CIVIL JURISDICTION AND JUDGMENTS BY ADRIAN BRIGGS, QC Professor of Private International Law at the University of Oxford, Sir Richard Gozney Fellow and Tutor in Law at St Edmund Hall, Oxford, Barrister at Blackstone Chambers, Temple SEVENTH EDITION LLOYD’S COMMERCIAL LAW LIBRARY Series Editors: Robert Merkin and Hakeem Seriki Commercial Agents and the Law Severine Saintier and Jeremy Scholes Freezing and Search Orders Fourth edition Mark S. W. Hoyle The Practice and Procedure of the Commercial Court Sixth edition Anthony Colman, Victor Lyon and Philippa Hopkins Financial Crisis Management and Bank Resolution Edited by John Raymond LaBrosse, Rodrigo Olivares-Caminal and Dalvinder Singh Deceit The Lie of the Law Peter MacDonald Eggers EU Competition Law and the Financial Services Sector Andrea Lista Foreign Currency Claims, Judgements and Damages Michael Howard, John Knott and Howard Kimbell Vitiation of Contractual Consent Peter MacDonald Eggers Conduct and Pay in the Financial Services Industry The Regulation of Individuals Thomas Ogg and Richard Leiper Contractual Estoppel Alexander Trukhtanov Civil Jurisdiction and Judgments Seventh edition Adrian Briggs For more information about this series, please visit: www.routledge.com/Lloyds-Commercial-Law-Library/book-series/LCLL CIVIL JURISDICTION AND JUDGMENTS BY ADRIAN BRIGGS SEVENTH EDITION Seventh edition published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Adrian Briggs The right of Adrian Briggs to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by LLP 1993 Sixth edition published by Informa Law from Routledge 2015 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-41532-7 (hbk) ISBN: 978-0-367-72044-5 (pbk) ISBN: 978-0-367-81507-3 (ebk) Typeset in Times New Roman by codeMantra Lloyd’s is the registered trade mark of the Society incorporated by the Lloyd’s Act 1871 by the name of Lloyd’s. CONTENTS Preface xxiii Post Scriptum: The Latest News xxvii Table of Cases xxix Table of Statutes lxxix Table of Statutory Instruments lxxxiii Table of Civil Procedure Rules lxxxvii Table of European Legislation xci PART A THE LAW AND THIS BOOK 1 CHAPTER 1 GENERAL 3 1.01 Civil jurisdiction and judgments in the age of Brexit and Covid 3 1.02 General introduction 4 1.03 European law in English courts 6 1.04 The Brussels Conventions 7 1.05 The Lugano Conventions 8 1.06 The Brussels I Regulation: Regulation (EC) 44/2001 9 1.07 The Brussels I Regulation ‘recast’: Regulation (EU) 1215/2012 10 1.08 Secondary sources of law 10 1.09 References to the European Court for a preliminary ruling 11 1.10 The authority of decided cases 12 CHAPTER 2 BREXIT AND ITS EFFECT ON THE LAW 13 2.01 Brexit in a nutshell 13 2.02 The principal points of primary legislation directly resulting from Brexit 14 2.03 Secondary legislation: provisions ceasing to have legal effect 16 2.04 Laws which remain in effect despite the Brexit legislation 18 2.05 Non-retained EU Laws with temporary effect after Completion Day 19 2.06 Legal developments liable to take place on or after Completion Day 20 2.07 If the United Kingdom does not participate in the Lugano Convention 21 2.08 Disclaimer 24 v CONTENTS PART B JURISDICTION ACCORDING TO THE LUGANO/BRUSSELS RULES 25 CHAPTER 3 T HE LUGANO CONVENTION AND ITS INTERPRETATION 27 3.01 Lugano rules or Brussels rules? 27 3.02 The Brussels Regulation in review 27 3.03 Jurisdictional connections with other territories 28 3.04 The Lugano II Convention 28 3.05 Lugano and Brussels: interpretation and relationship 29 3.06 Reconsideration of established interpretations? 31 3.07 General principles of interpretation 32 3.08 Technical terms bear an equal and uniform interpretation 32 3.09 The nature of autonomous interpretation 34 3.10 Purposive interpretation 34 3.11 Exceptions to general rules are construed narrowly 35 3.12 The risk of irreconcilable decisions must be minimised 36 3.13 Legal certainty, predictability, and proximity, should be supported 37 3.14 All Lugano courts are of equal authority 38 3.15 Securing uniformity of interpretation of the Lugano Convention 39 CHAPTER 4 T HE JURISDICTIONAL STRUCTURE OF THE LUGANO CONVENTION 41 4.01 The jurisdictional rules of the Lugano Convention 41 4.02 The hierarchy of jurisdictional rules in the Lugano Convention 41 4.03 The advantage of being first to commence proceedings 45 4.04 Prospective claimant 45 4.05 Prospective defendant 46 4.06 The lack of other ways to prevent a court exercising jurisdiction 48 4.07 Bringing substantive proceedings in spite of those in another court 48 4.08 Injunction to restrain the bringing of proceedings in other Lugano State 50 4.09 What a defendant should do if served with process 50 4.10 What a claimant may do if the defendant does not enter an appearance 51 4.11 The nature of the jurisdictional rules of the Lugano Convention 52 CHAPTER 5 M ATERIAL AND OTHER SCOPE OF THE LUGANO CONVENTION 54 5.01 General 54 5.02 Temporal scope 54 5.03 Geographical scope 55 5.04 Personal scope 55 5.05 International scope 56 5.06 Material scope of the Convention: Article 1 58 5.07 Matters excluded from the Convention: general interpretation 59 5.08 Civil and commercial matters: the meaning of ‘matters’ 61 5.09 Proceedings between private parties 62 5.10 Proceedings brought by public authorities against private parties 62 5.11 Proceedings brought against public bodies 66 vi CONTENTS 5.12 Private persons exercising public functions 68 5.13 Civil and commercial matters: excluded issues arising incidentally 71 5.14 Civil and commercial matters: proceedings forming part of a greater whole 72 5.15 Matters specifically excluded by Article 1 74 5.16 Personal capacity and status, marital property, wills and succession 74 5.17 Bankruptcy and insolvency 76 5.18 Social security 79 5.19 Arbitration: the broad principle 80 5.20 Arbitration and Regulation 1215/2012 82 5.21 Conclusion 84 CHAPTER 6 JURISDICTION UNDER ANOTHER CONVENTION OR INSTRUMENT 85 6.01 General 85 6.02 Existing (and new) conventions on particular matters 85 6.03 Incorporation by reference of jurisdiction from a particular convention 86 6.04 Maritime and other conventions 89 6.05 The 2005 Hague Convention on Choice of Court Agreements 90 6.06 Relationship between Lugano Convention and the Brussels Regulation 92 6.07 Conclusion 92 CHAPTER 7 EXCLUSIVE JURISDICTION, REGARDLESS OF DOMICILE 93 7.01 General 93 7.02 T itle to and tenancies of immovable property in a Lugano State: Article 22(1) 94 7.03 Proceedings having as their object rights in rem in immovable property 95 7.04 Claims based on personal obligations relating to land 97 7.05 A dispute which requires the application of principles of land law 99 7.06 Proceedings having as their object tenancies of immovable property 100 7.07 Proceedings in which Article 22(1) is raised by the defence, not the claim 103 7.08 Short private lettings: concurrent exclusive jurisdiction 104 7.09 Immovable property in the United Kingdom 104 7.10 Immovable property in a non-Lugano State 105 7.11 Companies with their seat in a Lugano State: Article 22(2) 105 7.12 Corporate validity as the principal element in the proceedings 106 7.13 The jurisdictional effect of imperfections in corporate decision-taking 107 7.14 The seat of the company for the purpose of Article 22(2) 110 7.15 Company with seat in the United Kingdom 110 7.16 Validity of entries in public registers in Lugano States: Article 22(3) 111 7.17 Registers in the United Kingdom 111 7.18 Intellectual property rights registered in Lugano States: Article 22(4) 111 7.19 Invalidity raised as a defence to an infringement claim 112 7.20 Claims involving multiple national patents 114 7.21 Deposit or registration in the United Kingdom 116 7.22 Enforcement of judgments from Lugano States: Article 22(5) 116 7.23 General 117 7.24 Orders made in relation to judgments from other Lugano States 118 vii CONTENTS 7.25 Enforcement orders made in aid of English judgments 118 7.26 Judgments from non-Lugano States 121 7.27 Enforcement of judgments from Lugano States in the United Kingdom 121 7.28 Article 22 and connections which would point to a non-Lugano State 121 7.29 Conclusion 122 CHAPTER 8 J URISDICTION BY ENTERING AN APPEARANCE 123 8.01 General 123 8.02 Entering an appearance, rather than submission 124 8.03 Appearance to contest the jurisdiction of the court 125 8.04 Contesting the jurisdiction of the court: procedure 128 8.05 Appearance by insured, consumer, or employee 128 8.06 Conclusion 128 CHAPTER 9 J URISDICTION IN MATTERS RELATING TO INSURANCE 129 9.01 General 129 9.02 Structure of and approach to Section 3 of Title II 130 9.03 Professional and ‘insurance-professional’ relationships 132 9.04 General jurisdictional rules for Section 3 cases: Articles 9 to 12 135 9.05 Agreements on choice of court: Articles 13 and 14 136 9.06 International jurisdiction in the courts of the United Kingdom 139 9.07 Conclusion 139 CHAPTER 10 J URISDICTION IN MATTERS RELATING TO CONSUMER CONTRACTS 140 10.01 General 140 10.02 General scope and purpose of Section 4 of Title II 141 10.03 The professional counter-party: Article 15 142 10.04 Making a contract as consumer 143 10.05 Making a contract for mixed purposes 145 10.06 Matters relating to a contract: prize cases 146 10.07 Matters relating to a contract: rescission and repayment claims 148 10.08 Parties to the contract; parties to the proceedings 149 10.09 The three kinds of consumer contract to which Section 4 applies 150 10.10 Contracts of sale on instalment credit terms 150 10.11 Contracts made to finance the sale of goods 150 10.12 C ontracts with those who pursue activities in or direct activities to a Lugano State 151 10.13 Jurisdictional rules for contracts within Section 4: Article 16 154 10.14 Agreements on choice of court: Article 17 155 10.15 Additional legislative provision for small claims 156 10.16 International jurisdiction in the courts of the United Kingdom 156 10.17 Conclusion 157 viii CONTENTS CHAPTER 11 JURISDICTION IN RELATION TO INDIVIDUAL CONTRACTS OF EMPLOYMENT 158 11.01 General 158 11.02 General scope and purpose of Section 5 of Title II 158 11.03 Section 5 of Title II and powerful relationships 160 11.04 Section 5 and work relationships pretending not to be employment 162 11.05 Former employment 164 11.06 The relationship between the claim and the employment 164 11.07 Jurisdictional rules under Section 5: Articles 18 to 21 166 11.08 Employment and duties in more than one Lugano State 167 11.09 Agreements on jurisdiction 170 11.10 International jurisdiction in the courts of the United Kingdom 171 11.11 Conclusion 172 CHAPTER 12 JURISDICTION AGREEMENTS FOR A COURT IN A LUGANO STATE 173 12.01 General 173 12.02 The function and effect of an agreement on jurisdiction 174 12.03 Managing jurisdictional disputes arising from agreements 176 12.04 The nature of agreement on the jurisdiction of courts 178 12.05 Formal requirements for an agreement on jurisdiction: general 180 12.06 A greement of the party to be bound, in writing, or evidenced in writing 181 12.07 Agreement according with the parties’ established practices 185 12.08 Agreement according with the practices of international trade 185 12.09 J urisdiction agreement incorporated from one document into another 186 12.10 Domicile requirements for an agreement on jurisdiction 188 12.11 Article 23 and third parties: succession and substitution 189 12.12 A rticle 23 and third parties: subrogation and assignment in national law 192 12.13 Article 23 and the veil of incorporation 195 12.14 Agreement for the courts of two Lugano States 197 12.15 Agreeing to the non-exclusive jurisdiction of a Lugano State court 198 12.16 Asymmetrical jurisdiction agreements 198 12.17 Non-geographical designation of court agreed to 199 12.18 Agreement for the courts of the United Kingdom 200 12.19 Disputing the formal validity of the jurisdiction agreement 201 12.20 Challenges to the substantive validity of the jurisdiction agreement 202 12.21 Scope of the jurisdiction agreement 204 12.22 Jurisdiction agreements in trust instruments 207 12.23 Jurisdiction by agreement derived from other contractual terms 208 12.24 Agreements for non-Lugano courts: 2005 Hague Convention 208 12.25 Agreements for non-Lugano, non-Hague, courts 209 12.26 Conclusion 210 ix