C COMMON LAW AND STATUTORY JURISDICTION

COMMON LAW PRINCIPLES OF JURISDICTION

Introduction

In this Part of the book we examine what are sometimes called the traditional,^[1] or common law, or non-Lugano, rules of jurisdiction. Whatever they are called - and the nomenclature seeks to make no point at all - they apply in two discrete areas which must be dealt with separately. They apply in cases which fall wholly outside the domain of the Lugano Convention, because they always did. We tend to refer to them in this context as ‘common law rules’, even though they are in fact an amalgam of common law, statute, procedural rule and inherent judicial power. They also did apply, do apply, or may apply (as the case may be) where this is provided for by Article 4 of the Lugano Convention. In this context they may be called ‘residual rules’ of Lugano jurisdiction. In the former case, the Convention makes no claim at all to regulate the jurisdiction of courts, and the jurisdictional rules set out in this chapter apply without modification unless some other statutory provision displaces them, such as the particular rules which may apply in insolvency proceedings, family law matters, and so on. In the latter case, the result of taking up and incorporating jurisdictional rules from national law into the Convention is that the rules undergo certain modifications, and their character is slightly changed: for example, they become subject to the provisions of the Convention on lis alibi pendens. But as they are, in the main, the rules which applied before the United Kingdom joined the European Union, this Chapter calls them the ‘traditional rules’. As said, though, the nomenclature does not aim to make a point.

This Part examines these traditional jurisdictional rules. It does not deal with the provisions of insolvency law or family law, as the rules which apply in these particular areas are more appropriately examined in specialist works. It therefore limits itself to the traditional rules of the common law, as modified by parliamentary legislation, and Civil Procedure Rules made to accompany them.

General

The rules themselves can be summarised very simply: the jurisdiction of the court depends upon service of process. Whereas the scheme of the rules examined in Part B of this book is that when the Lugano Convention provides that the court has jurisdiction the claimant is entitled to serve the claim form, the common law sees the issue in mirror image: where the claimant has served the claim form, with permission where this is required, the court will have jurisdiction.

The common law question then becomes one of how and when the claimant may serve process upon a defendant. If the defendant is present within the territorial jurisdiction of the court, the claimant has a right to serve him there and then. If the defendant is not within the territorial jurisdiction of the court, and has not appointed an agent within the jurisdiction to accept service of process on his behalf, the claimant has no right to serve him.^[2] Instead, permission must be obtained from the court for service to be made out of the jurisdiction, unless legislation provides that the claim is one in which service out of the jurisdiction may be made without it.

A defendant who submits to - appears and does not object to - the jurisdiction of the English court confirms the court’s personal jurisdiction over him: any points which might have been raised to dispute that jurisdiction, aside from the points of subject matter jurisdiction examined below, are made redundant by the defendant’s voluntary act. Submission may take several forms. The most obvious is by acknowledging service of process and not invoking the procedure to dispute the jurisdiction of the court, which is examined in Chapter 27. A party who appoints someone, often a solicitor, with authority to accept service of process within the jurisdiction submits to the jurisdiction." A litigant who had previously invoked the jurisdiction of the court will usually be taken to have submitted generally to the jurisdiction of the court: he will not be heard to say that he submitted for some purposes convenient to him, but not for others which he finds to be somewhat less congenial, though common sense places limits on the argument.

A person who has been served may fail to tick the box on the form which would indicate an intention to dispute the jurisdiction, but this may not be taken as submission. Many people fail to tick boxes, by oversight, and a missing tick is not conclusive. So long as a defendant disputes the jurisdiction within the time frame provided by the rules, he will not be taken to have submitted to the jurisdiction if he has done nothing unequivocal to waive the privilege, given to all defendants, of disputing the jurisdiction of the court over him. A failure to tick a box on a form is not an unequivocal act.^[3] On the other hand, a defendant who ticks the box on the form acknowledging service to indicate his intention to dispute the jurisdiction, but who fails to follow through with an application to that effect, may be held to have submitted after all.

Matters stand differently for the defendant who has been served out of the jurisdiction but who objects to the jurisdiction of the English court. He may dispute the jurisdiction of the court, and may even go through the claim form and dispute jurisdiction on a claim-by-claim basis, because the court’s grant of permission to serve out is liable to be assessed separately for each distinct claim made. However, once a defendant has submitted to the jurisdiction, only in rare cases will he be permitted to have second thoughts and withdraw the submission. In Somportex Ltd v Philadelphia Chewing Gum Corp' an American company was served out of the jurisdiction, and did the equivalent of acknowledging service without indicating an intention to dispute the jurisdiction. In due course it applied to be allowed to withdraw the appearance, to be treated as though it had made no response whatever to the writ served on it. The Court of Appeal considered that as the original decision had been taken on professional advice, a change of heart or of professional advice was not a sufficient reason to allow the appearance to be withdrawn. The courts have since followed the same general line, refusing to allow a party who has submitted to the jurisdiction, but who now sees some perceived advantage in changing its mind, to be treated as not having submitted after all. Indeed, in a number of cases it has expressed its refusal in notably strong terms.

• [1] Except for the fact that much of the law is modern. 2 Except for the fact that much of the law is statutory, or at least contained in Civil Procedure Rules. 3 For the proposition that ‘jurisdiction’ is a word with many meanings, and that care needs to be taken to identify the particular sense in which it is being used - a warning which has been issued on many occasions - see for example Fourie v Le Roux [2007] UKHL 1, [2007] I WLR 320, [25]. 4 In fact, the common law rules applied to cases which fell outside the domain of the Brussels Convention, Brussels Regulation, and recast Brussels Regulation as well as the Lugano Convention. 5 See above, Chapter 18.
• [2] However, if the agreement between the parties allowed the claimant to appoint a receipt-of-service agent ‘for’ the defendant who had refused to do so, service on that person within the jurisdiction will obviously be good service: Banco San Juan International Inc v Petroleos de Venezuela SA [2020] EWHC 2145 (Comm). 2 There is rather little such legislation; see below, Chapter 24. 3 An absence of subject matter jurisdiction, however, cannot be cured (is not affected) by the purported submission of the parties: see further below. 4 Derby & Co Ltd v Larsson [1976] 1 WLR 202 (HL); Republic of Liberia v Gulf Oceanic Inc [1985] 1 Lloyd's Rep 539; Balkanbank v Taher [1995] 1 WLR 1067; SMAY Investments Ltd v Sachdev [2003] EWHC 474 (Ch), [2003] 1 WLR 1973. 5 But the extent of the submission must be limited by the scope of the authority given. 6 Sphere Drake Insurance pic i> Gunes Sigorta AS [1987] 1 Lloyd’s Rep 139. Questions of construction of the authorisation will be dealt with objectively, as though the document were a commercial contract: Actavis Group HF v Eli Lilly & Co [2013] EWCA Civ 517, [2013] RPC 37. 7 Republic of Liberia v Gulf Oceanic Inc [1985] 1 Lloyd’s Rep 539; Balkanbank v Taher [1995] 1 WLR 1067; Glencore International AG v Exter Shipping Lt
• [3] IBS Technologies (Pvt) Ltd v APM Technologies SA (No 1) (unrep.) 7 April 2003. 2 Maple Leaf Macro Volatility Master Fund v Rouvroy [2009] EWHC 257 (Comm), [2009] 1 Lloyd’s Rep 475, [186]—[187]. If it is contended that the defendant ticked the box to indicate an intention to dispute the jurisdiction but then acted in such a way as to show that he had abandoned that position, the conduct to which the claimant points will need to be ‘unequivocal’: SMAY Investments Ltd v Sachdev [2003] EWHC 474 (Ch), [2003] 1 WLR 1973, [41]; Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd [2009] EWHC 1839 (Ch), [29]; Zumas Nigeria Ltd v First City Monument Bank Ltd [2016] EWCA Civ 567. 3 Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1: it is impermissible to obtain service out in respect of a claim which, standing alone, would not have justified a grant of permission by the device of including it in a claim form which does contain a claim or claims for which permission is available. However, CPR Pt 6, para. 3.1 (4A) modifies this in practice: see below, Chapter 24, paras 24.06, 24.12. 4 [1968] 3 All ER 26. In due course the US courts held that the English default judgment, which was entered when the defendant walked away from the English proceedings, was entitled to be enforced in the US: Somportex Ltd v Philadelphia Chewing Gum Corp 453 F 2d 435 (1971). See also Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA Civ 226, [2015] 2 Lloyd’s Rep 15, which suggests that CPR 10 PD 5.4 may mean that the court may now more easily give permission to withdraw an appearance. 5 That is to say, it entered a conditional appearance, but which it later sought to withdraw altogether. 6 In fact, it did give that impression to begin with, but then changed its mind. 7 Evidently the reason had to do with the enforceability of an English judgment in the United States. 8 Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1; CNA Insurance Co Ltd v Office Depot International ( UK) £/