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Czech Chancer? Cornwall Cowboy? 5 steps to know where to sue.

Czech Chancer? Cornwall Cowboy? 5 steps to know where to sue.

Whether the company or individual you wish to sue is based in Scotland, elsewhere in the UK, the EU/EFTA region, or out-with the EU, determining which court has jurisdiction can be tricky. The court’s jurisdiction refers to its entitlement to hear an action and make a decision. It is helpful to know that at when forming the contract, you can specify which court any dispute will be heard in. However, if the contract is silent on jurisdiction, the best place to start is finding out which of these four regions the defender is based in. In cases where the dispute contains a foreign element, it is not simply a case of choosing your preferred court. There are various rules and principles which govern this matter.

  1. What Rules Apply?

There are four main provisions to consider in determining which court has jurisdiction to hear a cross-country or even a home-grown dispute.

Defender based in:

Relevant legislation:

EU

Brussels I Recast

EFTA (Iceland, Lichtenstein, Norway and Switzerland)

Lugano Convention

Inter-UK

Civil Jurisdiction and Judgments Act 1982 – Schedule 4

Scotland and non-EU/EFTA

Civil Jurisdiction and Judgments Act 1982 – Schedule 8

Even if your defender is based in Scotland, elsewhere in the UK, or out-with the EU, the rules which apply are based on the Brussels I Recast. You will need to be aware of these before you can determine which court has jurisdiction.

  1. What if I am suing within the EU and EFTA region?

The Brussels I Recast (BIR) stipulates the jurisdictional rules which apply when suing in a civil or commercial matter, where the individual or company you are suing is based in the EU. The Lugano Convention simply extends the scope of the Recast to EFTA countries.

Domicile

The primary jurisdiction rule is that the action should be raised where the defender is domiciled. For an individual, the method of determining domicile varies per Member State. In the UK, an individual is domiciled where they have been resident for 3 months or more

For a company or juristic person, its domicile is the place where its registered office, central administration or principal place of business is situated.

Suing in another EU jurisdiction can be expensive, confusing and, frankly, off-putting. However, to every rule there is an exception which may be preferable to your claim. Some disputes may have a particularly close connection with somewhere other than the defender’s domicile.

  1. What type of dispute am I suing in respect of?

Contractual Disputes

 If your dispute relates to a breach of contract, you can to bypass the domicile rule and instead sue in the place of performance of the contract. For example, the place where your goods were (or should’ve been) delivered, or where the services were (or should’ve been) provided.

You should take full legal advice on (i) ensuring the matter relates to a contract; (ii) finding out the principal obligation if there are multiple; and (iii) locating the performance of the obligation. 

Delictual Disputes

You may alternatively be suing for some sort of harmful event which you hold the other party liable for. In such circumstances, you can raise your claim in the place where the harmful event occurred, or may occur.

The place where the harmful event occurred can be (i) the place where the damage occurred; or (ii) the place giving rise to the damage. Please be mindful that you can only sue in the place where you suffered direct damage, for example the cost of your destroyed goods in Italy. You cannot sue in the place of any indirect damage, such as the financial loss from not being able to sell those goods in Scotland. 

  1. What other exceptions apply?

Multiple defenders

You may be suing more than one party in the action as long as their liabilities relate to the same cause. Sue your EU defender in their domicile and bring in the others. Simple.

Consumers

A consumer acting out-with their trade or profession is heavily protected. A consumer may only be sued in their domicile.

Exclusive Jurisdiction

Exclusive jurisdiction means that a specific court is uniquely entitled to hear the dispute. These matters include, but are not limited to:

  • Immovable property and temporary private tenancies up to 6 months –the court where property is situated
  • Dissolution etc. of companies – the court where its registered office is situated
  • Validity/transfer of patent rights/trademarks – the court where the registration was applied for

Prorogation

As mentioned above, you can agree, by contract, where a dispute will be settled, conveniently bypassing the existing rules if the agreement is explicit and consensual. 

Lis pendens

The race to court. The court in which the action was first raised takes priority unless there is a prorogation agreement.

  1. What differs when the defender is based in Scotland, the rest of the UK, or out-with the EU?

As discussed, when suing a UK or non-EU domicile defender, the rules contained within the Brussels I Recast apply, with some additional rules detailed below.

Inter-UK

The Civil Jurisdiction and Judgements Act 1982 allocates jurisdiction to the appropriate part of the UK. Again, the primary rule is to sue where the defender is domiciled. However, the Recast’s Insurance provisions do not apply.

Scotland or non-EU/EFTA

The Civil Jurisdiction and Judgements Act 1982 applies in this instance. Again the rules of the Recast apply, but if the defender is of non-UK/EU/EFTA domicile, they must be sued in the place where they have immoveable property interests, or where any moveable property of theirs has been arrested.

Furthermore, although a court may be deemed to have jurisdiction, in inter-UK cases or where the defender is of non-UK/EU/EFTA domicile, the defender can argue that another court is more appropriate. This is called forum non conveniens and relevant factors include location of witnesses and the possibility of denied justice.

Unless provided for in a contract, jurisdiction is a tricky issue. It’s important to get this right. You don’t want to commence expensive proceedings in the wrong jurisdiction only to have them thrown out. If you need help on how, or where, to raise an action, MBM Commercial can offer full legal advice on this matter.

Are you looking to sue someone and are not sure in which jurisdiction to raise your claim?

 If you have any questions then please contact our Dispute Resolution team on 0131 226 8200.

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