Lloyd's Maritime and Commercial Law Quarterly
THE JURISDICTIONAL GATEWAYS—SOME (VERY) MODEST PROPOSALS
David Foxton*
This article reviews the history of the gateways for service out of the jurisdiction in England and Wales, and seeks to identify the rationales which underpin them. The case for abolishing the gateways altogether, and applying only a forum conveniens test for service out purposes, is examined, the article concluding that there are reasons of principle and policy for maintaining the gateway requirement. The article identifies a number of variations or amendments to the current gateways which are consistent with their rationales, and which would better give effect to them.
In jurisdictional terms, 31 December 2020 brought a quiet counter-revolution, but one, nonetheless, in which some things “changed utterly”.1 The Brussels Regulation ceased to form part of English law; and, with the exception of cases where the parties had agreed to English jurisdiction,2 and some limited exceptions for employment and consumer claims3 or under certain statutes giving effect to international Conventions,4 service of proceedings out of the jurisdiction became possible only with the permission of the court. The ripples of that quiet revolution have made their presence felt in the volume of paper applications received and processed by the Commercial Court, with judges required to explore the jurisdictional Holy Trinity of gateway, serious issue to be tried and proper case for service out in relation to jurisdictions which have not been considered in this context for over 40 years. The second and third elements involve the relatively low hurdles of a claim which cannot be struck out, and the exercise of a broad-textured discretion. However, the first has always involved
* Judge of the Queen’s Bench Division, High Court of Justice of England and Wales, and of the Commercial Court. This article is based on a lecture given to COMBAR on 5 October 2021. I would like to thank the anonymous reviewer for their insightful comments. The following abbreviations are used:Brussels Convention: the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ l/299.Brussels Regulation or Brussels I Regulation: Reg.44/2001 on jurisdiction and enforcement of judgments in civil and commercial matters [2001] OJ L12/1; replaced by Reg.1215/2012 on jurisdiction and enforcement of judgments in civil and commercial matters (Brussels Recast I Regulation) [2012] OJ L351/1.Lugano Convention: Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (originally 1988, revised 2007).
1. With the expiry of the transitional period provided by the EU–UK Withdrawal Agreement of 19 October 2019.
2. Where service is effected under the Hague Convention on Choice of Court Agreements 2005 or where there is otherwise a contractual choice of jurisdiction in favour of the English courts and the requirements of CPR r.6.33(2B) are satisfied.
3. See Civil Jurisdiction and Judgments Act 1982, ss 15A–E; and CPR r.6.33(2).
4. CPR r.6.33(3). The various enactments are collected in Dicey, Morris & Collins on the Conflict of Laws, 15th edn (London, 2012), ch.15, Rule 60.
THE JURISDICTIONAL GATEWAYS—SOME (VERY) MODEST PROPOSALS
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