Cases where jurisdiction at common law does not and cannot exist
There are some persons who are entitled to immunity from the jurisdiction of the English courts, though this immunity may be waived. There are also matters in which the common law considers that an English court has no jurisdiction to adjudicate the substance of the claim, on the approximate basis that such cases are not justiciable in an English court; and where that is so, there is no question of service, or submission, conferring jurisdiction, or of any waiver being effective.
Claims depending on title to foreign land: the Moçambique rule
The common law considers that an English court has no jurisdiction to adjudicate a claim whose substance depends on establishing title to foreign land. The rule is sometimes put in terms of the court having no jurisdiction to resolve a dispute over title to foreign land, but that is inaccurate: the House of Lords confirmed that if the claim depends on title to foreign land, the court has - like it or not (and many do not)
- no jurisdiction to try it, whether or not title is actually in dispute,[1] and whether or not the defendant is willing to defend the claim in the English court.
The fundamental statement of and theoretical justification for the rule lies in the decision of the House of Lords in British South Africa Co v Companhia de Mozambique* Theory aside, it also reflects the practical fact that only at the situs of the land can there be a fully effective determination of title. Even if an English court were to hear the case, and were to apply the law which a court at the situs would itself have applied, it is unlikely that its judgment will be effective where the land is. This is because it will still have been a judgment given by a court with, as it appears to the judge at the situs of the land, no jurisdiction to adjudicate on the issue at all; this is the pragmatic reason why the English court has no jurisdiction to try questions which dispute title to foreign land. It might have been argued that where there was no real dispute as to title, but damages were claimed, for example for trespass to land, this rationale does not apply. But in Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd* the House of Lords refused to draw such a distinction, and that was that so far as the common law was concerned. Where the English court has no jurisdiction over the subject matter of the claim, the purported personal submission of the defendant to the jurisdiction of the court is irrelevant. The point is underscored by the fact that in Hesperides Hotels v Aegean Turkish Holidays,*0 claims for damages for trespass, and for conspiracy to trespass, on foreign land were struck out, while the claim for damages for trespass to chattels on the land was unaffected and remained in the writ for adjudication.
In addition to the two exceptions to the absolute character of the Mozambique rule, which are examined below, some consider the rule to have outlived its usefulness. The Supreme Court exhibited little obvious enthusiasm for it when it expressed the view that it had been ‘undermined’, that it had no application to cases founded on the infringement of foreign copyright in any event, and that its application to patents was not before them for decision. More recently, the Court of Appeal went out of its way - out of its way, because the rule was plainly irrelevant to the claim before it -to suggest that the rule had somehow become narrower than it had once been, and that it was in some sense analogous to the rule now in Article 22(1) of the Lugano Convention, which applies only when proceedings have as their object rights in rem in immovable property in another Lugano State. All one can say to that is that it would have come as news to Lord Wilberforce. Neither case gives any reason to question (as distinct from lament) the rule. As will be seen,[2] in making its considered statutory exception to the rule, Parliament legislated against the background of a unanimous decision of the House of Lords on which the ink was barely dry. It is to be assumed that it knew precisely how and how far it wished the common law exclusionary rule to be pruned.
- [1] Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1979] AC 508. In that case, despite appearances, title to land was not in dispute, because if the court ignored as illegal the pretended laws of the Turkish occupation forces in the north of Cyprus, as it was bound to do, there was no dispute about whose the land was. 2 [1893] AC 602; approved and applied in Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [ 1979] AC 508. 3 It reflects an ancient principle that actions concerning title to foreign land were local and not transitory, and therefore had to be brought where the land was. This may be historically interesting, but is of no practical significance today; it is doubtful that it could today be regarded as a purely procedural principle which the court could rewrite if it wished to. 4 A claim alleging trespass to chattels on the land was allowed to proceed. 5 [1979] AC 508. 6 [1979] AC 508. 7 Lucasfthn Ltd v Ainsworth [2011] UK.SC 39, [2012] 1 AC 208: on the point concerning patents, see [102], [107]. 8 Hamed v Stevens [2013] EWCA Civ 911, [2013] ILPr 623. The judgment, at [11], is plainly wrong, as in Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1979] AC 508 Lord Wilberforce was clear that the decision of the court in that case did not involve any extension of the exclusionary rule. The fact
- [2] Paragraph 21.08, below. 2 See, for example, Pattni v AH [2006] UKPC 51, [2007] 2 AC 85. 3 (1750) 1 Ves Sen 444. 4 Equally, it does not lack jurisdiction to administer an estate just because the estate contains foreign land: Nelson v Bridport (1846) 8 Beav 547. 5 Minera Aquiline Argentina SA v IMA Exploration Inc [2008] 10 WWR 648; cf Catania v Giannattasio [ 1999] I LPr 630, in which the Ontario Court of Appeal declined to apply the exception to a case concerning the validity of a deed of grant. 6 Including a claim is for the rescission of a contract for the sale of land and the repayment of sums paid under it: Hamed v Stevens [2013] EWCA Civ 911, [2013] ILPr 623. 7 Assuming for the sake of argument that there is such a principle of equity in English law. 8 Re Polly Peck International Pic. In fact, the Court considered that there was no basis in English law for the imposition of such a trust in any event.
