CHAPTER TWO – THE INTRODUCTION TO AND THE GENERAL MEANING OF JURISDICTION
The term jurisdiction is a term which is often used by lawyers and appears a deceptively simple term. Whilst overlapping, a particular clear distinction must be drawn between two uses of the term as set out below.
The first use of the term jurisdiction is in a physical sense referable to a particular territory where a Court has the power to compel parties to be brought before it. For example, it might be said that an individual within England and Wales is within the jurisdiction of England and Wales. Indeed CPR r 2.3 confirms that jurisdiction means, unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales. Further, CPR Part 6 Section Two refers to the service of the claim form in the jurisdiction and Section Four refers to the service of the claim form and other documents outside of the jurisdiction of England and Wales. One can see the use of the term jurisdiction as referable to physical location in a particular territory where the Court’s power to compel parties to be brought before it operates.
However, whilst the aforementioned use of the term is important to place parties within the boundaries of a particular legal territory and understand whether proceedings ought to be served within or outside the particular legal territory, for the purposes of the principles of conflict of laws there is a more prominent use of the term jurisdiction, namely referring to the Court’s power to entertain proceedings in England and Wales by compelling parties to be brought before it. The question here is whether the Court has the power to deal with a particular case at all (i.e. whether the Court has jurisdiction over a particular party and case). In other words, jurisdiction here is the key that unlocks the door to the Courtroom and, where a foreign element is involved, this is the first thing that the Court needs to establish in order to hear the matter at all.
Looking at the meaning of jurisdiction in this latter and more prominent sense, there are two important sub-questions. The first is whether the Court has the power to compel the party to be brought before it to deal with the matter in question at all. This is the question of the existence of jurisdiction. The second is whether or not the Court ought to exercise the power. This is the question of exercise of jurisdiction. This was neatly summarised by the High Court in IMS S.A. and Others v Capital Oil and Gas Industries Limited [2016] EWHC 1956 (Comm) (“IMS”) at [27]-[28] as follows:-
“It is well known that in the context of challenges to jurisdiction, reference to the Court’s jurisdiction can be a shorthand for two different concepts: one is the Court’s jurisdiction to try the claim on its merits; the other is the Court’s exercise of its jurisdiction to try the claim (see, for example Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806 at [28]). Leaving aside cases covered by the Lugano Convention and recast Brussels 1 Regulation, service of process is the foundation of the Court’s jurisdiction to entertain a claim in personam, and accordingly the Court has such jurisdiction only where the defendant is served, in England or abroad, in the circumstances authorised by, and in the manner prescribed by, statute or statutory order (typically the Civil Procedure Rules): see Dicey Morris and Collins The Conflict of Law 15th ed. Rule 29. Where there has been no such service, the Court does not have jurisdiction. Where such jurisdiction has been established by service of process, the Court may nevertheless decline to exercise its jurisdiction, for example on grounds of forum non conveniens or lis alibi pendens” ([27]).
“The two types of challenge are logically and juridically separate and distinct. Moreover they typically involve different forms of relief. Where there has been no valid service necessary to found in personam jurisdiction, the Court will set aside service and set aside the claim form. On the other hand where the challenge is to the exercise of jurisdiction on grounds of forum non conveniens, the appropriate relief is usually a stay of proceedings, which is capable of being lifted, if appropriate in the light of subsequent events” ([28]).
The above demonstrates that the issue of the existence of jurisdiction is largely governed and determined by the application of the service rules contained in CPR Part 6 and the principles that have stemmed from the same. The Court’s power to entertain proceedings in England and Wales is determined on the basis of service of proceedings bringing a party within the jurisdiction of the Courts of England and Wales. This is usually not controversial where a party is located in England and Wales and is able to be served inside the jurisdiction in accordance with CPR Part 6 Section Two and Practice Direction 6A. However, where a foreign element is involved, it is likely that a party will be required to be served with proceedings outside the jurisdiction given the nature of the dispute and the likely location of the defendant outside England and Wales. CPR Part 6 Section Four and Practice Direction 6B governs the rules applicable to service of proceedings outside the jurisdiction. In other words, the Court only has power to compel a party to be brought before it to try the case if, inter alia, that party has been validly and effectively served. The rules and principles of jurisdiction are examined in full in Chapters Three to Five.
However, as set out above in IMS, even if the defendant has been validly and effectively served and the existence of the Court’s jurisdiction is satisfied, this may not be the end of the matter. There may arise the second sub-question, namely whether or not the Court’s jurisdiction ought to be exercised (i.e. whether the Court should compel a party to be brought before it to try the case). This sub-question is likely to come into play in one of two circumstances – the first is where a defendant is validly and effectively served in the jurisdiction of England and Wales but challenges the Court’s jurisdiction by arguing that the Courts of England and Wales is not clearly the appropriate forum to bring the claim (known as forum non conveniens) and the second is where the claimant seeks permission to serve proceedings outside the jurisdiction of England and Wales which requires the claimant to also satisfy the Court that England and Wales is the proper place in which to bring the claim (see CPR r 6.37 (3), known as forum conveniens).
These requirements of jurisdiction (specifically in the context of property related disputes where foreign immovable property is located abroad) will be examined in further detail in Chapters Three to Five. This will examine the key rules, principles and law applicable to the aforementioned service requirements under CPR Part 6 and challenges to the existence and exercise of jurisdiction under CPR Part 11.
It is always important to bear in mind that the principles relating to jurisdiction differ to the principles governing the law that applies to a dispute where a foreign element is involved. Just because an English Court has jurisdiction does not necessarily mean that English Law will be applied to the dispute at hand where a foreign element is involved. The principles relating to applicable law is dealt with in Chapters Six to Eight.
Summary of Key Practical and Tactical Tips
- It is important to understand the meaning of jurisdiction, not just as the location or territory of the Court, but as the power of the Court to compel a party to be brought before it to try a case.
- It is important to maintain a separation between the existence of jurisdiction and the exercise of jurisdiction. The existence of jurisdiction is the existence of the Court’s power to compel a party to be brought before it to try a case whereas the exercise of jurisdiction is the Court’s use of the said power.
- Equally, it is important to maintain a separation between two sub-questions that arise from the meaning of jurisdiction as the power of the Court to compel a party to be brought before it to try a case. The first sub-question is whether the Court can compel a party and try a case and the second sub-question is whether the Court should compel a party and try a case. These are distinct questions with different tests and remedies to be applied. This will be considered further in Chapter Five.
- However, service of proceedings is the basis upon which the Court’s jurisdiction is partly founded. If service is not validly effected, the Court’s jurisdiction falls away. It is important to ask whether the defendant has been properly and effectively served under CPR Part 6. One must carefully identify at the outset whether the case is a ‘service in’ or ‘service out’ case. Equally CPR Part 11 governs the procedural rules for challenges to jurisdiction and works in tandem with CPR Part 6 (and can be analysed in a single framework). This is considered further in Chapter Five.
- If confronted with the question of whether the Court should compel a party and try a case, it is vital to understand whether you need to mount the argument that England and Wales is the proper forum (forum conveniens) or whether you are faced with the argument that England and Wales is not the proper forum (forum non conveniens). The detail of this is considered further in Chapter Five.
- It is important to understand the implications of different challenges to the outcome. If a defendant successfully challenges jurisdiction on the grounds of forum non conveniens, the Court is likely to stay proceedings. If a defendant successfully challenges jurisdiction on the grounds that no jurisdiction exists because there has been no validly effected service, the Court is likely to set aside any order granting permission for service and/or set aside the claim form. The detail of this is considered further in Chapter Five.
- Do not confuse jurisdiction with applicable law. A Court may have jurisdiction but apply foreign law to the case at hand. It is important to keep this distinction clear in any analysis of a case with a foreign element.
- It is also important to anticipate a jurisdictional challenge in any case with a foreign element. For example, in the context of this book, property that is located abroad.
- Jurisdiction is the first port of call in any analysis of a case with a foreign element. One must remember that if jurisdiction is not established or there is a successful challenge, the claim fails at the outset with potential heavy costs and time wasting consequences. Understanding and anticipating jurisdictional issues from the outset will prevent these consequences coming into fruition.