Claims against a defendant domiciled in England: Paragraph 3.1(1)

The domicile gateway to jurisdiction applies if relief is sought against a person (whether individual, corporate or a partnership) domiciled within the jurisdiction. Domicile, in this context, must surely mean domicile as defined by and for Civil Jurisdiction and Judgments Act 1982 and not domicile according to its weird and wonderful common law definition. In most cases in which the defendant is domiciled in England the court would have jurisdiction under the Lugano Convention,^[1] so this gateway to jurisdiction is largely confined to those cases where the claim falls outside the Convention (for example, because it is not in a civil or commercial matter), and to those cases in which the jurisdiction of the English court is governed by Article 4 in circumstances within the Convention where the residual jurisdictional rules of national law - including rules on service out of the jurisdiction with permission - continue to apply.

Claims for an injunction: Paragraph 3.1(2)

The injunction gateway to jurisdiction is available if an injunction is sought to order the defendant to do, or to refrain from doing, an act within the jurisdiction.

The injunction must be a substantial part of the relief sought; it is not permissible to advance a spurious claim for an injunction as a peg upon which to hang a claim for damages or other relief, or to make a claim in which only some of the acts to be restrained were located within the jurisdiction. While it is easy to see that an order that the defendant not do something which he is threatening to do within the jurisdiction is within this jurisdictional rule, such as to infringe a patent within the jurisdiction, it is more difficult to argue that it applies if the claim is that he should not perform an act anywhere except England. If such a claim could be presented as one in which it is sought to order the defendant to do an act, if anywhere at all, within the jurisdiction, an application for an injunction to restrain the plaintiff in foreign proceedings might conceivably be brought within this gateway; but no case establishes this to be the law, and it would seem to extend the provision well beyond its natural meaning.

An application for an order that a defendant account within the jurisdiction was held not to fall within a predecessor version of the injunction gateway. An order for the payment of money was considered to fall outside the natural meaning of an injunction; that seems correct.

It was held in relation to an earlier version of this provision^[2] that it applied only to an injunction sought in relation to substantive rights and was for that reason inapplicable to proceedings brought to obtain a freezing order against a defendant who was out of the jurisdiction but who had assets within the jurisdiction. This conclusion was supported by the fact that RSC Order 11 allowed service to be authorised ‘if in the action begun by the writ ... an injunction was sought ...’. As an application for a freezing order did not seek to determine substantive rights, and did not constitute an action, it did not fall within the rule as it then was. The current version of the rule might be taken to have removed this limitation, so that a court could grant permission to serve a claim form out of the jurisdiction if a claim were made for an injunction even if not in relation to substantive rights, thereby reversing the effect of Mercedes Benz AG v Leiduck *¹ but this view did not commend itself to the court in Cool Carriers AB v HSBC Bank USA , As there is a separate gateway for service out of a claim form in which an interim remedy is claimed, this question may now be of little practical importance.

There is no dedicated gateway to jurisdiction for a claim for a final anti-suit injunction. If such a claim is founded on a contractual right not to be sued in a foreign country, sub-paragraph (6) may be available to the claimant; but if the basis for the application for the injunction is that the bringing of the proceedings is vexatious, oppressive, or unconscionable, there is no obvious gateway to jurisdiction, even if England is the natural forum for the claim to be brought.

• [1] Where, therefore, permission to serve is not needed: CPR r. 6.32 (service in Scotland or Northern Ireland), CPR r. 6.33 (service outside the United Kingdom). 2 Formerly RSC Ord. 11, r. 1(1 )(b), which added the words ‘whether or not damages are also claimed in respect of a failure to do or the doing of that thing'. Their omission is not significant. 3 It cannot be used to apply for a worldwide injunction: Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc [2013] EWHC 2968 (Ch), [2014] 1 All ER (Comm) 654, [61]. 4 But if the claim is not spurious, the fact that it is brought to establish jurisdiction in the court which the claimant prefers is irrelevant: Fujifilm Kyowa Kirin Biologies Co Ltd v AbhVie Biotechnology Ltd [2016] EWHC 2204 (Pat), [2017] RPC 245. 5 Rosier v Hilhery [1925] 1 Ch 250; GAF v Amchem [1975] 1 Lloyd’s Rep 601. 6 Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc [2013] EWHC 2968 (Ch) (worldwide injunction not within the sub-paragraph): in this respect the sub-paragraph does not reflect the way in which sub-paragraph (9) is read, which is satisfied if some acts or damage are located within the jurisdiction, even though other acts and damage are not: see below, para. 24.18. 7 Magnesium Elektron Ltd v Molycorp Chemicals <£ Oxides (Europe) ¿/
• [2] RSC Ord. 11, r. 1(1 )(b). 2 Then known as a Mareva injunction. 3 Mercedes Benz AG v Leiduck [1996] 1 AC 284. 4 [1996] 1 AC 284. 5 [2001] 2 Lloyd’s Rep 22. 6 Paragraph 3.1(5). 7 For example. Shipowner’s Mutual P&I Association (Luxembourg) v Containerships Denizcilik Nakliyat ve Ticaret AS (The Yusuf Çepnioglu) [2016] EWCA Civ 386, [2016] 1 Lloyd's Rep 641, where it was derived, but in a rather unconvincing way, from an arbitration agreement to which the respondent to be restrained was not party: see further Briggs [2016] LMCLQ 327. 8 Formerly RSC Ord.l 1, r. l(l)(c). There is no basis for the submission that Paragraph 3.1(3) is any narrower than sub-rule (c) had been: United Film Distribution Ltd v Chhabria [2001] EWCA Civ 416, [2001] 2 All ER (Comm) 865, applied in Trumann Investment Group Ltd v Société Générale SA [2004] EWHC 1769 (Ch). 9 [2011] UKPC 7, [2012] 1 WLR 1804.