How To Avoid .Foreign Defendants Challenging Jurisdiction Or Service Of A Claim In England
When the defendant is situated outside of the English jurisdiction, you must follow specific rules to ensure that your claim is brought in the right court and properly served. Liane Bylett from our Commercial Disputes Team outlines the pitfalls for the unwary.
So you have your claim ready, but your opponent is overseas. At this critical stage, there are some key points to consider. These are:
Is England the right place to bring the claim? Do you really need to serve out of the jurisdiction? If so, do you need permission to serve out of the jurisdiction? How should you serve the claim? The rules on jurisdiction and serving a claim form can be complex, particularly when the defendant is not within the English jurisdiction. It is important to get it right, because failure to properly to serve a claim can be a costly mistake if the defendant challenges jurisdiction and/or service. 1 – Is England the right place to bring the claim? You should consider whether the courts of England are the proper place for the dispute to be heard. Jurisdiction is a fact specific issue and legal advice should be sought in all instances. There are in essence two sets of complex rules that govern jurisdiction; the European regime under the Brussels Convention / Brussels Regulation and the common law rules. In cases between parties based in EU countries, jurisdiction under the Brussels Convention / Regulation will usually found on the basis of the domicile of the defendant individual or company of the member state. This essentially means that a defendant living in an EU country must be sued in the courts of that country. However exceptions may be made where special jurisdiction exists. This could be based upon, for example, an agreement between the parties as to which jurisdiction shall apply, or the place of performance of the contract or the place where a tort was committed.
The common law rules applying to non-EU defendants are complex. Under these rules, the courts will take into account various factors of personal and subject matter jurisdiction. This could include consideration of the domicile of the parties, the place of performance of a contract or the place where a tort was committed, any agreement between the parties in respect jurisdiction, whether any related proceedings are ongoing in another country and/or whether there is a more convenient forum elsewhere. 2 - Do you really need to serve out of the jurisdiction? Some thought should be given to whether...
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