high court advocate

[Jane Maria]

Introduction: This paper endeavours to compare the traditional English law and the European Community (EC) law on jurisdictional values, because, it seeks to comprehend and elucidate why the former set of jurisdictional rules value flexibility and justice as the latter values certainty and predictability vis-à-vis the other. It shall analyse their historical or political background, their objectives and bases for assuming jurisdiction. It shall highlight the high court advocate regions of differences between these jurisdictional regimes with the help of authorities like significant Court cases and books that have besides explaining or simplifying the law also have helped its evolution.

Definition: The phrase 'Jurisdiction' might have several meanings, but if understood in context with the Court of law it generally means the ability or authority of a specific Court to determine the issues before it where a decision is sought. The principles on Jurisdiction play a pivotal role in determining the Court's ability to handle the issues in a given matter.

Jurisdictional issues become complex on the involvement of multiple Court having jurisdiction. This is certainly a location of concern not only for the international trade or business (who may be put in an invidious position where they're unacquainted with the extent of the liability) but also the sovereign states that seek to trade with one another and never having to spoil their amicable relationship.

The English Law: The English legal system (having the common law at its core) has already established and still continues to really have a formidable place in expounding the law on several issues, mostly as a result of option of intellectuals and experts that have helped it in doing so.

Traditional English law (the common law) is simply the case laws that have over period of time become an authority pertaining to the problem determined therein. Prior to entering the European Union (EU) by signing the document of accession in 1978, in the U.K, combined with judge made laws, even legislations played a significant role although it might have been more or less remedial in nature. However, it appears logical allowing the judge made law to try the legislation whenever it's so required by the change in circumstances which is often given effect to with relative ease as in comparison to the legislation process.

Ahead of the advent of the Brussels/Lugano system and the Modified Regulation the traditional rules were applied in most cases, and it's their historical roots which make it appropriate to refer in their mind as the traditional English law/rules.

The jurisdiction of English courts is decided by different regimes:
1. The Brussels I Regulation (hereinafter the 'Regulation') (an amended version of the Brussels Convention but notwithstanding the amendments it applies the same system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.

You will find other sets of rules on jurisdiction such as the EC/Denmark Agreement on jurisdiction and the those within the Lugano Convention; but their ambit is fixed in application to the cases where the defendant is domiciled in Denmark in case there is the former and in an EFTA member state in case there is the latter. There is also the Brussels Convention which pertains to Denmark alone.

The EC law: In contrast to the traditional English law, the European Community seems to position more importance on the legislative work compared to judge made laws. Apparently, for the EC, it's more critical that the essential edifice of the legal system ought to be based in a codified structure which it defends on the causes of simple understanding amongst other reasons. Whereas, English laws seem to place more focus on having a typical law or judge made law background. With this anvil, one begins to comprehend the differences that exist between the respective legal systems and their values, that's, a basic difference in the types of approaching the issues even yet in cases where their objectives may be same.

The EC law on jurisdiction is more inclined towards the significance of predictability and certainty in the principles than towards matters like justice and flexibility as may be understood upon reading the 11th recital of the Regulation that states: 'The principles of jurisdiction must be highly predictable and founded on the principle that jurisdiction must generally be based on defendants domicile and jurisdiction must always be available on this ground save in few defined situations...'

Whereas, the only reference to flexibility in the Regulation is within the 26th recital wherein it gives that the principles in the regulation may be flexible simply to the extent of allowing specific procedural rules of member states.

According to the EC law on jurisdiction, it seems that this particular requirement of predictability is essential for parties to a dispute to learn exactly within which jurisdiction(s) they could sue and be sued. The EC law gives priority to the primary objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore causes it to be mandatory to uphold the strict accuracy to its principle while giving secondary status to the objective of justice for the parties. The EC law along with the traditional English law may very well have their very own justifications and reasons for adhering to a particular system; but it's submitted that this seems to be not just a matter of difference in types of approach or attitude but also a matter of prioritization of the objectives by the EC law and traditional English law on jurisdiction. The list of cases mentioned hereinafter for the advantage of elucidating the topic under discussion are, as shall be evident, decided beneath the Brussels Convention which is often employed for interpreting the principles beneath the Regulation.

Comparison of EC Law v English Law:
1. Bases of Jurisdiction: Probably the most significant difference that exists between the traditional English laws and the EC law on jurisdiction could be the section of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Beneath the Regulation the assumption of jurisdiction is basically mandatory with the court not being free to decline jurisdiction; whereas beneath the English traditional rules the assumption of jurisdiction is discretionary.

The Regulation applies simply to matters which are civil and commercial in nature and never to those which have been explicitly excluded from its application (for e.g. Cases related to arbitration, succession, wills and bankruptcy have now been excluded from the application form of the Regulation). Whereas, the traditional English rules apply not only to cases that fall beyond your scope of Art.1 of the Regulation but also to those that fall within its scope where in fact the defendant isn't domiciled in virtually any member state and the jurisdiction isn't allocated by the rules which apply, aside from domicile.

A. In the traditional English rules the court has jurisdiction in three situations:
i. If the defendant is present in England (though the court may stay the proceedings on the ground that another court is just a appropriate forum). Jurisdiction under this situation is determined by the presence of the defendant in the country whereby the claim form may be served to him.
ii. If the defendant submits to the court's jurisdiction: wherein the defendant submits by not contesting jurisdiction or by arguing the case on its merits.
iii. If the claim falls within Practice Direction: (CPR PD 6B) (which is determined by the court giving permission to serve process out of its jurisdiction) where in fact the court considering England to be the most appropriate forum (despite of lack of reasons under i. or ii. on the cornerstone of some connection between England and the defendant. There seems on a perusal of the provision, a functional similarity with Arts.5 & 6 of the Regulation.

B. Jurisdiction beneath the EC Law: Except for many instances where in fact the applicability of the EC law on jurisdiction doesn't be determined by the defendants domicile (Art.22 Exclusive Jurisdiction and Art.23 Prorogation of Jurisdiction) the EC law on jurisdiction rests on the domicile of the defendant, and causes it to be mandatory for the court of a member state to determine the jurisdictional issues and other conditions where in fact the defendant is domiciled in its jurisdiction high court advocate.