PRIVATE INTERNATIONAL LAW

PROJECT TOPIC: JURISDICTION OF COURTS

UNDER ENGLISH LAW

Submitted By
AADITYA ANAND
Roll no. 1101
5th Year, 9th Semester, B.A.LL.B (Hons.)

Submitted To
Dr. P.P Rao
Faculty of Private International Law

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
August 24, 2018

i|Page
 DECLARATION

I hereby declare that the present project titled “Jurisdiction of Courts Under English Law”

submitted by me for the 9th semester project submission is a record of research work carried

out by me under the guidance and supervision of Dr. P.P Rao, faculty of Private International

Law, Chanakya National Law University, Patna, Bihar is original and has not copied from a

project report submitted earlier or from any journal or any other materials downloaded from

websites without acknowledgement.

Date: 24/08/2018 Aaditya Anand

Place: Patna B.A. LL.B (Hons.)

5thYear, 9th Sem.

Chanakya National Law University, Patna

ii | P a g e
 ACKNOWLEDGEMENT

Om Bhuur-BhuvahSvah
Tat-Savitur-Varennyam |
BhargoDevasyaDhiimahi
DhiyoYo Nah Pracodayaat ||

AsatoMāSadgamaya
TamasomāJyotirGamaya
MrityormāamritamGamaya
OṁŚhāntiŚhāntiŚhāntiḥ

I am feeling highly elated to work on the topic “Jurisdiction of Courts Under

English Law“ under the guidance of my Private International Law teacher [Dr. P.P.
Rao]. I am very grateful to him for his exemplary guidance. I would like to enlighten
my readers regarding this topic and I hope I have tried my best to pave the way for
bringing more luminosity to this topic.

Apart from all these, I want to give special thanks to the Google and
other search engines, senior students of the college, my sister, Manupatra , SCC
online who made every relevant materials regarding to my topic available to me at
the timeof my busy research work and gave me assistance. And at last I am very
much obliged to the God and my parents who provided me the potential for the
rigorous research work and financial support.

-----------Thanking you

Aaditya Anand

5th Year, 9th Semester, B.A. LL.B (Hons.)

Chanakya National Law University, Patna

iii | P a g e
TABLE OF CONTENTS

DECLARATION .................................................................................................................. ii

ACKNOWLEDGEMENT.................................................................................................... iii

LIST OF ABBREVIATION .................................................................................................. v

OBJECTIVE ........................................................................................................................ vi

HYPOTHESIS ..................................................................................................................... vi

RESEARCH METHODOLOGY ......................................................................................... vi

SOURCE OF DATA ............................................................................................................ vi

METHOD OF CITATION ................................................................................................... vi

CHAPTER I: INTRODUCTION........................................................................................... 1

CHAPTER II: JURISDICTION OF ENGLISH COURTS: OLD RULES V. NEW RULES .. 2

CHAPTER III: JURISDICTION UNDER VARIOUS CONVENTIONS .............................. 5

CHAPTER IV: ENFORCEMENT OF FOREIGN JUDGEMENTS ..................................... 10

CHAPTER V: CONCLUSION ........................................................................................... 13

BIBLIOGRAPHY ............................................................................................................... 15

iv | P a g e
LIST OF ABBREVIATION

& AND
ART. ARTICLE

C.A COMPANIES ACT

CO. COMPANY

EEC EUROPEON ECONOMIC COMMUNITY

ETC ETCETERA

EFTA EUROPEON FREE TRADE ASSOCIATION

LTD. LIMITED

MAD MADRAS

No. NUMBER

S. , SEC. SECTION

SEM. SEMESTER

SILC STANDARD INDIAN LEGAL CITATION

U.K UNITED KINGDOM

v. VERSES

v|Page
 OBJECTIVE

The researcher has done research on the above topic for following issues:

a) Jurisdiction of Courts under English Law.

b) Restraining foreign Proceeding under English Law.

HYPOTHESIS

The Researcher has a hypothesis regarding the research topic which is that:

When the defendent is not present in England, the english court has power to hear the
case if he voluntarily submits to the jurisdiction or if the plaintiff obtains leave to
serve the writ on him outside the jurisdiction.

RESEARCH METHODOLOGY

The researcher has used doctrinal mode of research.

SOURCE OF DATA

Primary Sources: The Companies Act, 1985; The Civil Jurisdiction And Judgements
Act, 1982; The Brussels Convention; The Lugano Convention.

Secondary Sources: Websites, Books and Articles.

METHOD OF CITATION

The researcher has followed Standard Indian Legal Citation method throughout the
course of this Project.

vi | P a g e
 CHAPTER I: INTRODUCTION

This project aims to provide a comprehensive background and overview of key issues related
to the Jurisdiction of Courts under English Law. Frederic Harrison, in his perspective sketch
of the conflict of laws of his day, observed: Private international law is solely concerned with
the practice of tribunals.” In 1951 leading American authorities on this subject stated the five
matters which are dealt with in the conflict of laws as: jurisdiction of courts; foreign
judgments; choice of law; jurisdiction to tax; and aliens and non-residents.’

Between these two views of the scope of this subject stand opinions of the generality of
English writers that the conflict of laws finds its uniformity in and is built up around three
major topics, of which the first two receive the greatest emphasis: (1) Choice of law; (2)
Choice of jurisdiction; (3) Recognition of foreign judgments.3 While certain writers realize
that a problem in the conflict of laws may involve only one of these three questions; the
assumption has been made by others, in a way which seems to raise it to a principle of law,
that when-ever a court is dealing with a question of conflict of laws it must necessarily
consider both its own jurisdiction in the international sense and the choice of the appropriate
law. Dicey, for example, formulates the statement in this way: ‘Whenever a case containing
any foreign element calls for decision, the Judge before whom it is tried must, either
expressly or tacitly, find an answer to at least two questions before he can decide the
dispute.”

The researcher has discussed in second chapter about the Old rules and New rules which
governs the issue of Jurisdicion of courts. Under old rules the burden is on the plaintiff to
show that the dispute comes under any one of the heads provided in reference to an
individual, a writ maybe served on any individual who is present in England. In Third
chapter, the researcher aimed to state the Jurisdiction of courts under various conventions like
Brussels convention, Lugano conventions. Jurisdiction is a word susceptible of several
different meanings, but in the present account it is used in its widest sense to refer to the
question of whether an English court will hear and determine an issue upon which its
decision is sought. In fourth chapter, the researcher has stated about the laws which were
applicable during enforcement of foreign judgements. Fifth chapter is a concluding chapter.

1|Page
 CHAPTER II: JURISDICTION OF ENGLISH COURTS: OLD RULES V.
NEW RULES

OLD RULES
Where the defendant is not domiciled within the EEC/EFTA but present in England, then
jurisdiction in personam is assumed when the writ is served on his person in case of an
individual, on its principle place of business in case of a corporation, or either on the
individual partner present in England or on the partnership firm in case of partnership. Where
the defendant is not present in England, the English court has [power to hear the case if he
voluntarily submits to the jurisdiction, or if the plaintiff obtains leave to serve the writ on him
outside the jurisdiction.1

Order 11 R-1(1) provides for a multiplicity of instances under which leave of the court may
be obtained. The burden is on the plaintiff to show that the dispute comes under any one of
the heads provided in reference to an individual, a writ maybe served on any individual who
is present in England.2

The plaintiff an Indian Princess residing in France brought an action against a US art dealer.
also reding in Prance , for breach of contract for sale in France of a painting which turned out
to be a forgery. The writ was served on the dekndantchiring a short visit to Ascot races.3

The Court of Appeal held than the defendant had been properly served with a writ and
accordingly it had jurisdiction to hear the case.

CORPORATIONS

By virtue of S.6914 and S.7255, a corporation is deemed present in England for the purpose of
serving a writ in three situations;

 A company registered in England is present here even if it only carries on business

abroad.6
 If the company is incorporated outside England but has a place of business here.7

1
Order 11 R-1(1) of the rules of The Supreme Court.
2
Maharani Of Baroda v. Wildenatein (1972) 2 QB 283.
3
Ibid.
4
The Companies Act, 1985.
5
Ibid.
6
S.725, The Companies Act, 1985.

2|Page
  If no such address is filed, or if the person named dies or for any reason the writ
cannot be served, the writ maybe served.
 on the company by sending it to any place of business established by the company in
great Britain.8

The above provisions give rise to the question of when a foreign company is said to have
established a place of business in England. This question can only be answered by examining
the activities of the defendant company in England.

In South India Shipping Corporation limited v. Export Import Bank of korea (1985) case, the
plaintiff, a company incorporated in India brought a claim against the defendant bank which
was incorporated in korea where its main business was conducted.9 However, the bank rented
an office in London for the purposes of gathering information and maintaining public
relations with other banking and financial institutions in the United Kingdom and Europe. No
banking transactions were concluded from the London office, nor was the office registered as
a place of business under Companies Act, 1948 then in force.10 The writ was served at the
office in London. The defendant contended that as they had not established a place of
business in Great Britain the writ was not duly served. The court of appeal held that a
company is said to have established a place of business in great Britain if it carried on part for
its business activities here, and that it was not necessary for those activities to either a
substantial part of, or more than incidental to, the main object of the company.11

Accordingly the defendant was duly served with the writ for it had established a place of
business here and it was immaterial that the defendant did not conclude any banking
transactions from the London office nor has banking dealings with the general public.12

NEW RULES

7
S.691, The Companies Act, 1985.
8
S.695, The Companies Act, 1985.
9
Andrew Burrows, English Private Law, 2013, Print ISBN-13: 9780199661770, Oxford Scholarship Online
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199661770.001.0001/acprof-9780199661770-
chapter-20 last seen on 23/08/18.
10
Ibid.
11
Ibid.
12
Ulrich M. Drobnig Peter Hay Max Rheinstein, Conflicts of Law, 2016,
https://www.britannica.com/topic/conflict-of-laws last seen on 24/08/2018.

3|Page
Where the defendant is domicile within the EEC/EFTA, the English court must ignore the
traditional rules and assume jurisdiction in accordance with the provisions of either the
Brussels Convention or the Lugano Convention.13

As a general basis of jurisdiction, the essential criteria is the domicile of the defendant. The
courts of the member state in which the defendant is domiciled will have jurisdiction to
entertain a dispute within the scope of the conventions.14

Alternative bases of jurisdiction are provided by virtue of the provisions on special

jurisdiction i.e. in relation to contract, tort, maintenance, matters relating to insurance,
consumer contracts, etc.

In such cases, the plaintiff is given .he choice to bring his action either in the courts of the
member state where the defendant is domicile or in the courts of the member state designated
by these provisions.

This is so unless the provisions on exclusive jurisdiction under Article 16 come into
operation. The effect of such basis of jurisdiction is that the designated courts of the member
state will have exclusive jurisdiction and the courts of the defendant will have to decline
jurisdiction.15 Such exclusive jurisdiction applies in relation to issues of immovable property,
companies and associations, intellectual property, enforcement of judgements, etc.

Additionally and subject to Art. 16, further provisions for exclusive jurisdiction apply in
relation to jurisdiction agreements and defendant’s submission to the jurisdiction of a
member state other than that of his domicile.16

By virtue of Art. 18 of the convention, the courts of a contracting state before whom a
defendant enters an appearance shall have jurisdiction. This is so, except where his
appearance was solely to contest the jurisdiction, or where another court has exclusive
jurisdiction under Art. 16. However, by only mentioning Art. 16, Art.18 seems to prevail over
an agreement conferring jurisdiction under Art. 17.

13
Alfonso-Luis Calvo Caravaca, Brussels Regulation I, 852, Sellier European law Publication 2007.
14
Ibid.
15
Arthur Lenhoff, International Law and Rules on International Jurisdiction, Volume 50 Issue 1 Fall 1964,
Cornell Law Review.
16
Ibid.

4|Page
 CHAPTER III: JURISDICTION UNDER VARIOUS CONVENTIONS
Jurisdiction is a word susceptible of several different meanings, but in the present account it
is used in its widest sense to refer to the question of whether an English court will hear and
determine an issue upon which its decision is sought.17 The position is complicated by the
fact that there are now four separate sets of rules determining the jurisdiction of English
courts. First, there are the rules under the European Community Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels
Convention).18 Second, there are the rules contained in a modified version of the Brussels
Convention (the Modified Convention). Third, there are the rules under the ECIEFTA
Convention (the Lugano Convention). Fourth, there are the traditional rules.

JURISDICTION UNDER BRUSSELS CONVENTION

In broad terms, the rules on jurisdiction contained in the Brussels Convention apply where:

a) The matter is within the scope of the Convention (a civil and commercial Matter)19,
and
b) The defendant is domiciled in a European Community State (i.e. in Austria,
Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,
the Netherlands, Portugal, Spain, Sweden and the United Kingdom), Even if he is
not, certain provisions in the Convention will stil1 apply, e.g. where the case
involves tide to land in a Contracting State or where there is an agreement
conferring jurisdiction on the courts of a Contracting State.20 Jurisdiction under the
Convention depends on a specified connection with the forum, eg that the defendant
is domiciled there, Furthermore, if a Contracting State is allocated jurisdiction under
the Convention, the courts stated that State have no discretion to take jurisdiction, at
least not in cases where the alternative forum is another Contracting State.21

17
Jayant Bhatt & Tanvi Kapoor, The Rules To Be Followed By A Court In Applying Appropriate Law In Cases
Having A Foreign Party,2015, http://www.legalserviceindia.com/articles/frpca.htm last seen on 22/08/2018.
18
Ibid.
19
Jurgen Basedow, Encyclopedia of Private International Law, Vol. I, Edward Elgar Publication.
20
Supra 18 at 21.
21
Supra 19.

5|Page
Whether the defendant is domiciled in a Contracting State. It is necessary to distinguish
between22:

a) bases of jurisdiction (Title II, Sections 1-6);

b) other provisions on jurisdiction in Title II;
c) provisions on recognition and enforcement in Title III.

It is only in the first of these, the bases of jurisdiction under the Convention, that an initial
basic distinction is drawn between the situation where the defendant is and is not domiciled
in a Contracting State. Section 1 of Title II gives one exception where this basic distinction
does not operate and, if the wording of individual bases of jurisdiction is studied, at least
one more exception emerges.23

Where the defendant is domiciled in a Contracting State: Article 2 in Section 1 contains the
most important basis of jurisdiction under the Convention, that a defendant domiciled in a
Contracting State is subject to the jurisdiction of the courts of that State.24 If the defendant
is to be sued in the courts of a Contracting State other than that of his domicile, Article 3
provides that this can only be done by virtue of the bases of jurisdiction set out in Sections
2 to 6. This prevents national courts from using their traditional rules on jurisdiction,
including their exorbitant rules, against a defendant who is domiciled in a Contracting
State. In the United Kingdom’s case it is specifically provided in Article 3 that, against such
a defendant, jurisdiction can no longer be founded on presence of the defendant in the
forum. 25 Article 3 does not refer to the domicile of the claimant: It follows that, for
example, a Japanese domiciliary, although not domiciled in a Contracting State, would have
to use the bases of jurisdiction under the Convention if he wished to sue in a Contracting
State a defendant who was so domiciled.26

The defendant is not domiciled in a Contracting State: Where the defendant is not
domiciled in a Contracting State, Article 4 states that the jurisdiction of the courts of each

22
L. I. De Winter, The International and Comparative Law Quarterly, Vol. 17, No. 3 (Jul., 1968), 706-720
https://www.jstor.org/stable/757017?seq=1#page_scan_tab_contents last seen on 22/08/2018.
23
Rules Of Private International Law, https://www.lawteacher.net/free-law-essays/commercial-law/rules-of-
private-international-law-commercial-law-essay.php last seen on 24/08/2018.
24
Ibid.
25
Supra 24.
26
Supra 25.

6|Page
Contracting State shall, subject to the provisions of Article 16, be determined by the law of
that State. If, to take an example, an Englishman wishes to sue a Californian domiciliary in
England, he would have to do so under the traditional English rules on jurisdiction, which
are, by and large, more generous to the claimant than their equivalent under the
Convention. Article 4 therefore, recognizes the use of exorbitant jurisdiction by Contracting
States in certain circumstances. 27 This has far reaching consequences when it comes to
enforcing judgments and declining jurisdiction in cases of lis pendens. Article 4 requires
the courts of Contracting States to ascertain when a defendant is not domiciled in a
Contracting State. Having decided that an individual defendant is not domiciled in the
United Kingdom (under the United Kingdom definition), and is not domiciled in another
Contracting State (under. that State’s definition), the defendant must be domiciled in a non-
Contracting State.28

The exceptions: Article 4 mentions just one exception to the rule that national bases of
jurisdiction apply where the defendant is not domiciled in a Contracting State; it is
contained in Article 16. 29 This gives exclusive jurisdiction in certain circumstances,
regardless of the defendant’s domicile. Although Article 4 does not mention it, there is
another exception to the rule; this is Article 17 (agreements on jurisdiction).30 This article is
drafted in such a way that the defendant is not required to be domiciled in a Contracting
State.31

JURISDICTION UNDER THE MODIFIED CONVENTION

The Civil Jurisdiction and Judgments Act 1982 applies a modified version of the
convention:

a) The matter is within the scope of the Convention (a civil and commercial matter)
and;

27
Stephenson Harwood, Defendant domiciled in England, 2015, http://www.shlegal.com/news-insights/when-
will-the-english-courts-have-jurisdiction-over-a-dispute last seen on 21/08/2018.
28
Ibid.
29
Sam Manuell, Jurisdiction of Courts under english law
https://www.google.com/search?source=hp&ei=7d2LW_H2FYfnvASXxYSoAw&q=jurisdiction+of+courts+un
der+english+law+in+private+international+law&oq=ju&gs_l=psy-
ab.1.0.35i39k1l2j0i131k1j0l5j0i131k1j0.9375.13984.0.15888.16.10.5.0.0.0.198.1272.0j7.8.0....0...1.1.64.psy-
ab..3.13.1523.6..0i10k1.226.089U6KweEvA last seen on 21/08/2018.
30
Ibid.
31
Ibid.

7|Page
 b) The defendant is domiciled in the United Kingdom or the proceedings are of a kind
where jurisdiction is allocated regardless of domicile, e.g. the case involves title to
land in part of the United Kingdom.32

The defendant must be domiciled in the United Kingdom or the proceedings must be of a
kind mentioned in Article 16 of the 1968 Convention. The Modified Convention is only
concerned in Brussels Convention cases with proceedings where jurisdiction is allocated to
the United Kingdom under Article 2 (the defendant is domiciled in a Contracting State) or
under Article 16 of the 1968 Convention (exclusive jurisdiction regardless of domicile).33
With both of these articles the Convention confers international jurisdiction (i.e. on the
United Kingdom) and not local jurisdiction (i.e. on a part of the United Kingdom).34 Where
the Convention assigns jurisdiction to the courts in the United Kingdom under other
articles, it is necessary to regard it as allocating jurisdiction to the courts in a part of the
United Kingdom. 35 In general, there is no problem where Article 5 applies, as this is
designed to give local jurisdiction. Most of the heads of Article 5 are phrased in terms of
the courts for a “place” in a Contracting State having jurisdiction. For example, Article 5(3)
refers to the courts for the place where, the harmful event occurred; ascertaining the “place”
where the harmful event, occurred inevitably pinpoints a part of the United Kingdom whose
courts are to have jurisdiction. Where Articles 17 and 18 apply, as has already been seen,
there may be more difficulty in allocating jurisdiction to a part of the United Kingdom.

The requirement under section 16(I)(b) that the defendant be domiciled in the United
Kingdom causes the usual definitional problems. In principle, a person is domiciled in
England, Scotland, or Northern Ireland, not in the United Kingdom. Section 41(2) of the
1982 Act solves this difficulty by defining for the purposes of the Act whether an individual
is domiciled in the United Kingdom.

This is only so if:

a) he is resident in the United Kingdom; and

32
Peter Bedellington, Private International Law, http://www.lette.ca/docs/default-source/articles/private-
international-law.pdf?sfvrsn=0 last seen on 22/08/2018.
33
Ibid.
34
Supra 21.
35
Ibid.

8|Page
 b) the nature and circumstances of his residence indicate that he has a substantial
connection with the United Kingdom.

Showing this substantial connection is made easier by the introduction of a presumption

under section 41(6), according to which, where an individual (a) is resident in the United
Kingdom, or in a particular part; and (b) has been so resident for the last three’ months or
more, the requirement as to a substantial connection is presumed to: have been fulfilled,
unless the contrary is shown. With corporations, section 42(3) basically provides that a
corporation has its seat in the United Kingdom if (a) it was incorporated and has its
registered office in the United Kingdom; or (b) its central management and control is
exercised in the United Kingdom.36

JURISDICTION UNDER THE LUGANO CONVENTION

In broad terms, the rules on jurisdiction contained in the Lugano Convention are applied in
the United Kingdom and in other European Community States where37:

a) The matter is within the scope of the Convention (a civil and commercial matter),
and38
b) The defendant is domiciled in an EFTA State (i.e. Iceland, Norway or Switzerland).
Even if he is not, certain provisions in the Convention will still apply, e.g. where the
case involves title to Land in all EFTA Stare or where there is an agreement
conferring jurisdiction on the courts of an EFTA State39,

The Lugano Convention applies in relation to jurisdiction in the situation where the matter
is within the scope of .the Convention and the defendant is domiciled in a Contracting State
(or Article 16 or 17 gives jurisdiction to a Contracting State). This is the same as under the
Brussels Convention and presents no problem for EFTA Contracting States. However,
Member States of the European Community are Contracting States to both the Lugano
Convention and the Brussels Convention. Given that there are differences between the two
Conventions, Member States of the European Community need to know which Convention
to apply. Article 54B of the Lugano Convention deals with this. The effect of this

36
S. 328(2), The Companies Act, 2006.
37
Cheshire, North & Fawcett, Private International Law, 112, Fifteenth Edition, Oxford University Press.
38
Ibid.
39
Geert Van Calster, European Private International Law,2013, Bloomsbury Publishing.

9|Page
provision, as far as EC Contracting States are concerned, is that if a defendant is domiciled
in an EC Contracting State the Brussels Convention will still apply in matters of
jurisdiction. However, if the defendant is domiciled in an EFTA Contracting State The
Lugano Convention will apply.40 The latter convention will also apply if Articles 16 or 17
confer jurisdiction on the courts of an EFTA Contracting State. The provisions in the
Lugano Convention on lis pendens and related actions will apply if there are concurrent
proceedings in an EC Contracting State and an EFTA Contracting State.

CHAPTER IV:
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS

Due to the UK’s accession to both the Brussels and Lugano conventions, there are currently
two sets of rules in relation to recognition and enforcement of foreign judgments depending
on where the judgment in question was rendered. If it was rendered within EC/EFTA States
then the issue would be exclusively governed by the Civil jurisdiction ands Judgments Act-
Sch. IV 1982, 1991. However, if the judgment was rendered outside the states, then the
traditional common law rules, as amended and reinforced by statute, would apply.41
Before moving on to examine both sets of rules it is essential to know the distinction between
recognition and enforcement.42
Whilst a foreign judgment must be recognized before it can be enforced, not every
recognized judgment need to be enforced. Recognition simply means that the English courts
take note of the result of the judgment. Hence, if English law recognizes a foreign divorce
decree, this simply means that it will consider the couple as unmarried. However, there may
be an order ancillary to such a decree unmarried.43 However, there may be an order ancillary
to such a decree which may be capable of enforcement, such as an order that the husband
should pay maintenance to the wife. It may be noted that there are special rules on the
recognition of foreign matrimonial judgments.
Foreign judgments have been recognized and enforced by the English courts since the 17th
century. This was initially based on the ground of comity. However, this theory has been

40
Supra 39.
41
Uglješa Grušić, The European Private International Law of Employment, 2015, University of Nottingham.
42
Ibid.
43
Alfonso-Luis Calvo Caravaca, Brussels Regulation I, 852, Sellier European law Publication 2007.

10 | P a g e
superseded by the doctrine of obligation which was stated in Schibsby v. Westenholz44 in the
following terms...’the true principle on which the judgments of foreign tribunals are enforced
in England is that the judgment of a court of competent jurisdiction over the defendant to pay
the sum for which judgment is given, which the courts in this country are bound to enforce;
and consequently that anything which negatives that duty, or forms a legal excuse for not
permitting it is a defence to the action’.45 Since 1982, a plaintiff who has obtained a foreign
judgment for a debt can only bring an action in England for the debt and can no longer bring
proceedings on the original cause of action. A plaintiff seeking to enforce a foreign judgment
in England may either sue on the obligation created by the judgment, or plead the judgment
Res Judicata in proceedings which raise the same issue. Under the administration of justice
act 1920, a person who obtained a judgment in any part of the commonwealth may apply to
the high court to have the judgment registered. Registration is however, discretionary. Under
the foreign judgments (reciprocal enforccments) act 1933, registration of a foreign judgment
in England is as of right and not discretionary, and the successful litigant can make his
application at any time within six years.46
Requirements under the old rules: The foreign court must have been jurisdictionally
competent to try the action. Competence is tested in the context of residence of the defendant
in, and/or his submission to, the foreign court. Where the plaintiff seeks enforcement at
common law or under the 1933 act rather than mere recognition, the judgment must be for a
fixed sum of money, final and conclusive, and not rendered in matters of foreign revenue,
penal or other public laws, provided that it is not inconsistence with the provisions of the
protection of Trading Interests Act, 1980. Onc main distinguishing feature, however, under
the 1920 act is that the judgment must have been rendered by a superior court. Defences: The
defences which may be raised by the defendant against the enforcement of a foreign
judgment arc fraud, public policy, natural justice, and breach of section 32 CJJA 1982. This
section does not affect judgments required to be enforced and recognized under either
Brussels or Lugano conventions.
EC/EFTA Judgments The provisions of the conventions apply to any judgment given by a
court or tribunal of contracting state, regardless of whether or not the defendant is domiciled
in a contracting state, including injunctions, specific performance, writs of executions, etc

44
(1870) LR 6 QB 155.
45
Supra 43.
46
L. I. De Winter, The International and Comparative Law Quarterly, Vol. 17, No. 3 (Jul., 1968), 706-720
https://www.jstor.org/stable/757017?seq=1#page_scan_tab_contents last seen on 22/08/2018.

11 | P a g e
and provided that the judgment was not made ex parte. A judgment given in a contracting
state must be recognized in all other contracting states without any special procedures
required. In relation to enforcement, however, such a judgment must be enforced in another
contracting state when, on the application of any interested party, it has been declared
enforceable there.47
The procedure for the enforcement of judgments in the Uk is a two stage process. First, the
plaintiff makes an cx parte application for an order of enforcement. At this stage, the
defendant does not have the right to be heard. Secondly, once the judgment is authorized,
notice of registration is served on the defendant who has right to appeal.48
Art 27 & 28 of the Brussels convention provide for a number of defences , if any of them is
established , then the judgment will not be recognized . As recognition is prerequisite for
enforcement. Article 34 expressly states that these defences apply equally to enforcement. A
defendant may raise one or more seven defences, such as public policy, non-reconciliation ,
lack of jurisdiction etc . A further four defences may be invoked where the judgment is
sought to be enforced within EFTA states.49
A judgment rendered in one part of the UK may be enforced in another part if it meets the
requirements of Section 18 of the 1982 Act. Enforcement can only be made by the way of
registration under Schedule 6 of the Act (for money judgements) or Schedule 7 (for non-
money judgements). Section 18 initially defines “Judgment “in a wide manner and then gives
a detailed list of the judgment it does not cover. Section 19 applies in relation to recognition
of judgments within the UK.50

47
Ibid.
48
Arthur Lenhoff, International Law and Rules on International Jurisdiction, Volume 50 Issue 1 Fall 1964,
Cornell Law Review.
49
Ibid.
50
Ibid.

12 | P a g e
 CHAPTER V:
CONCLUSION

There are several factors that affect the plaintiff’s decision of where to file a case. One is
convenience. For example, a plaintiff is likely to want to sue in a jurisdiction that is
reasonably close to his home, particularly because witnesses and evidence may be more
readily available there. Legal questions also are important. A plaintiff may be more likely to
file suit in a jurisdiction that will afford him procedural and other advantages and where the
defendant has assets with which to satisfy an ultimate judgment. Examples of likely
procedural or substantive law advantages include the possibility of a jury determination of
damages in a tort case, the availability of punitive damages, the ease of obtaining pretrial
discovery of evidence (commonly used in the United States), the possibility of suing on only
a part of one’s claim to determine the likelihood of success before committing resources to a
suit on the entire claim (a common practice in Germany), and advantageous exploitation of
variations in liability standards.

The Recast Brussels Regulation (no. 1215/2012) (which applies to all member states of the
European Union) applies to proceedings commenced on or after 10 January 2015 and
provides that (subject to certain exceptions) both individuals and legal persons (e.g.
companies) should be sued in the member state in which they are domiciled. This means that,
if a defendant is domiciled in England, the English Court will have jurisdiction over the
dispute and it will not be open to the defendant to argue that the case should be determined by
the courts of a different jurisdiction.

An individual is domiciled in England if they are (i) resident in the jurisdiction and (ii) the
nature and circumstances of their residence indicate a substantial connection with the
jurisdiction. The English Courts have held that an individual can be resident in multiple
jurisdictions. This may be the case where a defendant has business interests in multiple
jurisdictions and spends periods of time in each. The English Court will consider all of the
circumstances when deciding whether an individual is resident in this jurisdiction. The fact
that a defendant owns a property in England is, on its own, unlikely to be sufficient. The
claimant must show that there is a good arguable case that the property is the defendant’s
settled or usual place of abode (i.e. where they live). A degree of permanency is required. The
English Court is likely to take into account factors such as whether the defendant’s family
lives at the property and the number of nights the defendant has spent at that property in

13 | P a g e
recent years, compared to nights spent in other jurisdictions. It is also likely to consider the
portion of the defendant’s business interests that are in this jurisdiction, compared to other
jurisdictions.

The researcher has found his hypothesis correct which is When the defendent is not present in
England, the english court has power to hear the case if he voluntarily submits to the
jurisdiction or if the plaintiff obtains leave to serve the writ on him outside the jurisdiction.

14 | P a g e
 BIBLIOGRAPHY

PRIMARY SOURCES

 The Companies Act, 1985

 The Civil Jurisdiction And Judgements Act, 1982
 The Brussels Convention
 The Lugano Convention.

SECONDARY SOURCES

Articles

 Andrew Burrows, English Private Law, 2013, Print ISBN-13: 9780199661770,

Oxford Scholarship Online
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199661770.001.000
1/acprof-9780199661770-chapter-20
 Jayant Bhatt & Tanvi Kapoor, The Rules To Be Followed By A Court In Applying
Appropriate Law In Cases Having A Foreign Party,2015,
http://www.legalserviceindia.com/articles/frpca.htm.
 L. I. De Winter, The International and Comparative Law Quarterly, Vol. 17, No. 3
(Jul., 1968), 706-720
https://www.jstor.org/stable/757017?seq=1#page_scan_tab_contents.

 Arthur Lenhoff, International Law and Rules on International Jurisdiction, Volume

50 Issue 1 Fall 1964, Cornell Law Review.

Books

 Jurgen Basedow, Encyclopedia of Private International Law, Vol. I, Edward Elgar

Publication.

 Alfonso-Luis Calvo Caravaca, Brussels Regulation I, 852, Sellier European law

Publication 2007.
 Uglješa Grušić, The European Private International Law of Employment, 2015,
University of Nottingham.
 Geert Van Calster, European Private International Law,2013, Bloomsbury
Publishing.

15 | P a g e
  Cheshire, North & Fawcett, Private International Law, 112, Fifteenth Edition, Oxford
University Press.

Essay

 Rules Of Private International Law, https://www.lawteacher.net/free-law-

essays/commercial-law/rules-of-private-international-law-commercial-law-essay.php.

Websites

 Ulrich M. Drobnig Peter Hay Max Rheinstein, Conflicts of Law, 2016,

https://www.britannica.com/topic/conflict-of-laws.
 Stephenson Harwood, Defendant domiciled in England, 2015,
http://www.shlegal.com/news-insights/when-will-the-english-courts-have-
jurisdiction-over-a-dispute.

16 | P a g e