The English rules on jurisdiction in a European context are largely governed by European Union legislation. Those rules govern how one sues European defendants in Europe. Such questions are generally governed by national laws (which, in England, are mostly set down in the CPR). The following questions arise:
What are the governing European instruments?
There are two key European legislative instruments. The first is Regulation (EU) No. 1215/2012 (the “Recast Brussels I Regulation”, sometimes also called Brussels Ia or Brussels Ibis), which has replaced Council Regulation (EC) 44/2001 (the “Brussels I Regulation”) for proceedings commenced on or after 10 January 2015. That regulation, in turn, replaced the former Brussels Convention as from 1 March 2002. The Recast Brussels I Regulation applies to “civil and commercial matters” in the courts of EU member states, with certain exceptions, which are set out in Article 1.
The second instrument is the Lugano Convention, which created a regime operating in parallel with the Brussels Convention (and later, the Brussels I Regulation via the Lugano II Convention). It applies to the three states which are members of EFTA, as opposed to the EU: Iceland, Norway and Switzerland. The jurisdictional provisions of the Lugano Convention are basically the same as those in the Brussels I Regulation.
An amended version of the Lugano Convention (sometimes described as the “Lugano II Convention”) was adopted in 2007 to reflect the changes in the Brussels I Regulation, which came into effect for Norway in 2009 and Switzerland and Iceland in 2011. Importantly, however, no new convention has yet been adopted to implement the changes in the Recast Brussels I Regulation, and that regulation expressly does not affect the Lugano II Convention (see Article 73).
How do they work?
The Recast Brussels I Regulation, much like its predecessors, is focused on domicile as the basis for the exercise of jurisdiction. Domicile has its own distinct meaning for these purposes which is different from, for example, tax domicile. The general and default rule is that a person domiciled in a member state shall be sued in the courts of that member state (Article 4(1)). In order to sue elsewhere, the claimant has to show that the circumstances of the case fall within one of the exceptions outlined in Sections 2 to 7 of Part II of the regulation. For example, one of these exceptions is engaged where the defendant is one of a number of defendants and the claims are so closely connected that it is expedient that they are heard together. In such cases, the claimant can sue in the courts of the member state where any of the other defendants is domiciled (Article 8). Other rules, for example, give jurisdiction to states other than that of the defendant’s domicile in contract cases (at the place of the obligation sued upon) or in tort cases (at the place of the wrong, or where the damage occurred).
It is also worth drawing attention to Article 25, which deals with cases in which there is a jurisdiction agreement in favour of the courts of an EU member state. The Recast Brussels I Regulation no longer contains a requirement that one of the parties to the jurisdiction agreement must be domiciled in a member state. Accordingly, parties, wherever they are domiciled, can opt to resolve their dispute within the auspices of the Brussels regime.
This, however, is not the case in proceedings to which the Lugano II Convention applies, as that Convention works in parallel with the Brussels I Regulation, not the later Recast. This means that the Lugano II Convention still distinguishes between agreements in which at least one of the parties is domiciled in a member state and those agreements in which none of the parties is domiciled in a member state. It is only in the former category of jurisdiction agreements that an EFTA member state court will have Lugano II Convention jurisdiction.
In broad terms, if either the Recast Brussels I Regulation or the Lugano II Convention gives the English courts jurisdiction over a particular claim, and the defendant is domiciled within an EU or EFTA member state, the claimant will be entitled to bring its action in England without the court either having to give permission or having a discretion to stay the proceedings in favour of the courts of another country (see further CPR r. 6.33).
What if I am dealing with a non-European defendant?
The fact that a defendant is not domiciled in Brussels or Lugano state does not necessarily mean that the Brussels and Lugano regimes will not apply. It is necessary to work through the regimes’ frameworks first. If there is no applicable Article, then the English common law rules on jurisdiction will apply. These are based on the principle that service founds jurisdiction.
If the defendant is present within England and Wales, the English court’s jurisdiction may be established by personal service, subject to any objection on the basis that the English courts are not the appropriate forum (i.e. forum non conveniens).
However, if the claimant wishes to serve the defendant outside England and Wales, the claimant will need to obtain the permission of the court to do so, satisfying the court that (i) one of the jurisdictional gateways in CPR PD 6B (para. 3.1) is engaged, (ii) England is the proper forum for the claim and (iii) the merits of the claim are sufficient to avoid a strike-out application (see further CPR rr. 6.36 and 6.37).
There are a number of so-called ‘jurisdictional gateways’ in para 3.1 of CPR PD 6B, which apply to different types of claims. For example, one of those gateways is a claim made in contract, where it is (i) made within the jurisdiction, (ii) made by or through an agent trading or residing in the jurisdiction, (iii) is governed by English law, or (iv) contains a jurisdictional clause in favour of the English courts (see further CPR PD 6B, para 3.1(6)).
Does the defendant have a right to challenge jurisdiction?
Any claimant should bear in mind that the defendant may wish to challenge the English court’s jurisdiction by way of an application under Part 11 of the CPR. In cases involving non-European defendants, this objection is typically made on the basis that the English courts are not the appropriate forum (i.e. forum non conveniens). Prior to making an objection, the CPR requires that an acknowledgement of service of the claim form must be filed. If there is to be a challenge to jurisdiction, this should be indicated by ticking the relevant box.
You might also like to look at our overview of anti-suit relief: Can I stop someone suing me in another court or pursuing arbitration proceedings?