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The Impact of Recent Judgments of the European Court on English
Procedural Law and Practice
ADRIAN BRIGGS
Zeitschrift fur Schweizerisches Recht 124 (2005) II 231-262
University of Oxford Faculty of Law Legal Studies Research Paper Series
Working Paper No 11/2006 April 2006
B. Thehttps://www.51lunwen.org/uk/ material judgments of the Court of Justice
(i) Failure to enforce jurisdiction agreements: Erich Gasser GmbH
v MISAT srl
(ii) Failure to prevent wrongdoing in the assertion of
jurisdiction: Turner v Grovit
(iii) Rejection of the right to apply forum non conveniens:
Owusu v Jackson
(iv) Summary view
C. An explanation for differences in approach of English courts and
the European Court
D. The limits of the decisions: how far do they go ?
(i) Jurisdiction under Article 2
(ii) Jurisdiction under Article 4
(iii) Proceedings between parties who have agreed to arbitrate
(iv) Enforcement of jurisdiction agreements by other means
(v) Future legislation on choice of law
E. Conclusions.
A. The fundamental nature of English law on the jurisdiction of courts
(i) Rules of jurisdiction
English law has traditionally taken a relaxed approach to civil jurisdiction: if the defendant was
present within the territorial jurisdiction of the court, he could be served with a writ of summons
and was, when served, subject to the jurisdiction of the court. The rule for individual defendants
was applied by analogy, and confirmed by statute, for other kinds of defendant, so a company
may be served at a place of business within the jurisdiction,
4
and proceedings against those
interested in a sea-going ship may be served on the ship within the territorial waters of the court.
5
Proceedings against those not physically present within the jurisdiction cannot be commenced in
the same https://www.51lunwen.org/uk/way, for it was seen as inconsistent with the respect which sovereign nations owe to
each other for a royal summons to an English court to be served within the territorial jurisdiction
of another sovereign. So the practice developed of allowing a plaintiff to apply to the English
court for permission to serve process on a defendant out of the jurisdiction, and this was
gradually reduced into a quasi-statutory form of procedure.
6
Indeed, so seriously did the English
courts take the point about trespassing on foreign sovereignty that until 1979 it was not possible
to serve the writ itself, the law instead requiring that the defendant be served with notice of the
writ. It was therefore largely accurate, if not particularly helpful, to say that English civil
4
Principally Companies Act 1985 ss 691-695, though Civil Procedure Rules (“CPR”) Part 6 is also applicable to
service on companies, including oversea and unregistered companies.
5
The grounds on which a sea-going ship may be arrested to secure a claim, and may be arrested to found
jurisdiction, overlap but are not identical.
6
Now to be found in CPR Part 6 rr 19-22.5
It is sometimes difficult for outsiders to understand what underpins rules of common law
jurisdiction. For an English lawyer looking at a civilian system, there is also a danger of not
understanding what one thinks one has seen. The reason is, in part, because what appear to be
the rules of jurisdiction are not the whole of the story. We know that there are jurisdictional rules