UK: Can You Bring A Claim In The English Court?

Last Updated: 6 September 2012
Article by Christopher Coffin

The English courts are often used to resolve disputes involving parties based in other countries. The reasons behind a party's choice of the English courts can be many and varied, but the rules that govern the court's ability to accept jurisdiction over these disputes are well established.

Why does the English court have jurisdiction?

The first point to note is that the residence, nationality, domicile or presence of the person bringing the claim is not directly relevant to the question of jurisdiction. In fact, it is quite possible (although unusual) for the claim to progress all the way through to trial and judgment without the claimant setting foot in England. 

The first question the English court will ask is whether it has jurisdiction over the proposed defendant. In this article we will look only at the rules that apply to a defendant who is not resident in the UK, another EU state, or in Switzerland, Iceland or Norway. 

The basic rule is that the English court has jurisdiction over a non-resident, non-EU defendant if either (1) the defendant can be served with court papers within England and Wales, or (2) all the claims against the defendant fall within at least one of the categories of dispute over which the court is prepared to assert jurisdiction. Whether the court will actually exercise that jurisdiction depends on the factors mentioned below.

Service of court papers on the defendant while he or she is in England or Wales will establish the English court's jurisdiction over the defendant. The presence of the defendant in the territory of the court denotes his or her acceptance of the jurisdiction of the English court. In the case of an individual, service during a short visit to the territory is effective. A corporate defendant though is only said to be 'present' in England and Wales if it is trading, directly or indirectly, in the territory. A visit by a director of an overseas company does not bring the company within the jurisdiction of the court. 

If the defendant, individual or corporate, is not present within England and Wales, but has agreed that solicitors located in England and Wales can accept service on the defendant's behalf, then the claimant can, indeed must, serve the solicitors and thereby can invoke the court's jurisdiction over the defendant. 

If service within England and Wales is not possible, then the claimant has to obtain the court's permission to serve the defendant elsewhere in the world. Permission will only be given if three conditions are satisfied: (1) the claim has a reasonable prospect of success; (2) England is the proper place in which to bring the claim; and (3) each claim falls within at least one of twenty categories or 'gateways'. In other words the court must be satisfied that it both can, and should, assert jurisdiction over the claim.

Each of these conditions must be addressed in written evidence and presented to the court either on paper or at a hearing to which the defendant is not invited. The defendant's chance to argue arises after service has been effected.

If the claim concerns a contract, then permission to serve a non-EU defendant may be given if the contract was made in England, is governed by English law, contains an agreement conferring jurisdiction on the English court, or was breached within England or Wales.

If the claim concerns a tort such as a claim in deceit or negligence, permission to serve may be given by the court if the damage or loss was sustained within England or Wales or resulted from an act committed within England or Wales.

There are also gateways for claims concerning trusts, real property, tax, costs, interim remedies and enforcement. 

One other gateway that often proves useful in multi-party claims is the 'necessary or proper party' gateway. If there is one defendant who can be served within England and Wales or with permission under another of the gateways, and against whom there is a real issue to be tried, then the court will allow the claim to be served on other parties outside the jurisdiction that are shown to be necessary or proper parties to the claim.

After service – can the defendant challenge jurisdiction?

Once the defendant has been served, whether in England and Wales or elsewhere, the defendant has only a short period of time in which to challenge the jurisdiction of the English court. The challenge must be lodged at court quickly and before the defendant takes any other steps to defend the claim. The court will then consider the challenge before the proceedings progress any further.

The defendant must convince the court that either the English court has no jurisdiction over him or that, even if it has jurisdiction, it should not exercise it. 

A challenge on the grounds that the court has no jurisdiction often involves asking the court to set aside its original grant of permission to serve out of the jurisdiction. The defendant can challenge each condition that the claimant put forward when obtaining permission. For example, the defendant can try to convince the court that the claim against it is so weak that it there is no serious issue to be tried and no real prospect of the claim succeeding. In a contract case, the defendant might argue that there was no agreement conferring jurisdiction. 

It is common for a defendant to argue that even if the English court has jurisdiction, it is not the appropriate forum and should not exercise its jurisdiction. A challenge on this basis must always include the argument that there is another court of competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the case, and that it is not unjust that the claimant be deprived of the right to trial in England.

If the court is satisfied that there is another available forum which is more appropriate, the burden then shifts back to the claimant to show that there are special circumstances in the interests of justice for the case to remain in England. One of the high profile cases that have come to trial in London this year is here because the court was satisfied at an early stage that although Russia was the natural forum for resolving the dispute, the risks to which one of the parties would be exposed if the case were to be tried in Russia were sufficient to make England the appropriate forum.

When determining which is the 'most appropriate or natural forum', the court will consider various factors to decide which forum has the most real and substantial connection with the claim. These factors include: convenience and expense, the whereabouts of witnesses, the governing law of the transaction, the parties' places of residence and/or business, and the possible multiplicity of proceedings. No single factor overrides another, and the court has a wide discretion which it will exercise "in the interest of justice".

What to expect if jurisdiction is disputed

Bringing a claim before the English courts with a substantial foreign (non-EU) element is quite possible, but does require a number of hurdles to be carefully overcome. Permission to serve may need to be obtained, service on the defendant in another country successfully and correctly executed, and any challenge by the defendant dealt with. If the claim involves multiple defendants, a mixture of contract and tort, and questions of foreign law, a dispute over jurisdiction can be lengthy and complex. It is, though, a preliminary hearing, and a full consideration of the merits and evidence in the case will not be needed. The court will make its decision according to which party has 'the better of the argument'. Once the issue is decided, and any appeal dealt with, the parties can focus on resolution of the actual dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.