in the sense of place for trial, emerged from the House of Lords, in a superb illustration of how a court with inherent jurisdiction may refurbish its jurisdictional rules without the need for a legislature to be involved. The result was, and is, that as a matter of common law, it is necessary, but is no longer sufficient, to catch up with one’s defendant and serve process upon him. Though this service gives the court jurisdiction in a technical sense, if the defendant disputes it - that is, he takes the step necessary to dispute the jurisdiction itself, or the appropriateness of its exercise - the court must rule on the jurisdictional issue, and may rule in such a way that the claimant is left with no practical alternative to bringing his case before the courts of another country.

This book attempts to state the jurisdictional rules of the English courts to show how the various systems of jurisdiction organise themselves and fit together, and to show which rules have priority over which others. Part B examines the jurisdictional rules whose effect in England depended and still depends on various European treaties, Conventions, and other instruments. Part C explains what happens in those cases in which the traditional jurisdictional rules of the common law and parliamentary legislation continue to apply, whether residually within the scope of Convention or Regulation law or outside it altogether: of course, if or when the European instruments cease to apply in the United Kingdom, this law described in this chapter will move to the centre of the stage. Part D" deals with various matters which may loosely be grouped together as procedural: the rules for serving process and for objecting to jurisdiction; strategies for practising and preventing ‘forum shopping’; and interim and interlocutory measures which may be obtained or enforced.

It is often as important to know the consequences of taking (or defending, for that matter) proceedings in a foreign court. In deciding where to sue, close attention will presumably be given to whether the judgment is capable of being enforced elsewhere.

Part E^[4] explains the various schemes which exist to provide for the recognition and enforcement of foreign judgments in England.

• [1] The other two horsemen of the apocalypse cannot be far away. 2 European Union (Withdrawal Agreement) Act 2020, Section 38.
• [2] Unless specific legislation makes provision for it to be done, it is contrary to common law to serve a ‘claim form’, or ‘process’ (formerly, a ‘writ’) out of the jurisdiction without the leave (now, ‘permission’) of the court. 2 References to ‘England’ in this book are, unless the contrary is stated (which it almost never is), to be read as ‘England and Wales’. 3 The detail of which is examined in Part C.
• [3] If the issue is seen as where the claimant's claim should be litigated, it seems to follow that the claimant should be entitled to decide where to prosecute it. But if instead it is seen as the parties' dispute, it is unclear why the claimant alone should decide where to have it adjudicated. 2 And, to the extent that the Lugano Convention applies identical rules to the civil jurisdiction of the courts of Member States, to describe the rules as they equally apply there. 3 In previous editions, this was all done in a single Chapter 2, which had become unwieldy and has therefore been broken down into its component parts. 4 The rules governing jurisdiction as between the parts of the United Kingdom are presented as Part B/C, to reflect the fact that they were made to serve, and may yet continue to serve, the purposes otherwise dealt with in Part B and Part C. 5 In previous editions, this was all done in a single Chapter 4, which had become unwieldy and has therefore been broken down. 6 In previous editions, this was all done in Chapters 5 and 6, which have been reorganised.
• [4] In previous editions, this was all done in a single Chapter 7, which has been broken down and reorganised. 2 Earlier editions had a chapter on certain aspects of arbitration, but the complexity of the law on judicial adjudication is such that it has had to be excluded on grounds of space. 3 This will be referred to, in most contexts, as ‘the European Court’, or as ‘the Court’, with an upper case initial, to underline the fact that it, and it alone, had the power to give rulings on the interpretation of EU Regulations which were authoritative and binding on all Member States. 4 Published in the Official Journal of the European Communities: [2012] OJ L351/1. This is described as a ‘recast’ of the original Brussels I Regulation, Regulation 44/2001, [2001] OJ L12/1. 5 See Opinion 1/03 Lugano Opinion [2006] ECR 1-1145.