Claim relating to property within the jurisdiction: Paragraph 3.1(11)
The property gateway to jurisdiction applies where the subject matter of the claim relates wholly or principally25' to property located within the jurisdiction. It is not confined to real property situated within the jurisdiction; and it is not confined, as its predecessor had been, to cases in which the subject matter of the claim relates wholly to property within the jurisdiction of the court.
The width of this gateway may not always be appreciated. It has been held that it applies ‘to any claim for relief, whether damages or otherwise, so long as it is related to property[1] located within the jurisdiction’, and is not limited to a claim to ownership or possession of such property. There is no reason to suppose that existing intellectual property rights are excluded from this expression, though confidential information is not property, and neither are trade secrets. The relatively new words which confirm that the rule does not allow an English court to adjudicate title to, or the right to possession of, immovable property outside England (presumably concerning a case in which the claim relates non-principally to property outside the jurisdiction) forestalls any argument that the Mozambique rule has been affected by this procedural provision.
Problems may arise in cases in which the situs or location of property is a matter of debate. Particularly in the case of intangible property, such as rights to payment of a debt, or rights arising from a trust of property (whether against the trustee or a beneficiary), it is arguable, at least, that the debt/credit is situated where the debtor resides. In such a case, however, service within the jurisdiction may be possible. Whether the rule allows it to be argued, for example, that an aircraft or a vessel is situated in England if it is registered in England (no matter that the thing itself is not) remains to be seen.
Claims made about English law trusts: Paragraph 3.1(12)
The first of two gateways to jurisdiction in claims brought in respect of a trust applies if the claim is brought in respect of a trust created by the operation of a statute, or by a written instrument, or orally and evidenced in writing, so long as the trust is governed by English law. There is no requirement that the trust property be situated in England.
This widens and improves on the previous version of the rule, and has the beneficial consequence that the trusts gateway reflects a significant gateway for claims made in relation to contracts. After all, the most efficient application of English trusts law is likely to be secured if an English court has jurisdiction to apply it. Almost equally, it also means that where the trust is governed by a foreign law, the prospect of litigation being brought before the English court is lessened, though other gateways may be available in some such cases. Delicate cases may arise where an English court declines to give effect to a choice of foreign law made in the trust deed or purported to be made by way of variation, but these will be extremely rare.
- [1] Including an investment account, or the chose in action by which it is represented: Walanpatrias Stiftung v Lehman Brothers International (Europe) [2006] EWHC 3034 (Comm). 2 In Re Banco Nacional de Cuba [2001] 1 WLR 2039 (distinguished on the facts in Shahar v Tsitsekkos [2004] EWHC 2659 (Ch)), where the claim related to shares situated within the jurisdiction. Of course, the court still has a discretion as to whether to grant permission. 3 Islamic Republic of Pakistan v Zardari [2006] EWHC 2411 (Ch), [2006] 2 CLC 667 (constructive trust claim to land in England: claim falls within this rule even though land is the target of the trust as distinct from the case being one about title to land within the jurisdiction: cf C-242/92 Webb v Webb [1994] ECR 1-1717). 4 But not future patents: Fujifilm Kyowa Kirin Biologies Co Ltd v AbbVie Biotechnology Ltd [2016] EWHC 2204 (Pat), [2017] RPC 245. 5 Ashton Investments Ltd v OJSC Russian Aluminium [2006] EWHC 2545 (Comm), [2007] 1 Lloyd's Rep 311; Vestel Elektronik Sanayi ve Ticaret AS v HEVC Advance LLC [2019] EWHC 2766 (Ch). For the view that a domain name is property, and that it may be within the jurisdiction, see Tucows.com Co v Lojas Renner SA (2011) 106 OR (3d) 561 (Ontario CA). 6 Force India Formula One Team Limited v 1 Malaysia Racing Team SDN BHD [2012] EWHC 616 (Ch), [2012] RPC 29, [376]. The jurisdictional significance of this is reduced by Para. 3.1(21), on which see below, para. 24.32. 7 Shenzhen Senior Technology Material Co Ltd v Celgard LLC [2020] EWCA Civ 1293. 8 Formerly RSC Ord. 11, r. 1(1 )(j). 9 Chellaram v Chellaram [2002] EWHC 632 (Ch), [2002] 3 All ER 17. The material date is the date of the application for permission, not any earlier date. For how to determine the governing law, see Re
