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Jurisdiction 121

4
Jurisdiction
NATURE OF ACTIONS IN PERSONAM
Actions in personam are brought to establish rights and responsibilities as
between the parties to the proceedings. Such actions may include claims
to damages in contract or tort, or the right to specific performance of a
contract, or the right to an injunction to restrain or compell the doing of
something. According to Morris, these actions do not include Admiralty
actions in rem, probate actions, administration actions, petitions in
matrimonial causes, or for guardianship or custody of children, or
proceedings in bankruptcy or for the winding up of companies.
1
The genre
does however encompass actions for maintenance or for alimony.
The most outstanding feature of the rules for jurisdiction in actions in
personam is their essentially procedural nature. There is, in general, little
concern for any substantial connection between the parties and the forum,
or the subject matter of the dispute and the forum. As a rule, any person
may invoke the courts jurisdiction or become amenable to that jurisdiction,
provided only that the defendant is properly served with process. Process is
normally a writ, but may be a summons or other claims document.
There are three bases upon which jurisdiction is normally founded. A
defendant in an transnational action is amenable to jurisdiction by service
of process pursuant to his or her presence within the jurisdiction, voluntary
submission, or where the court allows service of process upon him or her
122 ELEMENTS OF PRIVATE INTERNATIONAL LAW
outside the jurisdiction pursuant to O.11 or other similar statutory
authority.
2
These matters are discussed below.
In exceptional circumstances competence may be denied because the
court does not have jurisdiction over the subject matter of the dispute,
even though, all else considered, the requirements for in personam
jurisdiction are satisfied. Subject-matter jurisdiction is well developed in
United States where constitutional and statutory provisions in each state
authorise particular courts to entertain certain types of cases and not others,
and demarcate the competency of federal as contrasted with state courts.
In the Anglo-Caribbean system the concept is linked to the notion that
actions based upon rules or situations with respect to which the interests
of a particular foreign state is paramount should give rise to the exclusive
jurisdiction in the courts of that state. The isolated circumstances where
this notion arises are considered below.
Two final preliminary points are worth making. First, there is an
established practice in many common law jurisdictions whereby judges
exercise discretion to refuse to hear cases in respect of which personal and
subject matter jurisdiction have been established. The nature, exercise and
probity of this discretion are discussed in the chapter following. Secondly,
in cases covered by sovereign or diplomatic immunity, the forum will have
no jurisdiction even though, all else considered, it has competence over the
parties and over the subject matter of the dispute. The doctrine of immunity
is covered in many books on public international law.
3
BASES FOR JURISDICTION
Presence
Service of a writ or equivalent process upon a defendant whilst he or she is
present within the jurisdiction is the historically orthodox method of
establishing jurisdiction. The underlying consideration is that everyone
within the jurisdiction owes a sufficient degree of allegiance or at least an
obligation to the state and its courts to obey judicial decrees. The rule is
therefore based upon the duty of nationals, residents, and foreigners to
obey the laws of the countries in which they are present, and is thus related
to the concept of territorial sovereignty in public international law.
4
As was said by Viscount Haldane nearly 100 years ago,
5
The root
principle of the [local] law about jurisdiction is that the judges stand in
Jurisdiction 123
the place of the Sovereign in whose name they administer justice.
Accordingly, whoever is served with the [Sovereigns] writ, and can be
compelled consequently to submit to the decree made, is a person over
whom the Courts have jurisdiction. Given that the foundation of
jurisdiction is physical power
6
the actual degree of connection between
the defendant and the forum is immaterial. It does not matter that the
stay was temporary or that the presence was fortuitous in that it was
unconnected with the litigation. Once the defendant is in the country
service can be effected, and once service had been effected the court has
jurisdiction.
Individuals
HRH Maharanee of Baroda v Wildenstein
7
illustrates beautifully the rule
that the physical presence of the individual is a sufficient basis for
jurisdiction. The plaintiff, an Indian princess and resident of France,
purchased a painting from the defendant, a French art dealer who also
resided in France. The sale took place in Paris with the defendant
representing that the painting was La Poesie by Boucher. When the plaintiff
discovered that the painting had not in fact been done by Boucher but by
one of his disciples, she issued a writ in England claiming rescission of the
contract and repayment of the price. She chose England as the place of
trial because she could get a speedier trial and could subpoena expert
witnesses.
The writ was served on the defendant when he paid a fleeting visit to
England to attend the Ascott races. He applied to have service set aside on
the ground that it was frivolous and vexatious and an abuse of the process
of the court. It was held that the application would be dismissed. The
defendant had been properly served with the writ during his presence in
England and the plaintiff was therefore entitled to require the courts to
proceed to adjudicate upon the merits of the claim. Lord Denning declined
to accede to the application for setting aside of process. The princess and
the art dealer had established social and sporting connections with England.
Besides, the subject matter of the litigation, art, was international and
therefore unlike an action in respect of a road accident in Rome, when two
Italian citizens were in collision.
Colt Industries v Sarlie
8
casts some doubt on whether these background
reasons for refusing the application are necessarily sufficient ones. The
plaintiff was a New York company and the defendant was an American
citizen, and the dispute concerned an American debt. Nonetheless, the
plaintiff had a writ served on the defendant while he was staying for a few
124 ELEMENTS OF PRIVATE INTERNATIONAL LAW
days at a London hotel for purposes unconnected with the litigation. It
was held that the English courts had jurisdiction.
Moreover, once jurisdiction is established on the basis of presence, the
court is not rendered incompetent by the mere fact of the defendants
departure from the country. As with jurisdiction in matrimonial proceedings,
the golden rule is once competent, always competent.
Corporations
A Corporation is a figment of the legal imagination and therefore cannot
literally be physically present in the forum. Local companies, that is,
companies registered in the Caribbean country concerned, are required to
have a local registered office.
9
Under traditional doctrine, service could be
effected at the registered office. The Jamaican Act provides that process
may be served on the company by leaving it at or sending it by post to the
registered office of the company.
10
The Barbados, and Trinidad and Tobago
Acts are more expansive. Service may be effected by leaving the document
at, or sending it by telex or by prepaid post or cable addressed to the
registered office of the company.
11
Moreover, under these statutes, service
may also be effected, by personally serving any director, officer, receiver,
receiver-manager or liquidator of the company.
12
In appropriate cases an
order for substituted service upon an insurance company resident within
the jurisdiction may be obtained in respect of an action against the insured
who cannot be traced or who is outside the jurisdiction.
13
Foreign companies present more abstract problems. At common law
presence was equated with the establishment of a place of business in the
forum. A foreign company could only be served with process within the
jurisdiction if it was carrying on business at a place within the jurisdiction.
This required first, that the company must have done business in, not
merely with the Caribbean country, and second, that the transactions must
have been effected from a fixed place of business for a definite period of
time.
14
So, in Humphrey v Jolly Roger Cruises Inc.,
15
the mere presence of
travel agents in the country who could advertise about but not book cruises
on the defendants pleasure boat indicated that the links between the
defendant and the country were too tenuous to give the defendant a presence
there.
16
Legislation has intervened to regulate service on companies incorporated
outside but carrying on business within the forum.
17
Such companies are
required to deliver documents to the Registrar of Companies, including a
list of directors and the names and addresses of someone resident in the
Jurisdiction 125
country authorised to accept service of process on behalf of the company.
18
Any process may be served on a foreign company if addressed to any person
so authorised to accept service and left or sent by post to that persons
address. Where this is not possible by reason, for example, that the company
did not deliver the necessary particulars to the Registrar or the authorised
persons have died, service may effected by leaving the document at or
sending it to any place of business established by the company in the
country.
19
Construction of the notion of place of business under the statute was
initially assumed to be the same as at common law.
20
But the English
Court of Appeal decision in South India Shipping Corpn Ltd v Export-Import
Bank of Korea
21
casts doubt upon this apparently reasonable assumption.
It was held that a Korean bank, which had an office in London for the
purpose of publicity, and gathering information and maintaining public
relations with other banks, had a place of business in England. This was
the case even though the bank concluded no banking transactions at the
London office but merely carried out preliminary work in relation to granting
or obtaining loans. Throwing off the common law rigid list of requirements,
Ackner LJ said that Parliament has placed no express qualification or
limitation on the words a place of business and there seems no good
reason why we should imply one.
22
Presence by Trickery
Watkins v North American Land and Timber Company Ltd.,
23
raised the
possibility that jurisdiction may be denied in circumstances where the
plaintiff was deliberately tricked by the defendant into coming within the
territorial limits of the country. The appellant was a citizen of the United
States and permanently resident in the State of Kansas. The respondent
was a company registered under the English Companies Act with the object
of acquiring land in the United States. In 1883 the respondent appointed
the appellant as their general manager in America but serious difficulties
arose between them in 1901 that resulted in considerable litigation in
America. On August 26, 1901, the respondent issued a writ in the current
action claiming to recover moneys had and received by the appellant for
the respondents use. The appellant had no notice of the writ.
The respondent invited the appellant to England suggesting that there
he could meet its directors and shareholders with a view to discussing and,
if possible, settling the matters in dispute. It was made clear that this was
a personal invitation, which could be satisfied only by the presence of the
126 ELEMENTS OF PRIVATE INTERNATIONAL LAW
appellant. In response to this invitation the appellant arrived in London
on June 28, 1902. On June 30, 1902, the chairman of the company called
on the appellant, and after exchanging the usual courtesies served the
appellant with the writ issued on August 26, 1901. The appellants attempt
to set aside service of the writ of summons in the action and all subsequent
proceedings failed before Mr. Justice Kekewich and the Court of Appeal.
On appeal to the House of Lords, it was held that in the absence of a
finding of fraud, the appeal must fail. If the directors had no real intention
of discussing matters with the appellant, and their invitation had been a
mere pretext for getting him within the jurisdiction in order to serve the
writ then jurisdiction would be denied. But if there had been a real intention
to discuss the other matters in difference, although the directors also
intended to serve the writ, the appellants case would not be made out. In
the affidavits filed on the part of the respondent, upon which there had
been no cross-examination, it was stated that up to the day when the writ
was served it was the intention of the Board to meet the appellant and
discuss all his charges and alleged grievances. It did not occur to the Board
that the issue or service of the writ would prevent them from doing so.
Accordingly, the Court could not properly have held that the charge of
fraud had been proved, and jurisdiction could be maintained.
This is a very interesting decision.
24
Where the plaintiff possesses dual
motives for inviting the defendant within the jurisdiction, that is, to
negotiate towards a resolution of the dispute and to commence legal
proceedings, service of process will not adversely affect the competence of
the court unless fraud can be proved. Proof of fraud requires overcoming a
very heavy burden, and attorneys are trained not to alleged fraud unless
personally convinced of it. At the same time, negotiations can always break
down. Each party (and therefore the plaintiff ) has a monopoly over its
success. In effect, then, the plaintiff appears to be given near monopolistic
control over whether the defendants presence in the jurisdiction can be
construed as trickery.
Furthermore, the cases do not make clear whether, in the face of trickery,
jurisdiction is vitiated without more or merely not exercised on the grounds
of equity. If it is the latter, then there may be a case, in appropriate
circumstances, for weighing the undesirable conduct of the plaintiff against
any untoward conduct by the defendant in assessing whether to exercise
jurisdiction. Nor is it clear whether jurisdiction can be sustained if a third
party tricks the defendant into coming within the jurisdiction.
Jurisdiction 127
Submission
A defendant, whether individual or corporation, not otherwise subject to
in personam jurisdiction may be precluded by conduct from objecting to
that jurisdiction. If the defendant voluntarily submits to the jurisdiction
of the court, then the court will have jurisdiction over that defendant. As a
matter of practical importance, the present concern boils down to
ascertaining the circumstances in which submission will be deemed to
have occurred. Several distinct possibilities may be identified.
Commencement of action, acceptance of process, litigation on merits
A person who commences an action as plaintiff or who instructs his or her
attorney to accept service will obviously be deemed to have submitted to
jurisdiction. Acceptance of service refers in this context to the unconditional
acceptance of process. Similarly, a defendant who, whether personally or
through legal representatives, contests the case on the merits and loses. In
this context, actions of the attorney are imputed to the defendant.
Jurisdiction Clause
Contracting parties may select the forum for the adjudication of any dispute
arising under their contract. There is a case of submission where the
jurisdiction clause elects the forum as the place for litigation.
25
Service of
process may be effected directly upon the defendant; or if the defendant is
abroad, the defendants representative; or at an appropriate place of business.
Procedural rules may even allow service of process upon the defendant in a
foreign country outside of the strictures of Order 11. This procedure parallels
one of the methodologies by which the International Court of Justice
assumes jurisdiction over inter-state claims.
26
Contesting Litigation
Appearance solely to protest jurisdiction
Whether acknowledgement or even acceptance of service merely to protest
against the alleged jurisdiction of the court amounts to submission is
unclear. It may be that a person who is outside of the jurisdiction feels
compelled to respond in some way to the service of process for fear that any
assets there will be seized to satisfy judgement in default of appearance.
The person may be unable to extract the assets from the country because
the other side will usually seek a Mareva injunction to avoid their removal.
Even in circumstances where the person has no property in the country, a
response may be mandated because a judgment in default may be enforced
128 ELEMENTS OF PRIVATE INTERNATIONAL LAW
in the country where the assets are located by reference to the law governing
recognition and enforcement of foreign judgments.
27
Re Dulles Settlement Trusts (No. 2)
28
involved a father, an American
citizen, who had obtained a divorce and subsequently an order for custody
of the infant child of the marriage from the French courts. The infant (by
his mother as next friend) brought a summons in England asking for the
mother to be given custody and also that provision be made for his
maintenance. No direct claim was made on the father for maintenance,
but (although he was not a party to the action) a copy of the summons was
sent to his solicitors. Through them, the father, who was then living in the
United States, contested, ultimately unsuccessfully, the mothers claim for
custody. He also opposed any order for maintenance being made against
him on the ground that the court had no jurisdiction to make such an
order, and further, that the infant and not the mother had made the
application.
It was held that while the father must be taken to have submitted to
the claim for custody, he had not submitted to the claim for maintenance.
In respect of the latter, he had not fought the claim on the merits, and had
not, by his technical objection as to parties, submitted to jurisdiction.
Denning LJ could not see, how anyone can fairly say that a man has
voluntarily submitted to the jurisdiction of a court when he has all the
time been vigorously protesting that it has no jurisdiction.
29
There was no
difference in principle between the person who merely does nothing and
another who actually goes to the court and protests that it has no
jurisdiction.
30
In coming to his conclusion in Re Dulles Settlement, Denning LJ
thought that the earlier case of Harris v Taylor
31
was in conflict and sought
to distinguish it. In the latter case the plaintiff has sued the defendant in
the Isle of Man for the tort of loss of consortium and criminal conversations
with the plaintiff s wife. This tort had been committed in the Isle of Man.
The defendant was in England but the Manx court gave leave to serve him
out of its jurisdiction on the ground that the cause of action was founded
on a tort committed in the Isle. The defendant entered a conditional
appearance in the Manx Court and took the point that the cause of action
had not arisen within the Manx jurisdiction. That point depended on the
facts of the case and was ultimately decided against him. Thereafter he
took no further part in the proceedings. The plaintiff, having obtained
judgment in default, sought to enforce it in England. It was held that the
Jurisdiction 129
judgment could be enforced because the defendant had submitted to the
jurisdiction of the Manx Court.
Denning LJ thought that Harris v Taylor was no authority on what
constituted submission to jurisdiction generally. It was merely an authority
on res judicata. The English courts could not allow the defendant to contest
service on him out of the Manx jurisdiction, because that was a point he
had raised unsuccessfully in the Manx court. He had not appealed against it.
However, it may well be that the exhumation of Harris was unnecessary.
For one thing, that case dealt with submission to a foreign court, whereas
Re Dulles was concerned with submission to the forum. Arguably, then,
Harris was not on point. More substantially, it has been persuasively argued
that the submission in Harris could be deemed to have been on the merits
and was not strictly an appearance to protest.
32
This view is derived from
the nature of the conditional appearance, which is an appearance for all
purposes except the reservation of the right to challenge the service out of
process. Where the challenge fails the appearance is converted into an
unconditional acceptance of the jurisdiction.
In Henry v Geopresco,
33
another case on the English enforcement of
foreign judgments, Roskill LJ, delivered the judgment of the Court of
Appeal. He disagreed, with the most profound respect, that Harris v Taylor
was merely an authority on res judicata. He found the reasoning by Denning
LJ, circular since the decision of the Isle of Man Court could only be res
judicata if the defendant was bound by it, and he was bound by it only if
his actions constituted voluntary submission. Doubts were expressed about
whether the decision in Re Dulles Settlement (No. 2) could itself be supported
since it was impossible to see how the fathers appearance was limited to
wardship and custody proceedings.
34
In any event, the Court found:
The authority of Harris v Taylor [was left] wholly unshaken. It follows that we
find ourselves unable to agree with the statement by Lord Denning that Harris v
Taylor is not an authority on what constitutes a submission to jurisdiction. So far
as this court is concerned it is binding authority on that subject.
35
On the primary question concerning whether appearance solely to
protest against the jurisdiction is without more to be equated with voluntary
submission, the following was said:
The defendant need not appear there, conditionally or unconditionally. He can
stay away. But as the cases say, he may prefer to take his chance upon a decision in
his favour. If he does so, he must also accept the consequences of a decision against
him.
36
130 ELEMENTS OF PRIVATE INTERNATIONAL LAW
As shown earlier, this is a rather simplistic view of the options available
to a defendant anxious to protect ownership of property. In any event, in
the final analysis, the Court expressly refused to decide the issue since:
The dividing line between what is and what is not a voluntary submission and what
is and what is not an appearance solely to protest against the jurisdiction is narrow
and may often be difficult to draw satisfactorily. But, as we think, it must depend
in each case upon what it was that the defendant did or refrained from doing in
relation to the jurisdiction of the foreign court.
37
As pointed out, both Harris v Taylor and Henry v Geopresco were decisions
on the enforcement of foreign judgements. Any temptation to distinguish
them from Re Dulles Settlement Trusts on this basis would be all the more
alluring because of the principle that, in order for its judgment to be
enforceable the foreign court must have exercised jurisdiction in a manner
recognised by the forum as sufficient to ground jurisdiction. This may not
be synonymous with the individual grounds upon which the forum asserts
its own jurisdiction.
38
Where the same concept is used, in this case,
submission, the question is whether it would be taking matters too far to
suggest that that notion is interpreted differently depending upon whether
the issue arose in the foreign, as opposed to the local court.
The conditional Appearance
A conditional appearance amounts to a complete appearance for all purposes,
subject only to the right reserved to set aside the service. Henry v Geopresco
drew a sharp distinction between entry of a conditional appearance and
appearance solely to protest the courts jurisdiction. The latter case was left
undecided. However, by the nature of the conditional appearance the
defendant admits that the court has compulsory jurisdiction under its
own local law and that it is within the discretion of the court whether or
not to exercise that jurisdiction. If therefore the defendant entered a
conditional appearance or takes some other comparable step, he is thereby
conditionally agreeing to submit to that jurisdiction. If his application to
set aside service then fails, that condition is fulfilled.
39
The nature and consequences of the conditional appearance were further
explained in Tigerair Inc., v Summrall.
40
Counsel for the plaintiff argued
that the defendants had submitted to the jurisdiction of the Supreme Court
of The Bahamas because they had neither entered a conditional appearance
nor applied to set aside the service of process. Malone J found that the
submission was not well founded. Had the defendants entered a conditional
appearance that would, under the Rules of the Supreme Court,
41
have
Jurisdiction 131
amounted to a complete appearance for all purposes, subject only to the
right reserved to set aside the service. A chance would therefore be taken
that his appearance, being voluntary, would be considered submission if
the court rejected his challenge to service. The safest course was therefore
not to enter a conditional appearance but simply to apply to set aside the
service on the ground that the court had no jurisdiction over him. That
was what the defendants had done.
An interesting gloss was placed upon this understanding of the law in
Windward Properties v The Governor General of St. Vincent and the
Grenadines.
42
In response to service by the plaintiffs, the defendants filed a
conditional appearance that was irregular. The plaintiffs did not seek to set
aside the irregular entry of appearance, as they could have done.
43
Instead,
they sought to argue that the appearance had become complete or
unconditional by reason of the defendants failure to apply within the time
limit for the setting aside of service. It was held that the irregular appearance
was of no effect and that the Registrar had properly given the defendants
leave to enter a new conditional appearance.
Contest to Exercise of Discretion
There is little doubt where the plaintiff appears, personally or through
attorneys, for the sole purpose of inviting the court to exercise its discretion
against assumption of jurisdiction, that should the court decline to accept
this invitation, the plaintiff will be deemed to have submitted. In Henry v
Geopresco International Ltd.,
44
the Alberta courts had competence under
their own local rules to exert jurisdiction over the defendant company
registered in Jersey and who had no branch or assets in Canada. Upon
being sued with process in Jersey the defendant applied to the Supreme
Court of Alberta for an order to set aside the service on the ground, inter
alia, that Canada was not the convenient forum for trial. It was held that
since the defendant had voluntarily appeared before the Canadian court to
invite it not to exercise the discretion it possessed under its own law to
assume jurisdiction, they had submitted to that jurisdiction. No thought
was expressly given to the fact that without the plaintiff s intervention, the
court would not have had competence in the international sense and that
the only point of that intervention was to contest jurisdiction.
Service Ex Juris
If the defendant is not present within the territorial limits of the forum,
and does not submit to jurisdiction, then the forum will only be competent
132 ELEMENTS OF PRIVATE INTERNATIONAL LAW
if process is properly served on the defendant outside the jurisdiction.
Service outside the jurisdiction is often referred to as service ex juris.
45
The
power to assume jurisdiction in this way is provided for in the Rules of the
Supreme Court, usually Order 11. A major objective of the order is to
allow cases that are closely connected with the forum, but in respect of
which no jurisdiction exists pursuant to presence or submission, to
nevertheless be tried in the forum. Such cases should be tried locally because
they are closely connected with or affect the interests of the forum in some
important way.
In order for service to be authorised, the plaintiff must receive leave
from the Supreme Court. Authority for the granting or leave is traditionally
contained in the Rules of the Supreme Court, Order 11, as continues to be
the case in Barbados
46
and in Trinidad and Tobago.
47
Modern revisions
have been undertaken in Jamaica
48
and in the Eastern Caribbean Supreme
Court.
49
Two features permeate the regimes; leave can only be granted
upon the plaintiff s satisfaction of two conditions. Lord Diplock referred
to these conditions in Amin Rasheed v Kuwait Insurance Company
50
as two
obstacles: the obstacle of jurisdiction and the obstacle of discretion.
Obstacle of Jurisdiction
In order to obtain leave, the first requirement is that the plaintiff must
bring the case within one or more of the categories of Order 11. This is a
question of law, or more specifically, a question of construction of the Order,
akin to the notion of statutory interpretation. This question is in the best
sense procedural and therefore falls to be determined by local law alone
subject, of course, to any contrary legislative provisions. If the plaintiff
cannot surmount this first obstacle then the case fails at this point and the
court cannot allow service out.
Any procedural requirements must be fully complied with. Thus, it is
the responsibility of the plaintiff to make clear the intention to seek service
out so that proper consideration can be given to the application. In
circumstances where the defendant is resident both within and outside the
jurisdiction, it is incumbent upon the plaintiff to indicate whether service
is to be effected at the local or foreign address. Where local service is intended
the writ is likely to be stamped with the endorsement Not for service
outside the jurisdiction. Failure to have the writ so stamped is an
irregularity and a ground for setting service aside, even if the plaintiffs
intended to serve the writ on the defendants if they came within the
Jurisdiction 133
jurisdiction at any time.
51
The address as well as the name of the defendant
is a necessary part of the writ. Even if the writ is for service within and not
outside of the jurisdiction, it will still not be sealed if the Court observes
that there was no address of the defendant on it or if there is only a foreign
address.
To similar effect may be read the case of Bahamas International Trust
Company Limited v Lisk Wyckoff.
52
This involved service outside the
jurisdiction upon a firm. While a firm carrying on business within the
jurisdiction could be sued in the firm name, there was no such provision in
Order 11 permitting firms outside of the jurisdiction to be thus sued and
served. Individual partners had to be named. Accordingly, service ex juris
effected upon the firm was set aside.
Contrast the case of Marics and Company Ltd., v Florence White.
53
Service
was effected on the defendant outside of the jurisdiction in a case where
the subject matter of the action was immovable property situated within
the jurisdiction. No order or leave had first been granted for service out.
The Court accepted that this was an irregularity but pointed out that the
defendant had not moved the court within the statutorily provided seven
days after entry of appearance to have the writ set aside. It refused to set
aside service since the defendant had never protested jurisdiction but had
rather submitted to and taken full part in the proceedings after knowledge
of the irregularity of service.
Satisfaction of Legislative Requirements
Strict fidelity to the local legislative provisions means that service out cannot
be allowed simply because such service is permissible under the English
provisions. This was made clear in the Trinidad and Tobago case of McCarthy
v Pawan.
54
Rees-Davis CJ found that provision was made under the English
rules for service out of the jurisdiction of certain classes of originating
summonses but that the local rules did not do so. The local rules dealt
fully with service out of the jurisdiction as regards writs but contained no
reference to originating summonses. Although Order VI did make reference
to service out of the jurisdiction of originating summonses, it was too
indefinite to convey the necessary statutory authority.
Neither can service out be allowed in a case where the legislative
provision is not satisfied, as was illustrated in Mauroux v Soc.Com. Abel
Pereira Da Fonseca SARL.
55
The plaintiff wrote from England to the
defendant in Portugal proposing that he should become sole agent to the
defendant for the export to England of their wines and, possibly, spirits.
134 ELEMENTS OF PRIVATE INTERNATIONAL LAW
After negotiations by correspondence and a face to face meeting in London
the plaintiff was, by a contract made in Portugal, appointed agent for the
British Isles. Subsequently the defendant terminated the contract on ground
of unsatisfactory performance. The plaintiff then sought to bring an action
for breach of contract in the English courts on the ground that by its terms
and implications the contract was governed by English law. However it
was held that Portuguese law governed the contract and therefore that
leave could not be given.
Categories for Service Out
For present purposes it will be convenient to consider five categories within
which the plaintiff may bring the case. These are the circumstances in
which the defendant is domiciled or resident in the forum; the plaintiff
seeks injunctive relief; the defendant is a necessary and proper party to the
litigation; certain contract actions; and certain actions in torts. Service out
of the jurisdiction in actions in personam is quite seriously restricted in
Admiralty proceedings,
56
but this matter is not given distinct treatment
here.
Domiciled or Ordinarily Resident
The forum can allow service out if the action is brought for a remedy
against a person domiciled or ordinarily resident within the jurisdiction.
57
This provision is necessary despite the basic rule regarding service pursuant
to presence, because a defendant may not be present in the jurisdiction at
a time when he is domiciled or ordinarily resident there.
In Re Liddells Settlement Trust
58
the wife of a husband domiciled and
resident in England took the four children of the marriage to live with her
in New York. The husband made the children wards of the English courts,
then obtained an order directing the wife to bring them back to England.
When she failed to do so a writ was issued sequestrating her property in
England. Dismissing her appeal against the sequestration of her property,
it was held that the Court had full jurisdiction to make the order although
she was outside of the country. Process had been served upon her in New
York and properly so by reason of the fact that relief was sought against a
person domiciled or ordinarily resident within the jurisdiction. In these
circumstances, the wife was within the reach of the court.
Jurisdiction 135
Injunctive Relief
Permission may be granted for service out in furtherance of the objective of
obtaining injunctive relief. The traditional wording of the Rules allows for
assumed jurisdiction when, in an action begun by writ, an injunction is
sought ordering the defendant to do or refrain from doing anything within
the jurisdiction, whether or not damages are also sought.
59
Modern versions
are less wordy, allowing a claim form to be served out of the jurisdiction if
a claim is made for an injunction ordering the defendant to do or refrain
from doing some act within the jurisdiction.
60
The two are, however,
probably to the same general effect.
To come within the letter of the Rule, the injunction must be sought
bona fide in a genuine dispute concerning whether some action by the
defendant in the Caribbean jurisdiction should be mandated or
prohibited.
61
Leave will not be granted if the injunction would be
ineffective,
62
or if a repetition of the action complained of cannot be
reasonably anticipated.
63
Leave was granted in James North & Sons Ltd v
North Cape Textiles Ltd.
64
and a permanent injunction ordered restraining
the defendants, who were domiciled in Scotland, from inducing breaches
of contract and torts within England. An injunction was also granted in
another instance to prevent serious harm to the plaintiff s reputation and
goodwill from the risk that its Internet domain name would be confused
with that of the defendant, whose site was dedicated to phone sex and
pornography.
65
But service out was refused in Rosler v Hilbery.
66
An injunction was
sought against a defendant solicitor in the forum restraining him from
parting with a sum of money belong to a foreign defendant. As the solicitor
had previously given an undertaking not to part with the money until
further order, the injunction was wholly unnecessary. It had been asked for
only to empower the court to make an order for substitute service under
another head of the Rules. Accordingly, the application for the injunction
failed.
Mareva Injunctions
For many years it was thought that the Rule did not cover the issue of a
Mareva
67
injunction. The freezing injunction, as it is also known, was
interlocutory and meant to restrain a defendant from removing his assets
from the jurisdiction, or from dissipating them, before the trial of the
action. In this way, the injunction is incidental to and dependent upon
the enforcement of a substantive right and could not exist on its own.
136 ELEMENTS OF PRIVATE INTERNATIONAL LAW
Furthermore, as the injunction was not the substantive remedy sought it
was considered that there was no power to allow service out in aid of it.
68
Two developments have eroded this position. Where the forum makes
an order for the mandatory stay of an action, it has become acceptable to
grant an injunction to secure interim relief. The House of Lords accepted
these sentiments in Channel Group v Balfour Beatty Ltd
69
although the
award was not considered appropriate in that case. Also, it has become
conventional to issue a Mareva injunction in support of foreign proceedings.
In Krohn v Varna (No. 2)
70
it was held that the Court could grant leave to
issue service outside the jurisdiction even where the only remedy claimed
against the defendant was a Mareva injunction in support of foreign
proceedings. A worldwide freezing order in aid of proceedings in a foreign
court was granted in Bank of China v NBM LLC.
71
These developments tended to undermine the traditional approach,
which, as far as Caribbean law is concerned, was probably interred in the
1990s. Thus in James Brodie & Co Ltd v Juarez
72
the Supreme Court of
Belize granted an injunction to restrain the defendant from removing out
of the jurisdiction, a truck detained at the Mexico border. The defendant
resided outside the jurisdiction, had no known assets in Belize other than
the truck, and the plaintiff, who had a valid claim for goods sold and
delivered to the defendant, had given an undertaking in damages.
73
There is some suggestion that the award of the Mareva injunction is
contingent upon the local court being the forum conveniens for the
proceedings.
74
Certainly there must be a clear risk of the relevant assets
being dissipated or removed prior to trial. Moreover, such an injunction
will only issue where it is just and convenient to do so.
75
Whether a freezing
injunction can be awarded in respect of assets not physically in the
jurisdiction was until recently considered doubtful, given the wording of
the rules.
76
But in Walsh v Deloitte & Touche Inc.
77
the Privy Council expressly
permitted a mareva injunction in respect of assets within and outside The
Bahamas notwithstanding that there was no statutory provision allowing
the grant of the freezing injunction.
Necessary or Proper Party
Traditionally, leave may be granted if the claim, being properly brought
against a person duly served within the jurisdiction, a person out of the
jurisdiction is a necessary or proper party thereto.
78
This requires
establishment of at least six conditions, some of which have been modified
or dispensed with under the new civil procedure rules adopted by the
Supreme Court in Jamaica
79
and the Eastern Caribbean.
80
Jurisdiction 137
1. Multiplicity of Parties
There must be a multiplicity of defendants. For the sake of simplicity we
may say that there must be at least two defendants: a first defendant who
is served, and a second defendant, whom the plaintiff or claimant now
wishes to serve out of the jurisdiction. Typical situations include instances
of joint liability as where debtors or tortfeasors are jointly liable to the
claimant.
81
Similarly, where the plaintiff has alternative claims against two
persons, as for example, where there is a claim against agents in the forum
for breach of warranty and against foreign principals for breach of contract.
82
But the defendants need not be jointly or even alternatively liable.
83
2. The Claim must be Properly Brought Against the First Defendant
There is the universal requirement that the case must have been properly
brought against the first defendant. This is an explicit condition under the
older version and an implicit requirement under the newer version of the
Rule. There must exist on the merits a serious issue to be tried in respect of
the first defendant. In other words, that person must not be served simply
as a strategy for making the second defendant answerable to the jurisdiction
of the Caribbean court. This allows the court to protect the second defendant
in circumstances, for example, where the first defendant, for whatever reason,
waives some procedural irregularity by voluntary appearance.
Whether this laudable objective is always achieved is debatable. Service
out was denied in Rosler v Hilbery
84
because the injunction was sought
merely as a ploy in order to obtain assumed jurisdiction over a foreign
defendant. But sometimes motive is difficult to ascertain; the courts attempt
to scrutinize whether applications are made bona fides but only God can
read the hearts of men. Where there is uncertainty on this point, the suit
may be given a pass. So, in Quinn v Pres-T-Con Ltd
85
the action in England
against the first defendant appears to have been started as a way of suing
the second defendants who had been directly responsible for the accident
in Trinidad. Nevertheless the English Court allowed service out on the
basis that the Trinidad defendant was a necessary or proper party to the
English proceedings and enforcement proceedings in the Trinidad Courts,
including in the Privy Council, refused to condemn the English service
out. The point was taken, and rightly so it is suggested, that the matter
should have been fully litigated in the English proceedings.
3. Service on the First Defendant
The older version of the sub-head requires that the first defendant must
actually have been served before the request for service out.
86
This is not
138 ELEMENTS OF PRIVATE INTERNATIONAL LAW
required under the newer Rule, which makes provision in respect of a
claim made against someone on whom the claim form has already been or
will be served. The adjustment comes in the wake of conventional and
judicial acknowledgments that the older wording was meant to but could
not ensure that the action was genuinely brought against the first defendant,
in relation to whom jurisdiction could be established by other means.
87
4. Service Within the Jurisdiction
The earlier provision made it an explicit condition that the first defendant
must have been served within the jurisdiction. There is no such explicit
requirement in the more recent provision, allowing for the argument that
the first defendant could be served pursuant to another sub-heading of the
Civil Procedural Rules. This would comport with the realisation of the
ineffectiveness of the old wording to ensure the propriety of proceedings
against the first defendant.
5. Second Defendant as a Necessary or Proper Party
The second defendant, whom the plaintiff or claimant wishes to serve out
of the jurisdiction, must be shown to be a necessary or proper party to the
suit against the first defendant. These terms are disjunctive, so that a person
may be a proper party although not a necessary party. Whether a person is
a necessary party tends to turn upon issues of joint or several liability;
whether he or she is a proper party turns largely upon the procedural rules
on joinder of parties.
88
Chile Holdings (Cayman) Ltd v Contadora Enterprises
SA
89
adopted the English test as authoritative:
The applicability of the sub-rule was limited to the extent that it could be determined
that common questions of law and fact arose in relation to the claims against he
parties, such that if all were present within the jurisdiction they could each have
been made parties to the same proceedings.
On the facts, the appellants were proper parties to be joined as the
respondents claim against all the parties was founded upon an allegation
of conspiracy to defraud. But the second defendant will not be a necessary
or proper party if the claim should have been principally brought against
the first defendant,
90
or if the claim should have been primarily brought
against the second defendant.
91
A similar finding obtains if the second
defendant has a good defence in law and the claim is therefore bound to
fail.
92
Jurisdiction 139
6. Reluctance to Allow Service Out
There has been especial reluctance to allow service out under this particular
category. The provision is obviously useful in that it allows for the
consolidation of litigation in one country. But litigational convenience must
contend with the countervailing consideration of lack of connection between
the second defendant and the forum. As was said in Multinational Gas and
Petrochemical Co v Multinational Gas and Petrochemical Services Ltd:
93
It is anomalous in that, different from the other sub-paragraphs, it is not founded
upon any territorial connection between the claim, the subject of the relevant
action, and the jurisdiction of the [forum]. This requires one to look particularly
closely at any application founded upon this sub-paragraph.
Contracts
The court can allow service out in several types of contract disputes. The
cases considered here are illustrative rather than exhaustive.
1. Contract made in the jurisdiction
Where the contractual dispute is in respect of a contract made within the
jurisdiction, the forum can give leave for service out.
94
The local law
determines the place of contract formation.
95
Thus in the case of a contract
made inter praesentes the agreement would have been concluded in the
country where the parties shook hands, signed the relevant document, or
gave other indication of consent, notwithstanding that one or both parties
are foreigners.
96
Contracts made by post are concluded in the country
where the letter of acceptance is posted.
97
By contrast, in the case of a
contract made by instantaneous communication
98
the contract is made
in the country in which the acceptance of the offer is received.
99
The case of Henry v Geopresco International Ltd.,
100
illustrates the making
of a transnational agreement within the jurisdiction. The plaintiff at all
material times lived in Calgary in Alberta. The defendant was a limited
liability company registered in Jersey, but having its head office in London.
The two parties entered into a written employment agreement in Calgary.
Accordingly, it was held that the Alberta courts had jurisdiction to allow
service of the writ outside the jurisdiction on the defendant company.
In Brinkibon Ltd., v Stahag Stahl
101
it was the negotiation rather than
the parties, which crossed the boundaries of the country. An English
company was unable to obtain leave to issue a writ against the defendant
on the basis that their contract had been made in England. Negotiations
140 ELEMENTS OF PRIVATE INTERNATIONAL LAW
had been conducted by telex between Vienna and London. The plaintiff
had sent a telex from London to the defendants in Vienna offering to buy
a quantity of mild steel bars on certain terms. The defendant sent a telex
from Vienna to the plaintiff in London making a counteroffer. The plaintiff
accepted the counteroffer by telex sent from London to Vienna, and
instructed its banks to open a letter of credit in favour of the defendants
with a Swiss firm in Switzerland. Subsequently, the defendant complained
that the plaintiff had not opened a proper letter of credit and withdrew
from the contract. The plaintiff s application for leave to serve a writ on the
defendants outside the jurisdiction was denied on the basis that the contract
had not been made in London but rather in Vienna.
2. Contract made through an agent trading or residing within the jurisdiction
Leave can be granted to serve out where the contract was made by or through
an agent trading or residing within the jurisdiction on behalf of a principal
trading or residing out of the jurisdiction.
102
There is no definition of the
term agent, which therefore receives its ordinary meaning derived from
the common law. Generally, an agent is a person authorised to act for
another, who is called the principal, and who is, in consequence, bound by
the actions of the agent. A primary function of the agent is to bring his
principal into contractual relationships with other persons. An agency can
be created by express agreement, implication or conduct, or by necessity,
as when a person has been entrusted with anothers property, the
preservation of which requires certain actions such as the feeding and stabling
of an animal.
103
It is fairly simple to understand the circumstances in which a contract
is made by the agent. These approximate the circumstances in which the
contract is made within the jurisdiction, except that the agreement is
concluded with the representative of the relevant party. Making a contract
through the agent is a more novel concept that calls for greater scrutiny. In
National Mortgage Co. of New Zealand v Gosselin,
104
the defendants were a
partnership constituted in accordance with Belgian law and did not carry
on any business in England. The partnership had an agent in London who
was authorised to negotiate on its behalf, but not to enter into binding
contracts. All that the agent was entitled to do was to receive orders and
submit them to the Belgian principals for their approval and acceptance.
The offers in the present case had all been addressed by the plaintiffs to the
agent, who had transmitted them to the defendants in Belgium. The Belgian
firm had sent the acceptances directly to the plaintiffs. It was held that
Jurisdiction 141
service could properly have been allowed ex juris on the defendants.
Although their agent in London had not made the contract, it had been
made through him.
3. Contract governed by local law
The court can allow service out of the jurisdiction if by its terms or by
implication local law governs the contract.
105
Under the terminology of
private international law, the law that governs a contract is referred to as
the proper law of the contract. Accordingly, service out is possible if the
proper law of the contract, its lex causae, is the law of the forum, or the lex
fori.
Ascertainment of the proper law of contracts is a specialised science of
private international law. For present purposes, it is sufficient to refer to
the Privy Council in the leading case of Vita Foods Products, Inc., v Unus
Shipping Co., Ltd.,
106
for the proposition that the predominant consideration
is party autonomy. Parties have freedom of choice, and the law chosen by
the parties as the governing law, will as a general rule, govern the contract.
107
It is only in the absence of a choice, express or implied, that the court will
be forced to have recourse to another method for proper law ascertainment.
This method will be to identify as the proper law, that system of law with
which the contract has its most real and substantial connection.
108
In other
words, the governing law will be the system of law constituting the center
of gravity of the contract.
The facts in Vita Foods are illustrative of the dominance of the parties
choice. The parties were companies incorporated in New York and Nova
Scotia, respectively. They agreed bills of lading in Newfoundland for carriage
of a cargo of herrings by sea from that province to New York. Under the
Newfoundland Carriage of Goods by Sea Act, every such bill of lading
issued there was required to have a clause subjecting it to the Hague Rules.
These were maritime rules laid down in an international convention to
which Newfoundland was a party and which sought to harmonise
conflicting maritime laws. Inadvertently, an old form bill was used that
did not have the clause statutorily required and which expressly stated that
the bill was governed by English law.
Two days after sailing the ship ran into bad weather and made for a
port of refuge but was ultimately lost. The herrings were unloaded,
reconditioned, and forwarded by another ship to New York, where the
appellants took delivery of them in a damaged condition. In an action by
the appellants in Nova Scotia the respondent pleaded the bills of lading or,
142 ELEMENTS OF PRIVATE INTERNATIONAL LAW
alternatively, the Hague Rules, as exempting it from liability. The appellants
alleged that the bills were illegal, null and void under Newfoundland law
in that they were contrary to the Act of 1932 and therefore that the
respondents could not take advantage of any of the exemptions from liability
provided by the Rules or by the bills of lading.
The appellant failed in the Supreme Court and the appeal to the Privy
Council was dismissed. The respondents were not able to rely on the Hague
Rules
109
but succeeded by reason of the terms in the bills of lading, which
were valid under English law. Delivering the judgment of the Board, Lord
Wright held the rights and parties governed by English law, because this
was the proper law of the contract:
It is now well settled that by English law (and the law of Nova Scotia is the same)
the proper law of the contract is the law which the parties intended to apply
[W]here there is an express statement by the parties of their intention to select the
law of the contract, it is difficult to see what qualifications are possible, provided
the intention expressed is bona fide and legal, and provided there is no reason for
avoiding their choice on grounds of public policy.
110
Following this lead, the Supreme Court of Jamaica held in National
Chemsearch Corps v Davidson
111
that:
The law of this country is committed to the principle of the unfettered freedom of
contract... Where the parties to a contract have therein expressed an intention
that a particular legal system shall govern their rights and obligations, that intention
almost invariably must prevail.
This procedure for ascertainment of the proper law of the contract was
accepted for the purpose of service out in Amin Rasheed Shipping v Kuwait
Insurance Company.
112
The parties had made no express choice of the
governing law, but their insurance policy was based on the Lloyds SG
policy as set out in the Schedule to the English Marine Insurance Act
1906. It incorporated in the body of the policy the usual f c and s (free
from capture and seizure) clause from what at that time was the standard
form of English Marine Policy. However the policy had been issued in
Kuwait and claims were to be paid there. The policyholders sought to
bring a claim against the Kuwaiti insurers in England by seeking leave to
serve out, claiming that English law governed the policy.
The House of Lords held that the plaintiffs had brought their claim
within the Order.
113
According to Lord Diplock, the provisions of the
policy by necessary implication point ineluctably to the conclusion that
the intention of the parties was that their mutual rights and obligations
Jurisdiction 143
under it should be determined in accordance with the English law of marine
insurance.
114
Whilst arriving at the same destination, Lord Wilberforce
took a different route. He accepted that the terms of the RSC Order 11, in
referring to the governing law in express terms or by implication covered
two situations. The parties mutual intention could be inferred and, where
no such inference was possible, recourse was necessitated to identification
of the system of law with which the contract had its closest and most real
connection. He differed from Lord Diplock (with whom the majority agreed)
because, although the two situations merge into each other, he regarded
the case as falling within the latter category.
115
4. Contract with jurisdiction clause
Service out can be allowed where the contract contains a term to the effect
that the High Court shall have jurisdiction to hear and determine any
action in respect of the contract.
116
To allow service out is merely to hold
the parties to the agreement they have made. Indeed, there is a good case
for arguing that the local jurisdiction clause constitutes submission and
therefore obviates or at least reduces the burden of proving the case for
obtaining of leave to serve out.
The Chaparral
117
provides a good illustration of service pursuant to a
local jurisdiction clause. The parties had contracted for towage of the
defendants oilrig from Venice to Ravenna provided that any dispute arising
had to be treated before the London Court of Justice, which was taken to
mean the English High Court. The tow was forced to take refuge in Florida
and the defendants started proceedings in Tampa District Court for damages
contending that the tug was not seaworthy to undertake the voyage.
Subsequently the plaintiffs commenced proceedings in the English High
Court claiming damages against the defendants on the ground that the
oilrig being towed was not in a seaworthy condition. It was held that the
plaintiffs had been properly given leave to serve the defendants out of the
jurisdiction and that action could proceed in England. It was the policy of
the court to hold parties to the bargain they had made.
Torts
The forum is empowered to give leave to serve process outside the jurisdiction
in certain tort actions. Under the traditional formulation, leave can be
granted if the action begun by writ is founded on a tort committed within
the jurisdiction.
118
Immediately, a definitional problem arises. When is
the tort committed within the jurisdiction? There are at least three theories
for identification of the locus delicti commissi, all discussed in the leading
144 ELEMENTS OF PRIVATE INTERNATIONAL LAW
Privy Council decision in Distillers Co. (Biochemicals) Ltd. v Thompson,
119
although it cannot be said that any is completely satisfactory.
In Distillers the first defendant was an English company and carried on
business in that country as a manufacturer of pharmaceutical products. It
was in no sense resident in New South Wales. One of its products was a
drug called Distival which was used as a sedative, and the principal ingredient
of which was thalidomide. Distival was sold in tablet form and the tablets
were manufactured and packaged in England. The second defendants, an
Australian company, distributed it in New South Wales. The plaintiff
brought an action in negligence. She claimed that her mother had taken
Distival during her pregnancy; that the drug thalidomide had a harmful
effect on the foetus of an unborn child during the first three months of
pregnancy; and that as a result she had been born malformed and with
defective vision. Leave was sought and obtained to serve the writ on the
first defendant outside the jurisdiction on the basis that the cause of action
had arisen within the jurisdiction.
a) Theories for the place of the tort
The first theory considered for identifying the place of the cause of action
(or the locus of the tort) was that the cause of action must be the whole
cause of action, so that every part of it, every ingredient of it, must have
occurred within the jurisdiction. Delivering the judgement of the Board,
Lord Pearson ruled this out as being too restrictive for the needs of modern
times. A defendant could have no major grievance if sued in the country in
which most of the ingredients of the cause of action against him took
place.
A second theory was also considered unacceptable. This was the last
act concept under which it was necessary and sufficient that the last
ingredient of the cause of action, the event that completes a cause of action
and brings it into being, occurred within the jurisdiction. Their Lordships
thought it wrong in principle to invariably ascribe decisive importance to
the place where the last act took place. Such a place could be highly fortuitous
and therefore the degree of connection between the tort and the country
might not be such as to justify or make appropriate trial in the countrys
courts. This factor should therefore not be the sole determinant of
jurisdiction.
On the other hand, in respect of specific torts, the place of the last act
could be critical. This is particularly so in relation to defamation, whether
slander or libel. This is because the last act of the tort of defamation consists
Jurisdiction 145
of injury to the plaintiff s reputation and is therefore likely that the courts
of the country in which publication occurred will have sufficient connection
to justify assumption of jurisdiction. So, in Bata v Bata
120
defamatory letters
had been written by the defendant in Zurich, Switzerland, and posted to
certain addresses in England. It was held that publication constituted the
tort of libel and as this had taken place in England, the tort had been
committed there. The English courts could therefore allow service out.
Similarly, in Pindling v National Broadcasting Corporation
121
the
defendants had made several broadcasts in the course of which imputations
were cast on Sir Lynden Pindling. He was accused of taking bribes from
drug smugglers, using his position as Prime Minister of The Bahamas to
protect drug smugglers, and of being dishonest, corrupt and guilty of
criminal acts. The broadcasts originated in the United States and were
further broadcast in Ontario. Sir Lynden was of the view that the broadcasts
defamed him and he sought to sue NBC in Ontario.
122
He was allowed to
serve the defendants outside of the Ontario jurisdiction because the allegedly
defamatory words spoken in the United States and heard in Ontario
constituted a tort committed within Ontario.
The third theory was that the act on the part of the defendant that
gives the plaintiff his cause of complaint must have occurred within the
jurisdiction. This was considered to be inherently reasonable but does
not provide a simple answer in all cases. The Privy Council recognised that
the place of the wrongful act may equally be, for example, the country
where the defendant was negligent, or the country in which the defendants
negligence caused the plaintiff to be hurt. The Board eschewed the rigid
approach adopted in some cases in fixing the place of the wrongful act as
the country in which the negligent act took place and not where the injury
occurred.
123
Instead, it preferred the following more flexible approach: when
the tort is complete, look back over the series of events constituting it and ask the
question: where in substance did this cause of action arise?
124
On the facts it
was found that that place was New South Wales and that therefore leave
could be given to serve out:
In the present case on the assumptions made for the purpose of testing jurisdiction
there was negligence by the first defendant in New South Wales causing injury to
the plaintiff in New South Wales. So far as appears, the goods were not defective
or incorrectly manufactured. The negligence was in failure to give a warning that
the goods would be dangerous if taken by an expectant mother in the first three
months of pregnancy. That warning might have been given by putting a warning
notice on each package as it was made up in England. It could also have been given
by communication to persons in New South Wales - the medical practitioners, the
146 ELEMENTS OF PRIVATE INTERNATIONAL LAW
wholesale and retail chemists, patients and purchasers. The plaintiff is entitled to
complain of the lack of such communication in New South Wales as negligence by
the first defendant in New South Wales causing injury to the plaintiff there. That
is the act (which must include omission) on the part of the first defendant which
has given the plaintiff cause of complaint in law. That cause of action arose within
the jurisdiction.
125
b) An important objective: Protection of Citizens and Residents
In deciding whether to allow service out it would be well to remember that
an important objective of Order 11 is to facilitate trial in the forum in
relation to litigation closely connected therewith but in respect of which
jurisdiction cannot otherwise be established. An interesting gloss was placed
upon this perspective in the Canadian case of Moran v Pyle.
126
Having
accepted the Privy Council preference for flexibility rather than restrictive
or draconian rules in identification of the place of the tort, the Supreme
Court of Canada placed this test within the context of the protection of
nationals and residents from the tortuous actions of foreigners. It said:
Applying this test to a case of careless manufacture, the following rule can be
formulated: where a foreign defendant carelessly manufactures a product in a
foreign jurisdiction which enters into the normal channels of trade and he knows
or ought to know that as a result of his carelessness a consumer may well be injured
and it is reasonably foreseeable that the product would be used or consumed where
the plaintiff used or consumed it, then the forum in which the plaintiff suffered
damage is entitled to exercise judicial jurisdiction over that foreign defendant. This
rule recognises the important interest a State has in injuries suffered by persons
within its territory.
127
This is brought home by the newer formulations followed in Jamaica
and the Eastern Caribbean. Adopting the modern English position, these
countries allow a claim form to be served out of the jurisdiction if a claim
in tort is made and the act causing the damage was committed within the
jurisdiction or the damage sustained was sustained within the jurisdiction.
128
There is therefore no longer the need to define the place of the tort in
these territories.
c) Choice of law in tort
Moran v Pyle also raises, tantalisingly, the relevance of the place where the
tort was committed, for jurisdictional as contrasted with choice of law
purposes. There can be little doubt that the lex loci deliciti commissii is the
single most dominant determinant of the choice of law in torts. In fact, in
Europe at present the choice of law in torts is the law of the place where the
Jurisdiction 147
tort was committed, and this was the position in the United States until
recently.
129
In traditional Anglo-Caribbean law, the place of the tort supplied one
of the two leges causae. The current formulation is that stated by Lord
Slynn in Red Sea Insurance Co Ltd v Bouygues SA.
130
As a general rule, the
act complained of must have been a tort and actionable as such according
to the law of the Caribbean forum and according to the law of the foreign
country where it was done. But a particular issue may be governed by the
law of the country which, with respect to that issue, has the most significant
relationship with the occurrence and the parties.
Both the general rule and the exception, then, place heavy emphasis
upon the place where the tort was committed or the damage was sustained.
Caribbean legislative reform of choice of law in the area of transnational
causes of action for product liability similarly stresses the importance of
the locus delicti.
131
Legislative reform in England has made the general rule
for the choice of law in torts, the law of the country in which the events
constituting the tort or delict in question occur.
132
What remains of interest is the juxtaposition in Moran v Pyle of the
place of the tort concept for choice of law as opposed to choice of jurisdiction
purposes. In delivering the judgement of the Supreme Court Dickson J
relieved himself of the view that the difficulty of locating the locus delicti
has not been diminished by the failure in many of the cases to distinguish
between jurisdiction and choice of law. He went on to say that the rules
for determining situs for jurisdictional purposes cannot be those which are
used to identify the legal system under which the rights and liabilities of
the parties fall to be determined.
133
It is unfortunate that the learned
judge did not develop this idea further. Whether it is prudent or even
feasible to maintain a distinction between the place of the tort or
jurisdictional as opposed to governing law purposes seems an appropriate
candidate for discussion.
Obstacle of Discretion
Bias Against Service Out
Establishment of the fact that the case falls within at least one of the
categories of Rules of Order 11 or of Civil Procedure overcomes the first
hurdle. There is still the second hurdle to surmount. The plaintiff must
prove that the case is a fit and proper one for the courts to allow service out.
Here the question is not one of law. It is one of discretion. The plaintiff
148 ELEMENTS OF PRIVATE INTERNATIONAL LAW
must demonstrate to the satisfaction of the court that the case is an
appropriate one for leave to be granted.
In deciding whether to exercise its discretion to allow applicant service
out of the jurisdiction, the court starts with a bias against the application.
Service out is extraordinary, exorbitant, and possibly contrary to comity. It
is extraordinary because normally, the exercise of jurisdiction is based upon
the allegiance owed by the defendant to the court. Presence within the
territorial limits of the court signifies tacit acceptance of jurisdiction.
Submission indicates tacit or express acceptance. But if the defendant is
not present and has not submitted then, prima facie, the defendant owes
no allegiance to the court. It is therefore extraordinary for the court to
exercise jurisdiction over such a person. In Bahamas International Trust
Company Limited v Lisk Wyckoff
134
it was accepted that the jurisdiction
exercised under Order 11 rule 1 must be exercised with caution:
But of course it becomes a very serious question, and ought always to be considered
a very serious question whether the Court ought to put a foreigner, who owes
no allegiance here, to the inconvenience and annoyance of being brought to contest
his rights in this country. I for one say, most distinctly, that I think this Court ought
to be exceedingly careful before it allows a writ to be served out of the jurisdiction.
Service out is exorbitant because, whilst Caribbean and English courts
will in cases they consider appropriate, base their jurisdiction on allowing
service ex juris, these courts will not recognise such jurisdiction in a foreign
court. In Re Dulles Settlement Trusts
135
Denning LJ suggested that given
that the rules under which the Manx court assumed jurisdiction correspond
with the English rules for service out of the jurisdiction contained in RSC
Ord 11 he did not doubt that the jurisdiction of the Manx court would be
recognised in England.
136
This is clearly incorrect. There are many cases in
which the court has held that the foreign courts lack competence to assume
ex juris jurisdiction.
137
Logically this rule applies between Caribbean
countries and England, as it does among the Caribbean countries themselves.
Leave to serve out might run counter to the rules of comity because
service of the courts process in a foreign country, particularly a foreign
state, represents a infringement of sovereignty, however insubstantial. This
was particularly so in the old days when the original writ was served. To
ameliorate the problem the current practice is to serve a copy rather than
the original court document.
Jurisdiction 149
Good Faith
The court requires that the plaintiff must have acted with utmost good
faith. This demands that full and frank disclosure be made of all relevant
facts. This is particularly important in circumstances where the application
is made ex parte and the other side does not have the opportunity of
presenting opposing argument. Thus, service out will be denied or set
aside in the face of sharp practice. This is so even if the defendant has
submitted to jurisdiction by virtue of entering an unconditional appearance
upon service of the writ.
Consider, for example, the case of Owens Bank Ltd v Cogettri SA
138
The
High Court of Justice of St. Vincent and the Grenadines reiterated that
service of a writ out of the jurisdiction is an interference with the exclusive
jurisdiction of the sovereign power of the foreign state. As a matter of
international comity such service should not be allowed unless it is clearly
within both the letter and the spirit of the local statutory rules. The Court
found no indications from the pleadings that the contract had been made
within the jurisdiction or that the tort alleged was a cause of action
committed within the jurisdiction. In fact, it seemed clear that the torts
were allegedly committed in France. There had not been full and fair
disclosure on the part of the plaintiffs, the statement of claim was misleading
and did not show any privity of contract between the parties.
Forum Conveniens
In order to persuade the court to allow service out, the plaintiff must prove
that the court is the convenient forum for hearing the dispute. The forum
conveniens is that court with which the case is most closely connected so
that it becomes most convenient or appropriate for it to adjudicate upon
the claim. Accordingly there are a large number of considerations to be
taken into account. These include whether the evidence and witnesses are
located locally, whether the governing law is the lex fori or a foreign law,
whether a foreign court also has jurisdiction to hear the case, whether
proceedings are pending in that foreign court. The court will also consider
the real object of the proceedings - is it to vindicate the plaintiff s legal
rights and responsibilities or merely to embarrass or humiliate the
defendant?
There are several cases in which the forum having established that it
had jurisdiction to serve out, refused leave on the basis that the case was
not a proper one for ex juris jurisdiction. Amin Rasheed v Kuwait Insurance
Company
139
decided that English law governed the insurance contract but
150 ELEMENTS OF PRIVATE INTERNATIONAL LAW
that leave should be refused. The central issue in the litigation was whether
the insured vessel had been engaged in smuggling; this was a question of
fact and both Kuwait and England were on the international air routes and
readily accessible to the witnesses. English judges would apply English
law as the proper law of the policy but so too would the Kuwaiti judges
under their private international law rules. No inference could be made
from the unsupported allegation that the civil law practice and procedure
followed in Kuwait was inferior to and less efficient than the English common
law method. The case was more or less evenly balanced between trial in
England and Kuwait; it therefore followed that the plaintiff had not
discharged the burden of proving England to be the forum conveniens.
Another example is provided by MacKender v Feldia.
140
The defendants,
who were European diamond merchant companies incorporated and trading
abroad, insured their precious stones with the English plaintiffs, Lloyds
Underwriters. The insurance policy was negotiated and executed in London,
but provided that all disputes arising out of it should be exclusively subject
to Belgian jurisdiction for decision according to Belgian law. The plaintiffs
alleged that the defendants were in the habit of illegally smuggling
diamonds into Italy and sought to bring an action against them in England
for a declaration that the policy was void for illegality or voidable for non-
disclosure. The plaintiffs sought leave to serve the writ outside the
jurisdiction on the ground that the contract had been made within the
jurisdiction.
The Court of Appeal held that leave should be refused. Non-disclosure
only made the contract void from the moment of avoidance and illegality
only made it unenforceable. It followed that the contract was a valid
agreement at the time of its formation. Under the terms of that agreement
the plaintiffs had consented to have all litigation affecting it, tried in Belgium
and the discretion should not be exercised to grant leave for service out.
SUBJECT-MATTER JURISDICTION
As a general rule Caribbean courts may exercise jurisdiction over all types
of transnational litigation. There are, however three categories of cases in
which competence may be limited by the subject matter of the dispute. A
Caribbean court has no power to adjudicate upon a cause of action that is
based upon a foreign public law asserting the sovereign power; that falls
under the Mocambique rule; or that is local to a foreign country. A point
of critical importance is that lack of subject matter jurisdiction cannot be
Jurisdiction 151
cured by the conferral of consent by the parties. Such jurisdiction assumed
in error may be challenged in direct as well as collateral proceedings.
Action based upon foreign public law
The forum has no competence to adjudicate upon claims based upon foreign
public laws that assert the sovereignty of a foreign power. Such laws are
never enforced locally and neither are any rights acquired under them.
Typically, foreign laws pertain to the imposition of a penalty, whether in
the form of a tax or otherwise. Sanctis v Bowen
141
involved the submission
by the defendant to the jurisdiction of the Grenada High Court. But the
Court itself raised the question of competence, holding that despite the
defendants concession, it had no competence over the subject matter of
the dispute. This was because the claim was in the nature of an action for
the recovery of a penalty or tax for the protection of foreign revenue.
Detailed consideration of the exclusion of actions based upon foreign public
law is reserved for treatment elsewhere in this book.
142
The Mocambique Rule
In the leading case of British South Africa Co. v Companhia de Mocambique
143
an action was brought in England by the plaintiff, a Portuguese company,
against the defendant, an English company for damages for trespass to its
land in South Africa. The defendant disputed the plaintiff s right to
possession of the land and the House of Lords held that it had no jurisdiction
to hear the suit. Thus the Mocambique rule was born, i.e., that the forum
has no competence to determine title to or right to possess foreign land or
other immovable property situated abroad. Nor is the court competent to
determine damages for trespass to such property.
144
Rationale for the Rule
No positive reason was given for the rule. Lord Hershell, who gave the
leading judgment, did say that it was not based upon technical but rather
substantial grounds. However he did not go on to specify what those
substantial grounds were. Certainly it would be hard to argue that the
limitation was required under public international law. Exclusivity of
territorial sovereignty is an indispensable criterion of statehood but that
requirement does not prevent foreign decisions as to private ownership of
land situated within the state. What is required is state control of its territory
and such control is not necessarily conditioned by foreign determination
of ownership.
152 ELEMENTS OF PRIVATE INTERNATIONAL LAW
Again, the judgment as to ownership and allied rights may well depend
for effectiveness upon the foreign law and judiciary but this is the case in
relation to a large number of transnational disputes. In economic terms,
adjudication upon contractual and tortuous disputes could be significantly
more important than determination of the rights in respect of a small
parcel of land. In any event, the likelihood of the foreign rejection of
judgment is considerably lessened by the application of foreign law, as is
attempted by use of the renvoi doctrine.
Moreover, it is widely acknowledged that the invariable application of
the rule could lead to injustice. Consider the case of a person who commits
a grave trespass to land located in a foreign country. If the trespasser was to
be found in the Caribbean that person could not be sued in our courts. If
the foreign country adopted the same rules concerning personal jurisdiction
the absence of the person could complicate the jurisdictional issue there.
This could well mean that the victim might be left without a remedy.
Even so, the rule has been embraced in Commonwealth Caribbean law.
145
Exceptions to the Rule
In order to ameliorate such difficulties there are established exceptions to
the rule. These exceptions allow assumption of jurisdiction where
determination of the issue concerning foreign land or immovable property
is incidental to the resolution of the main dispute before the court, and
where there exists a personal obligation between the parties.
It is important to distinguish between the scope of the rule and the
exceptions to the rule. If the dispute falls outside the scope of the rule then
the court is not concerned with subject-matter jurisdiction. It may assume
competence on the basis of personal jurisdiction. There is no need to search
for an exception to the rule. This was the case in St. Pierre v South American
Stores (Gath & Chaves) Ltd,
146
involving a personal action for rent of premises
in a foreign country. Also, if the dispute falls outside the rule then the lex
situs has no special dominance. Thus if the issue before the court is properly
classified as one of contract then it is resolved in accordance with the proper
law of the contract and not necessarily according to the law of the place
where the land is situated.
147
Determination incidental to dispute
The first exception was provided for in the Mocambique case itself. Lord
Herschell LC allowed that it may become necessary incidentally to
investigate and determine the title to foreign lands.
148
Where title to foreign
land is merely ancillary to the main dispute, Caribbean courts may exercise
Jurisdiction 153
jurisdiction over the litigation. The court may have jurisdiction to
administer a trust or the estate of a deceased person that includes property
(whether movables or immovables) situated locally. Adjudication may
proceed even if the property also includes immovables situated abroad.
149
No contractual or fiduciary relationship need exist between the parties. In
Re Ross
150
the main issue before the English court was whether the will of
the deceased leaving all her property to her niece was valid. The Court
decided that it was even though part of the property devised by the will
was land situated in Italy.
The problem here is that resolution of the issue of ownership of the
foreign land rarely constitutes a true incidental question in the private
international law sense of the term.
151
Arguably, the existence of a true
incidental question should be a condition precedent for operation of the
exception. Otherwise the exception could become little more than a drafting
device used to circumvent the rule,
152
with the consequential potential of
bringing the law into disrepute.
Enforcement of a personal obligation
The second exception is dependent upon the existence of a personal
obligation between the parties. A court of equity will enforce personal
obligations binding on the parties even if this means compelling them to
deal with foreign lands in a particular way. This was established in Penn v
Lord Baltimore,
153
involving a suit in England to enforce a contract settling
the boundaries between two American provinces. Lord Hardwicke agreed
that he could not make a decree in rem affecting the American property.
Nonetheless he granted a decree of specific performance of the contract.
The defendant had become bound by a personal obligation to the plaintiff
and the Court, in exercise of its in personam jurisdiction, could compel
him to deal with the foreign land in fulfillment of that obligation. Such an
order acted upon the party to whom it was addressed and did not concern
the foreign land per se.
This exception was neither confirmed nor contradicted in Mocambique
but has been acted upon repeatedly since then. In Razelos v Razelos
154
a
husband who had fraudulently purchased land in Greece with his wifes
money was ordered by an English court to convey the land to her. It was
emphasised that competence could be exercised because the court possessed
in personam jurisdiction, and because the order would not be ineffective.
The latter point asserts the maxim that equity will not act in vain. If the
situs would prohibit the enforcement of the decree then it is unlikely that
the decree would be made in the first place.
154 ELEMENTS OF PRIVATE INTERNATIONAL LAW
Another condition for operation of the exception is that the personal
obligation binding the defendant must have run to the plaintiff. Privity of
obligation is usually based upon the relations of the parties in contract,
tort, or trust. In one case privity was established on the basis of the
monstrous conduct of a judgment debtor in seeking to evade payment by
leasing foreign property in the name of his friend. Such conduct was
sufficient to establish the necessary obligation between the friend and the
judgment creditor.
155
Local actions
Origin in the Mocambique Rule
For a long time it was thought that the Mocambique rule was limited to
land and interests in land. However, in recent times it has been extended
to include actions based upon foreign intellectual property and copyright
law. Indeed these were described as examples of a still wider category, that
is, local actions. Whilst the boundaries are not entirely settled, the premise
appears to be that the forum has no competence over any cause of action
that is based upon any foreign law giving purely local rights.
The leading case is Tyburn Productions Ltd. v Conan Doyle.
156
The plaintiff
company was a film producer and it made a television film featuring the
famous detectives Sherlock Holmes and Dr. Watson. These characters had
been created by Sir Arthur Conan Doyle and copyright in his works resided
in his daughter Lady Bromet. Her copyright in the United Kingdom expired
in 1980 but still existed in the United States. The plaintiff wanted to
distribute the film in the United States but was fearful that Lady Bromet
would assert her copyright entitlements there.
The plaintiff sought a declaration from the English courts that she was
not entitled to copyright in the United States but the court held that it
could not decide the action. The rule that English courts had no jurisdiction
over decisions affecting foreign lands extended to actions concerning rights
under foreign intellectual property laws. Such actions were of a local and
not a transitory nature. They were concerned to confer rights upon
individuals within the bounds of the state and for that reason were not
justiciable in the English courts.
Critique of the Tyburn Extension
The Tyburn Production case is now established law but remains a surprising
decision for several reasons. Commentators were generally critical of the
Mocambique rule and many argued for its complete abolition. Also, it had
Jurisdiction 155
always been thought that the rule was restricted to land and interests in
land. A third reason was that Parliament in England had itself intervened
to limit the scope of the rule. Jurisdiction was mandated in respect of
actions for trespass to foreign land where no question of ownership was in
dispute.
157
This is not to say that there are no ameliorating considerations. The
exceptions to the rule regarding adjudication of foreign land probably apply
to this category of local actions although there is yet to be a definitive
judicial decision to this effect. There has also been the important suggestion
that the rule does not apply to disputes where the right of ownership in
the foreign intellectual property is not in dispute.
158
The English Court of Appeal has affirmed the rule and refused to
make a declaration regarding whether rights under the copyright, unfair
competition or trade mark laws of a foreign state would be infringed by
what one of the parties proposed to do. But that decision is of little or no
assistance in deciding whether an action for alleged infringement of a foreign
copyright by acts done abroad is justiciable in the forum, when the existence
and validity of the right is not in issue.
159
NOTES
1. David McClean, Morris: The Conflict of Laws, (5th edn. 2000), at 71.
2. It should be noted that the jurisdiction vested in the court by virtue of the various
Admiralty Act (note especially the English Admiralty Act of 1861) is so wide that the
court is given the power of arrest even in actions in personam: International Sea Foods
Ltd. v Gemini One. Unreported, High Court, Barbados, dated January 1, 1976
(Ward J, esp. at 3).
3. See e.g., Peter Malanczuk, Akehursts Modern Introduction to International Law (7th
revised edn., Routledge, 1997), Chap 8. See too Holland v Lampen-Wolf [2000] 1
WLR 1573 (HL).
4. See Island of Palmas case, RIAA II 829 (1928). (Huber J).
5. John Russell & Co Ltd. Cayzer, Irvine & Co. Ltd. [1916] 2 AC 298, at 302, HL.
6. McDonald v Mabee 243 US 90 at 91 (1917), per Holmes J.
7. [1972] 2 QB 283; 2 All ER 689.
8. [1966] 1 All ER 673; [1966] 1 WLR 440. See also Carrick v Hancock (1895) 12
TLR 59, at 60.
9. Companies Act (1973 Rev.), (Jamaica), s. 4; Companies Act 1995 (No. 35 of 1995),
(Trinidad and Tobago), s. 175. Cf. Companies Act 1982-54 (Barbados), s. 169,
156 ELEMENTS OF PRIVATE INTERNATIONAL LAW
which requires notification to the Registrar of the address of the registered office of
the company but does not appear to specify that that office must be located in
Barbados.
10. Companies Act (1973 Rev.), (Jamaica), s.370.
11. Companies Act 1982-54 (Barbados), s. 414 (a); Companies Act 1995 (No. 35 of
1995), (Trinidad and Tobago), s. 491(a).
12. Companies Act 1982-54 (Barbados), s. 414 (b); Companies Act 1995 (No. 35 of
1995), (Trinidad and Tobago), s. 491(b).
13. Island Coatings (Barbados) Limited v Coles (1984) 19 Barb. LR184 (Williams CJ).
14. See e.g., Okura & Co. Ltd., v Forsbacka Jernverks Aktiebolag [1914] 1 K.B. 715, at
718 per Buckley LJ; Attorney-General v Bailey (Malta) Ltd., [1963] 1 Lloyds Rep.
617.
15. Unreported Judgement, No. 61 of 1998, Supreme Court of Barbados, dated March
26, 1998.
16. This was case on foreign judgment where the Barbados High Court was deciding
whether the defendant was present in New York. There was no suggestion that the
same reasoning would not apply had the facts been switched around to make live the
issue of whether the defendant was present in Barbados.
17. See e.g., Part X, Companies Act (1973 Rev.), (Jamaica).
18. See e.g., Companies Act (1973 Rev.), (Jamaica), sect. 346. Cf. Companies Act 1995
(No. 35 of 1995), (Trinidad and Tobago), s. 491, and Companies Act 1982-54
(Barbados), s. 414, both making general provision for service of documents on a
company.
19. See e.g., Part X, Companies Act (1973 Rev.), (Jamaica), s. 351.
20. Cheshire & North, Private International Law, (10th edn.), at 83.
21. [1985] 2 All ER 219, CA.
22. Ibid., at 222.
23. (1904) Vol. 20 TLR 534.
24. See, too, Colt Industries v Sarlie [1966] All ER 673, [1966] 1 WLR 440 at 443-444.
25. Donohue v Armco Incorporation [2002] 1 All ER 749 (HL); The Angelic Grace [1995]
Vol. 1 Lloyds Report 87.
26. Article 36 (1), Statute of the International Court of Justice, reproduced in Harris:
Cases and Materials on International Law, (DJ Harris, ed. Sweet & Maxwell, 1998), at
1074, 995-1002.
27. Foreign judgments are normally enforced on the basis of international agreement
embodying the principle of reciprocity. This means that if the assets are located in a
country with which the forum has no diplomatic or other relevant connections, and
in respect of which there is no reciprocal agreement, then the property may not be at
risk. In such circumstances, the best advice may be to completely ignore the forums
proceedings.
Jurisdiction 157
28. [1951] 2 All ER 69.
29. Ibid., at 72.
30. Ibid. The question arises whether, if the defendant physically goes to court to protest
jurisdiction, service could be made on the basis of presence.
31. [1915] 2 K.B. 580.
32. See generally, Lawrence Collins, Harris v Taylor Revived (1996) Vol. 92 LQR 268.
33. [1975] 3 WLR 620.
34. Ibid., at 636. The Court noted:
The reports ([1951] Ch. 265 and 842) give the same serial number for all the
proceedings.
35. Ibid., at 637.
36. Ibid., at 639. Whether this reasoning is true in light of the points regarding the
protection of ones assets remains true must be doubtful.
37. Ibid.
38. See Schibsby v Westenholz (1870) LR 6 QB 155, [1861-73] All ER Rep 988.
39. Contrast Russell & Co. Ltd., v Cayzer, Irvine and Co. Ltd., [1916] 2 AC 298.
40. Unreported, Supreme Court, The Bahamas, Suit No. 864 of 1980, dated April 9,
1981.
41. Order 12 Rule 7 (1).
42. Unreported, High Court of Justice, St. Vincent and the Grenadines. Civil Suit No.
211 of 1987, dated October 19, 1987.
43. An advantage of setting aside the appearance would have been the possibility of
having judgement in default of appearance.
44. [1976] QB 726; [1975] 3 WLR 620.
45. See generally, Lawrence Collins, Some Aspects of Service Out of the Jurisdiction in
English Law, (1972) Vol. 21 ICLQ 656.
46. See Rules of the Supreme Court 1982, (S.I. 1982 No. 51), (Barbados).
47. See Rules of the Supreme Court, 1975 (Trinidad and Tobago), O. 11 (2) (1).
48. Supreme Court of Jamaica, Civil Procedure Rules 2002, Rule 7.2, 7.3.
49. Eastern Caribbean Supreme Court, Civil Procedure Rules 2000, Rule 7.2, 7.3.
50. [1984] AC 50; [1983] 2 All ER 884, [1983] 3 WLR 241.
51. Cornwall Estates Limited v Bernard Moskovits and Paul J Malonson Moon Kim Malonson,
Unreported, Supreme Court, The Bahamas, No. 1120, dated January 26, 1984.
52. Unreported, Supreme Court, The Bahamas, No. 466 of 1987, dated May 1, 1988.
53. [1968] Law Reports of Guyana 84 (Khan J).
54. (1923-27) Vol. 5 Trinidad and Tobago Judgments 154.
55. [1972] 1 WLR 962.
158 ELEMENTS OF PRIVATE INTERNATIONAL LAW
56. Alpheus Forde v The National Bulk Carrier Inc., Unreported, High Court of Justice:
West Indies Associated States Supreme Court (Saint Vincent), No. 85 of 1977;
dated September 26, 1977 (Georges J).
57. RSC 1982, O. 11, R (2) (1) (c), (Barbados); RSC 1975, O. 11 R (2) (1) (c),
(Trinidad and Tobago); CPR 2002, R 7.3 (2) (a), (Jamaica); CPR 2000, R 7.3 (2) (a)
(ECSC).
58. [1936] 1 All ER 239.
59. RSC 1982, O. 11, R (2) (1) (i), (Barbados); RSC 1975, O. 11 R (2) (1) (i), (Trinidad
and Tobago).
60. CPR 2002, R 7.3 (2) (b), (Jamaica); CPR 2000, R 7.3 (2) (b) (ECSC).
61. Watson v Daily Record [1907] 1 KB 853.
62. Marshall v Marshall (1888) 38 Ch D 330.
63. Watson v Daily Record [1907] 1 KB 853.
64. [1984] 1 WLR 1428.
65. New Zealand Post Ltd v Leng [1999] 3 NZLR 219.
66. [1925] Ch 250 (CA-Eng).
67. Mareva Cia Naviera SA v International Bulkcarriers SA, The Mareva [1980] 1 All ER
213n, [1975] 2 Lloyds Rep 283.
68. Siskina (Cargo Owners) v Distos Cia Naviera SA, The Siskina [1979] AC 210, [1977]
3 All ER 803.
69. [1993] AC 334.
70. (1997/98) 1 Offshore Financial Law Reports 482.
71. [2002] 1 All ER 717.
72. [1994] Vol. 1 Belize Law Reports 249.
73. But see contra Berliner Bank AG v John Karageorgis and Silver Carriers SA(1997/98) 1
Offshore Financial Law Reports 145. It was held in this case that a Mareva injunction
should be discharged because there was no substantive cause of action in existence
in Bermuda when the injunction was issued, and hence, there was no jurisdiction to
issue the injunction.
74. Connelly v South Pointe Capital Corp [1998] CILR 243.
75. Coney Island and Caribbean Amusements v Good times Shows Inc, Unreported, High
Court of Barbados, No. 202 of 1984, dated March 20, 1984.
76. See generally, Kaprifol Shipping SA v Cararanti Shipping, Unreported, Supreme Court,
The Bahamas, No. 284 of 1988, dated March 15, 1988. Unless the concept of the
thing to be done or not done within the jurisdiction is given the most generous of
interpretation to include, for example, the technical obligation arising under the
order of the court itself; an argument made plausible by reference to the obligation
accruing to the defendant under a worldwide injunction.
77. (2001) 59 WIR 30.
Jurisdiction 159
78. RSC 1982, O. 11, R (2) (1) (j), (Barbados); RSC 1975, O. 11 R (2) (1) (j), (Trinidad
and Tobago).
79. CPR 2002, R 7.3 (2), (a), (ii), (Jamaica).
80. CPR 2000, R. 7.3 (2), (a), (ii) (ECSC).
81. Williams v Cartwright [1895] 1 QB 142, involving an action for deceit brought
against three defendants jointly, two of whom were resident in the forum and one
in a foreign country.
82. Massey v Heynes [1888] Vol. 21 QB 330.
83. Bank of New South Wales v Commonwealth Steel Co Ltd [1983] 1 NSWLR 69;
Westpac Banking Corpn v Commonwealth Steel Co Ltd [1983] 1 NSWLR 735.
84. [1925] Ch 250 (CA-Eng).
85. (1988) 35 WIR 379. See Winston Anderson, (1999) Vol. 42 ICLQ 157.
86. See Chile Holdings (Cayman) Ltd v Contadora Enterprises SA, Unreported, Court of
Appeal, Cayman Islands, No. 27/98, dated April 15, 1999.
87. Canada Trust Co v Stolzenberg (No. 2) [1998] 1 WLR 547 (CA-Eng).
88. Arab Monetary Fund v Hashim (No. 4) [1992] 1 WLR 1176 (CA-Eng).
89. Unreported, Court of Appeal, Cayman Islands, No. 27/98, dated April 15, 1999.
90. Re Schintz [1926] Ch 710.
91. Rosler v Hilbery [1925] Ch 250 (CA- Eng).
92. Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services
Ltd [1983] Ch 258 at 273, 278 (CA-Eng).
93. Ibid. at 271. See also JJ Fawcett, [1984] Vol. 100 LQR 17.
94. RSC 1982, O. 11, R (2) (1) (f ), (i), (Barbados); RSC 1975, O. 11 R (2) (1) (f ), (i)
(Trinidad and Tobago);[ CPR 2002, R 7.3 (3), (a), (i), (Jamaica); CPR 2000, R 7.3
(3), (b), (iv), (ECSC). Of course the place of contract formation may be important
for other than purely jurisdiction reasons: it may be significant for example, in
deciding upon the terms that have been incorporated into the contract, and upon the
proper law of the contract.
95. Entores v Miles Far East Corporation, [1955] 2 QB 327; [1955] 2 WLR 48; Brinkibon
Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34, [1982]
1 All ER 293; Oceanic Sun-Line Special Shipping Co Inc v Fay (1988) 165 CLR 197,
62 ALJR 389.
96. Henry v Geopresco International Ltd [1976] QB 726; [1975] 3 WLR 620.
97. Adams v Lindsell (1818) 1 B & A 681; Cf. Entores v Miles Far East Corporation, [1955]
2 QB 327; [1955] 2 WLR 48.
98. Under Einsteins theory of relativity there is no such thing as instantaneous
communications in nature.
160 ELEMENTS OF PRIVATE INTERNATIONAL LAW
99. See e.g., Entores v Miles Far East Corporation, [1955] 2 QB 327; [1955] 2 WLR 48;
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC
34, [1982] 1 All ER 293.
100. [1976] QB 726; [1975] 3 WLR 620.
101. [1983] 2 AC 34.
102. RSC 1982, O. 11, R (2) (1) (f ), (ii), (Barbados); RSC 1975, O. 11 R (2) (1) (f ), (ii),
(Trinidad and Tobago); CPR 2002, R 7.3 (3), (a), (ii), (Jamaica); CPR 2000, R 7.3
(3), (b), (iii), (ECSC). The making of a contract through an agent carries important
implications more fully explored in works on agency.
103. Summers v Solomon (1857) 7 E & B 879; GN Rwy v Swaffield (1874) LR 6 Ex 132.
See: E.R. Hardy Ivamy, Mozley & Whiteleys Law Dictionary (Butterworths, 1993)
at 12; L.B. Curzon, A Dictionary of Law (Macdonald & Evans, 1979) at 13.
104. (1922) 38 TLR 832.
105. RSC 1982, O. 11, R (2) (1) (f ), (iii), (Barbados); RSC 1975, O. 11 R (2) (1) (f ), (iii),
(Trinidad and Tobago); CPR 2002, R 7.3 (3), (a), (iv), (Jamaica); CPR 2000, R 7.3
(3), (b), (ii), (ECSC).
106. [1939] A.C. 277; [1939] 1 All ER 513 (Privy Council).
107. Winston Anderson, Party Autonomy and Overriding Statutes in Private International
Law: The High Court of Australia Takes the Lead (1999) 9 Carib. L.R.16.
108. Even here, a (controversial) attempt is made to reconcile with party autonomy by
suggesting that as reasonable people, had the parties thought about the matter they
would have chosen the law which had the greatest connection with their contract.
109. Although incorporated into English law by the Carriage of Goods by Sea Act 1924,
the English incorporation was inapplicable as it applied only to the carriage of goods
from England to a foreign country.
110. [1939] AC 277 at 289-290.
111. (1966) 9 JLR 468 at 471.
112. [1984] AC 50; [1983] 2 All ER 884.
113. It was decided, ultimately, that this was case in respect of which, the House should
exercise its discretion not to allow service of the writ ex juris.
114. [1983] 2 All ER 884 at 888-889.
115. Lord Wilberforce could find no basis for inferring, as between the parties to the
contract, an implied choice of English as opposed to Kuwait law. But he did find that
English law was the proper law on the basis of its stronger connections with the
contract.
116. RSC 1982, O. 11, R (2) (1) (m), Barbados); RSC 1975, O. 11 R (2) (m), (Trinidad
and Tobago); CPR 2002, R 7.3 (3), (a), (v), (Jamaica); CPR 2000, R 7.3 (3), (b), (i),
(ECSC).
117. [1968] 2 Lloyds Rep. 158.
Jurisdiction 161
118. RSC 1982, O. 11, R (2) (1) (h), (Barbados); RSC 1975, O. 11 R (2) (1) (h) Trinidad
and Tobago.
119. [1971] AC 458.
120. [1948] WN 366.
121. (1985) 14 DLR (4
th
) 391.
122. The Prime Minister had sought to sue NBC in The Bahamas but NBC chose not to
appear or otherwise submit to the jurisdiction - there was no information that the
broadcasts had been heard in The Bahamas.
123. This was the approach in George Monro Ltd., v American Cyanamid and Chemical
Corpn, [1944] 1 All ER 386, [1944] KB 432.
124. [1971] 1 All ER 694 at 700. Emphasis added.
125. Ibid., at 700-701. This substance of the cause of action test for identifying the place
of the tort is now widely accepted. See e.g., Metall and Rohstoff AG v Donaldson
Lufkin & Jenrette Inc [1990] 1 QB 391; Arab Monetary Fund v Hashim [1996] 1
Lloyds Rep 589 at 597; Lubbe v Cape plc [1993] IL Pr 113 at 123, CA; Connelly v
RTZ Corpn plc [1999] CLC 533 at 545.
126. (1973) 43 DLR (3d) 239.
127. Ibid., at 250-251.
128. CPR 2002, R 7.3 (4), (Jamaica); CPR 2000, R 7.3 (4), (ECSC).
129. See generally, David McClean, Morris: The Conflict of Laws (5th edn., 2000) at 355-
356.
130. [1994] 3 All ER 749.
131. Transnational Causes of Action (Product Liability) Act, 1997 (Act No. 16 of 1997),
(Dominica), s. 7.
132. Private International Law (Miscellaneous Provisions) Act 1995, (UK), s 11 (1). See
generally, Carter (1996) 112 LQR 190; Harris (1998) 61 MLR 33.
133. (1973) 43 (3d) DLR 239 at 242.
134. Unreported, Supreme Court, The Bahamas, No. 466 of 1987, dated May 31, 1988.
135. [1951] 2 All ER 69 at 73.
136. Ibid.
137. See e.g., Schibsby v Westenholz (1870) LR 6 QB 155, [1861-73] All ER Rep 988.
138. Unreported, High Court, St. Vincent and the Grenadines, No.130/85 & No. 335/
1985, dated January 1, 1986.
139. [1984] AC 50, [1983] 2 All ER 884, [1983] 3 WLR 241.
140. [1967] 2 Q.B. 590, [1966] 3 All ER 847 (Court of Appeal).
141. Unreported, High Court, Grenada, Suit No. 198 of 1966; dated, March 25, July 29,
1969.
142. Infra, Chap 7.
162 ELEMENTS OF PRIVATE INTERNATIONAL LAW
143. [1893] AC 602; 63 LJQB 70. See also Whitaker v Forbes (1875) Vol 1 CPD 51, 33
LT 582, an earlier decision that had suggested an action of debt brought for arrears
of a rent-charge upon lands in Australia prior to the commencement of the Judicature
Act, may, possibly be entertained after the commencement of the Act, which
provides that for the future there shall be no distinction between local and
personal actions as regards venue.
Ibid., at 52. In Mocambique this dictum was dismissed as non-binding.
144. Hesperides v Muftizade [1979] AC 508, [1978] 2 All ER 1168.
145. Raeburn v Raeburn, Unreported, High Court, Antigua and Barbuda, Suit No. 6 of
1988, dated March 20, 1997, although this cannot be said to have been done in a
way which fashions a Caribbean contribution to private international law. See
Winston Anderson, Foreign Orders and Local Land (1999) Vol. 48 ICLQ 167.
146. [1936] 1 KB 382.
147. British South Africa Co. v De Beers Consolidated Mines [1910] 2 Ch. 502; [1912] AC
52.
148. [1896] AC 602, at 626.
149. JD McClean, Morris: The Conflict of Laws, (4
th
edn. Sweet & Maxwell, 1993), at
308. See also, Nelson v Bridport (1846) 8 Beav 547; Hope v Carnegie (1866) LR 1
Ch. App. 320; Re Moses [1908] 2 Ch. 235; Re Hoyles [1911] 1 Ch. 179; Re Ross
[1930] 1 Ch. 377; Re Duke of Wellington [1948] Ch. 118.
150. [1930] 1 Ch. 377.
151. For the criteria of a true incidental question, see: JD McClean, Morris: The Conflict
of Laws, (4th edn., Sweet & Maxwell, 1993), at 424-427.
152. Cases such as Re Duke of Wellington [1948] Ch 118 raise the precise question whether
determination of title to the foreign land was a mere incident of the English
proceedings.
153. (1750) 1 Ves Sen 444; [1558-1774] All ER Rep 99.
154. [1970] 1 All ER 386, [1970] 1 WLR 390.
155. Colt Industries Inc v Galliher [1979] Ch 439, [1978] 3 All ER 945.
156. [1990] 1 All ER 909, [1991] Ch 75. See further, Pearce v Ove Arup Partnership [1999]
1 All ER 769.
157. Hesperides Hotels Ltd v Mufitzade [1978] 2 All ER 1168, (1979) AC 508 was thus
effectively overturned by s 30 of the Civil Jurisdiction and Judgments Act 1982
(UK). See Re Polly Peck International Plc [1997] 1 LS Gaz R 23. 1982.
158. Pearce v Ove Arup Partnership [1999] 1 All ER 769.
159. Ibid. If accepted, this would parallel the pre-Hesperides position as regards foreign
immovables depicted in St. Pierre v South American Stores (Gath & Chaves) Ltd [1936]
1 KB 382 and codified in s. 30 of the Civil Jurisdiction and Judgment Act 1982 (UK).
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