Lloyd's Maritime and Commercial Law Quarterly
SERVICE OUT OF THE JURISDICTION IN CONTRACT CASES: STRAIGHTENING OUT THE DECK CHAIRS?
Andrew Dickinson*
Global 5000 v Wadhawan
In its 2010 Proposal to recast the Brussels I Regulation,1 the European Commission recommends replacement of the Member States’ remaining national rules of jurisdiction in civil and commercial matters (covering defendants not domiciled in the EU) with a harmonised set of rules based on those that currently apply to EU domiciled defendants.2 If that proposal were to be adopted in its present form,3 the English “common law” rules of jurisdiction based on service, including the requirement that claimants seek permission to serve out as a pre-condition to the courts’ assertion of personal jurisdiction over defendants overseas, would cease to be of any practical significance.4
In the meantime, the English courts, like musicians on the Titanic, must ignore the threat to their traditional competences and continue to make decisions as to whether or not service out of the jurisdiction is permitted.5 Global 5000 Ltd v Wadhawan,
6 the subject of this note, is the latest in a series of cases concerned with the scope of the provision authorising service out of a claim made “ in respect of a contract” which has a relevant connection to the jurisdiction, in that it (a) was made in England or Wales, (b) was made through an agent trading or residing in England or Wales, (c) is governed by English law, or (d) contains a term conferring jurisdiction on the English court.7 Recently, and in an apparent departure from earlier practice,8 the courts have interpreted this ground very broadly, in particular (1) as not being limited to claims which are contractual in nature or which may otherwise be described as being brought “under” a contract,9 (2) as not requiring that the relevant contract be one to which both the claimant and defendant were parties,10 and (3) possibly, as not even requiring that the defendant be a party to the
* Professor in Private International Law, University of Sydney; Solicitor, England and Wales; Consultant, Clifford Chance LLP.
1. Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (COM (2010) 748 final [14.12.2010]).
2. Ibid., Recitals (16) and (17) and Art.4(2) (“Persons not domiciled in any of the Member States may be sued in the courts of a Member State only by virtue of the rules set out in Sections 2 to 8 of this Chapter”).
3. It remains unclear what shape this element of the final Regulation will take. Amendments to the Proposal put forward by the European Parliament’s Legal Affairs Committee would, if accepted, significantly water down the Commission’ s proposals and preserve the existing national rules alongside a common set of EU rules. See Draft Report of Tadeusz Zwiefka (EP document PE467.046v01-00, available at www.europarl.europa.eu/ meetdocs/2009_2014/documents/juri/am/880/880957/880957en.pdf. Amendments 67-69 (Diana Wallis).
4. They would remain relevant for claims falling outside the material scope of the Regulation to which no specialised jurisdiction regime applies. Such cases are likely to be few and far between.
5. The legal basis for an order granting permission to serve a claim form out of the jurisdiction is now to be found in Civil Procedure Rules 1998 (“CPR”), r.6.37, as supplemented (to the dismay of some, including the author of this note) by PD6B, para.3.1.
6. [2012] EWCA Civ 13.
7. CPR, PD6B, para.3.1(6).
8. Dickinson [2010] LMCLQ 1.
9. Albon v Naza Motor Trading Sdn Bhd [2007] EWHC 9 (Ch); [2007] 1 WLR 2489 (unjust enrichment); Greene Wood & McLean LLP v Templeton Insurance Ltd [2009] EWCA Civ 65; [2009] 1 WLR 2013 (contribution); Cecil v Bayat [2010] EWHC 641 (Comm) (unjust enrichment and conspiracy), affd [2011] EWCA Civ 135 without considering this point; Alliance Bank JSC v Aquanta Corp [2011] EWHC 3281 (Comm) (conspiracy, dishonest assistance, unjust enrichment and knowing receipt). See also Deripaska v Cherney [2009] EWCA Civ 849; [2009] CP Rep 48 (constructive trust).
10. Greene Wood v Templeton [2009] EWCA Civ 65; [2009] 1 WLR 2013; Cecil v Bayat [2010] EWHC 641 (Comm); Alliance Bank v Aquanta [2011] EWHC 3281 (Comm).
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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