PRIL Text chapter 4.pdf

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4

Jurisdiction

NATURE OF ACTIONS IN PERSONAM

Actions in personam are brought to establish rights and responsibilities asbetween the parties to the proceedings. Such actions may include claimsto damages in contract or tort, or the right to specific performance of acontract, or the right to an injunction to restrain or compell the doing ofsomething. According to Morris, these actions do not include ‘Admiraltyactions in rem, probate actions, administration actions, petitions inmatrimonial causes, or for guardianship or custody of children, orproceedings in bankruptcy or for the winding up of companies.’1 The genredoes however encompass actions for maintenance or for alimony.

The most outstanding feature of the rules for jurisdiction in actions inpersonam is their essentially procedural nature. There is, in general, littleconcern for any substantial connection between the parties and the forum,or the subject matter of the dispute and the forum. As a rule, any personmay invoke the court’s jurisdiction or become amenable to that jurisdiction,provided only that the defendant is properly served with process. Process isnormally a writ, but may be a summons or other claims document.

There are three bases upon which jurisdiction is normally founded. Adefendant in an transnational action is amenable to jurisdiction by serviceof process pursuant to his or her presence within the jurisdiction, voluntarysubmission, or where the court allows service of process upon him or her

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outside the jurisdiction pursuant to O.11 or other similar statutoryauthority.2 These matters are discussed below.

In exceptional circumstances competence may be denied because thecourt does not have jurisdiction over the subject matter of the dispute,even though, all else considered, the requirements for in personamjurisdiction are satisfied. Subject-matter jurisdiction is well developed inUnited States where constitutional and statutory provisions in each stateauthorise 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 thatactions based upon rules or situations with respect to which the interestsof a particular foreign state is paramount should give rise to the exclusivejurisdiction in the courts of that state. The isolated circumstances wherethis notion arises are considered below.

Two final preliminary points are worth making. First, there is anestablished practice in many common law jurisdictions whereby judgesexercise discretion to refuse to hear cases in respect of which personal andsubject matter jurisdiction have been established. The nature, exercise andprobity of this discretion are discussed in the chapter following. Secondly,in cases covered by sovereign or diplomatic immunity, the forum will haveno jurisdiction even though, all else considered, it has competence over theparties and over the subject matter of the dispute. The doctrine of immunityis 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 ispresent within the jurisdiction is the historically orthodox method ofestablishing jurisdiction. The underlying consideration is that everyonewithin the jurisdiction owes a sufficient degree of allegiance or at least anobligation to the state and its courts to obey judicial decrees. The rule istherefore based upon the duty of nationals, residents, and foreigners toobey the laws of the countries in which they are present, and is thus relatedto the concept of territorial sovereignty in public international law.4

As was said by Viscount Haldane nearly 100 years ago,5 ‘The rootprinciple of the [local] law about jurisdiction is that the judges stand in

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the place of the Sovereign in whose name they administer justice.’Accordingly, ‘whoever is served with the [Sovereign’s] writ, and can becompelled consequently to submit to the decree made, is a person overwhom the Courts have jurisdiction.’ Given that ‘the foundation ofjurisdiction is physical power’6 the actual degree of connection betweenthe defendant and the forum is immaterial. It does not matter that thestay was temporary or that the presence was fortuitous in that it wasunconnected with the litigation. Once the defendant is in the countryservice can be effected, and once service had been effected the court hasjurisdiction.

Individuals

HRH Maharanee of Baroda v Wildenstein7 illustrates beautifully the rulethat the physical presence of the individual is a sufficient basis forjurisdiction. The plaintiff, an Indian princess and resident of France,purchased a painting from the defendant, a French art dealer who alsoresided in France. The sale took place in Paris with the defendantrepresenting that the painting was La Poesie by Boucher. When the plaintiffdiscovered that the painting had not in fact been done by Boucher but byone of his disciples, she issued a writ in England claiming rescission of thecontract and repayment of the price. She chose England as the place oftrial because she could get a speedier trial and could subpoena expertwitnesses.

The writ was served on the defendant when he paid a fleeting visit toEngland to attend the Ascott races. He applied to have service set aside onthe ground that it was frivolous and vexatious and an abuse of the processof the court. It was held that the application would be dismissed. Thedefendant had been properly served with the writ during his presence inEngland and the plaintiff was therefore ‘entitled to require’ the courts toproceed to adjudicate upon the merits of the claim. Lord Denning declinedto accede to the application for setting aside of process. The princess andthe art dealer had established social and sporting connections with England.Besides, the subject matter of the litigation, art, was international andtherefore unlike an action in respect of a road accident in Rome, when twoItalian citizens were in collision.

Colt Industries v Sarlie8 casts some doubt on whether these backgroundreasons for refusing the application are necessarily sufficient ones. Theplaintiff was a New York company and the defendant was an Americancitizen, and the dispute concerned an American debt. Nonetheless, theplaintiff had a writ served on the defendant while he was staying for a few


days at a London hotel for purposes unconnected with the litigation. Itwas held that the English courts had jurisdiction.

Moreover, once jurisdiction is established on the basis of presence, thecourt is not rendered incompetent by the mere fact of the defendant’sdeparture 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 cannotliterally be physically present in the forum. Local companies, that is,companies registered in the Caribbean country concerned, are required tohave a local registered office.9 Under traditional doctrine, service could beeffected at the registered office. The Jamaican Act provides that processmay be served on the company ‘by leaving it at or sending it by post to theregistered office of the company.’10 The Barbados, and Trinidad and TobagoActs are more expansive. Service may be effected by leaving the documentat, or sending it by telex or by prepaid post or cable addressed to theregistered office of the company’.11 Moreover, under these statutes, servicemay also be effected, ‘by personally serving any director, officer, receiver,receiver-manager or liquidator of the company.’12 In appropriate cases anorder for substituted service upon an insurance company resident withinthe jurisdiction may be obtained in respect of an action against the insuredwho cannot be traced or who is outside the jurisdiction.13

Foreign companies present more abstract problems. At common lawpresence was equated with the establishment of a place of business in theforum. A foreign company could only be served with process within thejurisdiction if it was carrying on business at a place within the jurisdiction.This required first, that the company must have done business in, notmerely with the Caribbean country, and second, that the transactions musthave been effected from a fixed place of business for a definite period oftime.14 So, in Humphrey v Jolly Roger Cruises Inc.,15 the mere presence oftravel agents in the country who could advertise about but not book cruiseson the defendant’s pleasure boat indicated that the links between thedefendant and the country were too tenuous to give the defendant a presencethere.16

Legislation has intervened to regulate service on companies incorporatedoutside but carrying on business within the forum.17 Such companies arerequired to deliver documents to the Registrar of Companies, including alist of directors and the names and addresses of someone resident in the

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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 personso authorised to accept service and left or sent by post to that person’saddress. Where this is not possible by reason, for example, that the companydid not deliver the necessary particulars to the Registrar or the authorisedpersons have died, service may effected by leaving the document at orsending it to any place of business established by the company in thecountry.19

Construction of the notion of place of business under the statute wasinitially assumed to be the same as at common law.20 But the EnglishCourt of Appeal decision in South India Shipping Corpn Ltd v Export-ImportBank of Korea21 casts doubt upon this apparently reasonable assumption.It was held that a Korean bank, which had an office in London for thepurpose of publicity, and gathering information and maintaining publicrelations with other banks, had a place of business in England. This wasthe case even though the bank concluded no banking transactions at theLondon office but merely carried out preliminary work in relation to grantingor obtaining loans. Throwing off the common law rigid list of requirements,Ackner LJ said that ‘Parliament has placed no express qualification orlimitation on the words ‘a place of business’ and there seems no goodreason why we should imply one.’22

Presence by Trickery

Watkins v North American Land and Timber Company Ltd.,23 raised thepossibility that jurisdiction may be denied in circumstances where theplaintiff was deliberately tricked by the defendant into coming within theterritorial limits of the country. The appellant was a citizen of the UnitedStates and permanently resident in the State of Kansas. The respondentwas a company registered under the English Companies Act with the objectof acquiring land in the United States. In 1883 the respondent appointedthe appellant as their general manager in America but serious difficultiesarose between them in 1901 that resulted in considerable litigation inAmerica. On August 26, 1901, the respondent issued a writ in the currentaction claiming to recover moneys had and received by the appellant forthe respondent’s use. The appellant had no notice of the writ.

The respondent invited the appellant to England suggesting that therehe 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 wasa personal invitation, which could be satisfied only by the presence of the


appellant. In response to this invitation the appellant arrived in Londonon June 28, 1902. On June 30, 1902, the chairman of the company calledon the appellant, and after exchanging the usual courtesies served theappellant with the writ issued on August 26, 1901. The appellant’s attemptto set aside service of the writ of summons in the action and all subsequentproceedings 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 afinding of fraud, the appeal must fail. If the directors had no real intentionof discussing matters with the appellant, and their invitation had been amere pretext for getting him within the jurisdiction in order to serve thewrit then jurisdiction would be denied. But if there had been a real intentionto discuss the other matters in difference, although the directors alsointended to serve the writ, the appellant’s case would not be made out. Inthe affidavits filed on the part of the respondent, upon which there hadbeen no cross-examination, it was stated that up to the day when the writwas served it was the intention of the Board to meet the appellant anddiscuss all his charges and alleged grievances. It did not occur to the Boardthat the issue or service of the writ would prevent them from doing so.Accordingly, the Court could not properly have held that the charge offraud had been proved, and jurisdiction could be maintained.

This is a very interesting decision.24 Where the plaintiff possesses dualmotives for inviting the defendant within the jurisdiction, that is, tonegotiate towards a resolution of the dispute and to commence legalproceedings, service of process will not adversely affect the competence ofthe court unless fraud can be proved. Proof of fraud requires overcoming avery heavy burden, and attorneys are trained not to alleged fraud unlesspersonally convinced of it. At the same time, negotiations can always breakdown. Each party (and therefore the plaintiff ) has a monopoly over itssuccess. In effect, then, the plaintiff appears to be given near monopolisticcontrol over whether the defendant’s presence in the jurisdiction can beconstrued 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 groundsof equity. If it is the latter, then there may be a case, in appropriatecircumstances, for weighing the undesirable conduct of the plaintiff againstany untoward conduct by the defendant in assessing whether to exercisejurisdiction. Nor is it clear whether jurisdiction can be sustained if a thirdparty tricks the defendant into coming within the jurisdiction.

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Submission

A defendant, whether individual or corporation, not otherwise subject toin personam jurisdiction may be precluded by conduct from objecting tothat jurisdiction. If the defendant voluntarily submits to the jurisdictionof the court, then the court will have jurisdiction over that defendant. As amatter of practical importance, the present concern boils down toascertaining the circumstances in which submission will be deemed tohave 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 herattorney to accept service will obviously be deemed to have submitted tojurisdiction. Acceptance of service refers in this context to the unconditionalacceptance of process. Similarly, a defendant who, whether personally orthrough legal representatives, contests the case on the merits and loses. Inthis context, actions of the attorney are imputed to the defendant.

Jurisdiction Clause

Contracting parties may select the forum for the adjudication of any disputearising under their contract. There is a case of submission where thejurisdiction clause elects the forum as the place for litigation.25 Service ofprocess may be effected directly upon the defendant; or if the defendant isabroad, the defendant’s representative; or at an appropriate place of business.Procedural rules may even allow service of process upon the defendant in aforeign country outside of the strictures of Order 11. This procedure parallelsone of the methodologies by which the International Court of Justiceassumes jurisdiction over inter-state claims.26

Contesting Litigation

Appearance solely to protest jurisdiction

Whether acknowledgement or even acceptance of service merely to protestagainst the alleged jurisdiction of the court amounts to submission isunclear. It may be that a person who is outside of the jurisdiction feelscompelled to respond in some way to the service of process for fear that anyassets there will be seized to satisfy judgement in default of appearance.The person may be unable to extract the assets from the country becausethe other side will usually seek a Mareva injunction to avoid their removal.Even in circumstances where the person has no property in the country, aresponse may be mandated because a judgment in default may be enforced


in the country where the assets are located by reference to the law governingrecognition and enforcement of foreign judgments.27

Re Dulles Settlement Trusts (No. 2)28 involved a father, an Americancitizen, who had obtained a divorce and subsequently an order for custodyof the infant child of the marriage from the French courts. The infant (byhis mother as next friend) brought a summons in England asking for themother to be given custody and also that provision be made for hismaintenance. 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 wassent to his solicitors. Through them, the father, who was then living in theUnited States, contested, ultimately unsuccessfully, the mother’s claim forcustody. He also opposed any order for maintenance being made againsthim on the ground that the court had no jurisdiction to make such anorder, and further, that the infant and not the mother had made theapplication.

It was held that while the father must be taken to have submitted tothe 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 hadnot, by his technical objection as to parties, submitted to jurisdiction.Denning LJ could not see, ‘how anyone can fairly say that a man hasvoluntarily submitted to the jurisdiction of a court when he has all thetime been vigorously protesting that it has no jurisdiction.’29 There was nodifference in principle between the person who merely does nothing andanother who ‘actually goes to the court and protests that it has nojurisdiction.’30

In coming to his conclusion in Re Dulles Settlement, Denning LJthought that the earlier case of Harris v Taylor31 was in conflict and soughtto distinguish it. In the latter case the plaintiff has sued the defendant inthe Isle of Man for the tort of loss of consortium and criminal conversationswith 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 himout of its jurisdiction on the ground that the cause of action was foundedon a tort committed in the Isle. The defendant entered a conditionalappearance in the Manx Court and took the point that the cause of actionhad not arisen within the Manx jurisdiction. That point depended on thefacts of the case and was ultimately decided against him. Thereafter hetook no further part in the proceedings. The plaintiff, having obtainedjudgment in default, sought to enforce it in England. It was held that the

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judgment could be enforced because the defendant had submitted to thejurisdiction of the Manx Court.

Denning LJ thought that Harris v Taylor was no authority on whatconstituted submission to jurisdiction generally. It was merely an authorityon res judicata. The English courts could not allow the defendant to contestservice on him out of the Manx jurisdiction, because that was a point hehad 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, whereasRe Dulles was concerned with submission to the forum. Arguably, then,Harris was not on point. More substantially, it has been persuasively arguedthat the submission in Harris could be deemed to have been on the meritsand was not strictly an appearance to protest.32 This view is derived fromthe nature of the conditional appearance, which is an appearance for allpurposes except the reservation of the right to challenge the service out ofprocess. Where the challenge fails the appearance is converted into anunconditional acceptance of the jurisdiction.

In Henry v Geopresco,33 another case on the English enforcement offoreign judgments, Roskill LJ, delivered the judgment of the Court ofAppeal. He disagreed, ‘with the most profound respect’, that Harris v Taylorwas merely an authority on res judicata. He found the reasoning by DenningLJ, ‘circular’ since the decision of the Isle of Man Court could only be resjudicata if the defendant was bound by it, and he was bound by it only ifhis actions constituted voluntary submission. Doubts were expressed aboutwhether the decision in Re Dulles’ Settlement (No. 2) could itself be supportedsince it was impossible to see how the father’s appearance was limited towardship and custody proceedings.34 In any event, the Court found:

The authority of Harris v Taylor [was left] wholly unshaken. … It follows that wefind ourselves unable to agree with the statement by Lord Denning that Harris vTaylor is not an authority on what constitutes a submission to jurisdiction. So faras this court is concerned it is binding authority on that subject.35

On the primary question concerning whether appearance solely toprotest against the jurisdiction is without more to be equated with voluntarysubmission, the following was said:

The defendant need not appear there, conditionally or unconditionally. He canstay away. But as the cases say, he may prefer to take his chance upon a decision inhis favour. If he does so, he must also accept the consequences of a decision againsthim.36


As shown earlier, this is a rather simplistic view of the options availableto a defendant anxious to protect ownership of property. In any event, inthe 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 whatis and what is not an appearance solely to protest against the jurisdiction is narrowand may often be difficult to draw satisfactorily. But, as we think, it must dependin each case upon what it was that the defendant did or refrained from doing inrelation to the jurisdiction of the foreign court.37

As pointed out, both Harris v Taylor and Henry v Geopresco were decisionson the enforcement of foreign judgements. Any temptation to distinguishthem from Re Dulles Settlement Trusts on this basis would be all the morealluring because of the principle that, in order for its judgment to beenforceable the foreign court must have exercised jurisdiction in a mannerrecognised by the forum as sufficient to ground jurisdiction. This may notbe synonymous with the individual grounds upon which the forum assertsits own jurisdiction.38 Where the same concept is used, in this case,submission, the question is whether it would be taking matters too far tosuggest that that notion is interpreted differently depending upon whetherthe 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 Geoprescodrew a sharp distinction between entry of a conditional appearance andappearance solely to protest the court’s jurisdiction. The latter case was leftundecided. However, by the nature of the conditional appearance thedefendant admits that the court has ‘compulsory’ jurisdiction under itsown local law and that it is within the discretion of the court whether ornot to exercise that jurisdiction. If therefore the defendant entered aconditional appearance or takes some other comparable step, he is therebyconditionally agreeing to submit to that jurisdiction. If his application toset aside service then fails, that condition is fulfilled.39

The nature and consequences of the conditional appearance were furtherexplained in Tigerair Inc., v Summrall.40 Counsel for the plaintiff arguedthat the defendants had submitted to the jurisdiction of the Supreme Courtof The Bahamas because they had neither entered a conditional appearancenor applied to set aside the service of process. Malone J found that thesubmission was not well founded. Had the defendants entered a conditionalappearance that would, under the Rules of the Supreme Court,41 have

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amounted to a complete appearance for all purposes, subject only to theright reserved to set aside the service. A chance would therefore be takenthat his appearance, being voluntary, would be considered submission ifthe court rejected his challenge to service. The safest course was thereforenot to enter a conditional appearance but simply to apply to set aside theservice on the ground that the court had no jurisdiction over him. Thatwas what the defendants had done.

An interesting gloss was placed upon this understanding of the law inWindward Properties v The Governor General of St. Vincent and theGrenadines.42 In response to service by the plaintiffs, the defendants filed aconditional appearance that was irregular. The plaintiffs did not seek to setaside the irregular entry of appearance, as they could have done.43 Instead,they sought to argue that the appearance had become complete orunconditional by reason of the defendant’s failure to apply within the timelimit for the setting aside of service. It was held that the irregular appearancewas of no effect and that the Registrar had properly given the defendantsleave to enter a new conditional appearance.

Contest to Exercise of Discretion

There is little doubt where the plaintiff appears, personally or throughattorneys, for the sole purpose of inviting the court to exercise its discretionagainst assumption of jurisdiction, that should the court decline to acceptthis invitation, the plaintiff will be deemed to have submitted. In Henry vGeopresco International Ltd.,44 the Alberta courts had competence undertheir own local rules to exert jurisdiction over the defendant companyregistered in Jersey and who had no branch or assets in Canada. Uponbeing sued with process in Jersey the defendant applied to the SupremeCourt of Alberta for an order to set aside the service on the ground, interalia, that Canada was not the convenient forum for trial. It was held thatsince the defendant had voluntarily appeared before the Canadian court toinvite it not to exercise the discretion it possessed under its own law toassume jurisdiction, they had submitted to that jurisdiction. No thoughtwas expressly given to the fact that without the plaintiff ’s intervention, thecourt would not have had competence in the international sense and thatthe 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


if process is properly served on the defendant outside the jurisdiction.Service outside the jurisdiction is often referred to as service ex juris.45 Thepower to assume jurisdiction in this way is provided for in the Rules of theSupreme Court, usually Order 11. A major objective of the order is toallow cases that are closely connected with the forum, but in respect ofwhich no jurisdiction exists pursuant to presence or submission, tonevertheless be tried in the forum. Such cases should be tried locally becausethey are closely connected with or affect the interests of the forum in someimportant way.

In order for service to be authorised, the plaintiff must receive leavefrom the Supreme Court. Authority for the granting or leave is traditionallycontained in the Rules of the Supreme Court, Order 11, as continues to bethe case in Barbados46 and in Trinidad and Tobago.47 Modern revisionshave been undertaken in Jamaica48 and in the Eastern Caribbean SupremeCourt.49 Two features permeate the regimes; leave can only be grantedupon the plaintiff ’s satisfaction of two conditions. Lord Diplock referredto these conditions in Amin Rasheed v Kuwait Insurance Company50 as twoobstacles: the obstacle of jurisdiction and the obstacle of discretion.

Obstacle of Jurisdiction

In order to obtain leave, the first requirement is that the plaintiff mustbring the case within one or more of the categories of Order 11. This is aquestion of law, or more specifically, a question of construction of the Order,akin to the notion of statutory interpretation. This question is in the bestsense procedural and therefore falls to be determined by local law alonesubject, of course, to any contrary legislative provisions. If the plaintiffcannot surmount this first obstacle then the case fails at this point and thecourt cannot allow service out.

Any procedural requirements must be fully complied with. Thus, it isthe responsibility of the plaintiff to make clear the intention to seek serviceout so that proper consideration can be given to the application. Incircumstances where the defendant is resident both within and outside thejurisdiction, it is incumbent upon the plaintiff to indicate whether serviceis to be effected at the local or foreign address. Where local service is intendedthe writ is likely to be stamped with the endorsement ‘Not for serviceoutside the jurisdiction.’ Failure to have the writ so stamped is anirregularity and a ground for setting service aside, even if the plaintiffsintended to serve the writ on the defendants if they came within the

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jurisdiction at any time.51 The address as well as the name of the defendantis a necessary part of the writ. Even if the writ is for service within and notoutside of the jurisdiction, it will still not be sealed if the Court observesthat there was no address of the defendant on it or if there is only a foreignaddress.

To similar effect may be read the case of Bahamas International TrustCompany Limited v Lisk Wyckoff.52 This involved service outside thejurisdiction upon a firm. While a firm carrying on business within thejurisdiction could be sued in the firm name, there was no such provision inOrder 11 permitting firms outside of the jurisdiction to be thus sued andserved. Individual partners had to be named. Accordingly, service ex juriseffected upon the firm was set aside.

Contrast the case of Marics and Company Ltd., v Florence White.53 Servicewas effected on the defendant outside of the jurisdiction in a case wherethe subject matter of the action was immovable property situated withinthe jurisdiction. No order or leave had first been granted for service out.The Court accepted that this was an irregularity but pointed out that thedefendant had not moved the court within the statutorily provided sevendays after entry of appearance to have the writ set aside. It refused to setaside service since the defendant had never protested jurisdiction but hadrather submitted to and taken full part in the proceedings after knowledgeof the irregularity of service.

Satisfaction of Legislative Requirements

Strict fidelity to the local legislative provisions means that service out cannotbe allowed simply because such service is permissible under the Englishprovisions. This was made clear in the Trinidad and Tobago case of McCarthyv Pawan.54 Rees-Davis CJ found that provision was made under the Englishrules for service out of the jurisdiction of certain classes of originatingsummonses but that the local rules did not do so. The local rules dealtfully with service out of the jurisdiction as regards writs but contained noreference to originating summonses. Although Order VI did make referenceto service out of the jurisdiction of originating summonses, ‘it was tooindefinite to convey the necessary statutory authority’.

Neither can service out be allowed in a case where the legislativeprovision is not satisfied, as was illustrated in Mauroux v Soc.Com. AbelPereira Da Fonseca SARL.55 The plaintiff wrote from England to thedefendant in Portugal proposing that he should become sole agent to thedefendant for the export to England of their wines and, possibly, spirits.


After negotiations by correspondence and a face to face meeting in Londonthe plaintiff was, by a contract made in Portugal, appointed agent for theBritish Isles. Subsequently the defendant terminated the contract on groundof unsatisfactory performance. The plaintiff then sought to bring an actionfor breach of contract in the English courts on the ground that by its termsand implications the contract was governed by English law. However itwas held that Portuguese law governed the contract and therefore thatleave could not be given.

Categories for Service Out

For present purposes it will be convenient to consider five categories withinwhich the plaintiff may bring the case. These are the circumstances inwhich the defendant is domiciled or resident in the forum; the plaintiffseeks injunctive relief; the defendant is a necessary and proper party to thelitigation; certain contract actions; and certain actions in torts. Service outof the jurisdiction in actions in personam is quite seriously restricted inAdmiralty proceedings, 56 but this matter is not given distinct treatmenthere.

Domiciled or Ordinarily Resident

The forum can allow service out if the action is brought for a remedyagainst a person domiciled or ordinarily resident within the jurisdiction.57

This provision is necessary despite the basic rule regarding service pursuantto presence, because a defendant may not be present in the jurisdiction ata time when he is domiciled or ordinarily resident there.

In Re Liddell’s Settlement Trust58 the wife of a husband domiciled andresident in England took the four children of the marriage to live with herin 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 inEngland. Dismissing her appeal against the sequestration of her property,it was held that the Court had full jurisdiction to make the order althoughshe was outside of the country. Process had been served upon her in NewYork and properly so by reason of the fact that relief was sought against aperson domiciled or ordinarily resident within the jurisdiction. In thesecircumstances, the wife was within the reach of the court.

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Injunctive Relief

Permission may be granted for service out in furtherance of the objective ofobtaining injunctive relief. The traditional wording of the Rules allows forassumed jurisdiction when, in an action begun by writ, an injunction issought ordering the defendant to do or refrain from doing anything withinthe jurisdiction, whether or not damages are also sought.59 Modern versionsare less wordy, allowing a claim form to be served out of the jurisdiction ifa claim is made for an injunction ordering the defendant to do or refrainfrom 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 soughtbona fide in a genuine dispute concerning whether some action by thedefendant in the Caribbean jurisdiction should be mandated orprohibited.61 Leave will not be granted if the injunction would beineffective,62 or if a repetition of the action complained of cannot bereasonably anticipated.63 Leave was granted in James North & Sons Ltd vNorth Cape Textiles Ltd.64 and a permanent injunction ordered restrainingthe defendants, who were domiciled in Scotland, from inducing breachesof contract and torts within England. An injunction was also granted inanother instance to prevent serious harm to the plaintiff ’s reputation andgoodwill from the risk that its Internet domain name would be confusedwith that of the defendant, whose site was dedicated to phone sex andpornography.65

But service out was refused in Rosler v Hilbery.66 An injunction wassought against a defendant solicitor in the forum restraining him fromparting with a sum of money belong to a foreign defendant. As the solicitorhad previously given an undertaking not to part with the money untilfurther order, the injunction was wholly unnecessary. It had been asked foronly to empower the court to make an order for substitute service underanother head of the Rules. Accordingly, the application for the injunctionfailed.

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, wasinterlocutory and meant to restrain a defendant from removing his assetsfrom the jurisdiction, or from dissipating them, before the trial of theaction. In this way, the injunction is incidental to and dependent uponthe enforcement of a substantive right and could not exist on its own.


Furthermore, as the injunction was not the substantive remedy sought itwas considered that there was no power to allow service out in aid of it.68

Two developments have eroded this position. Where the forum makesan order for the mandatory stay of an action, it has become acceptable togrant an injunction to secure interim relief. The House of Lords acceptedthese sentiments in Channel Group v Balfour Beatty Ltd69 although theaward was not considered appropriate in that case. Also, it has becomeconventional 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 toissue service outside the jurisdiction even where the only remedy claimedagainst the defendant was a Mareva injunction in support of foreignproceedings. A worldwide freezing order in aid of proceedings in a foreigncourt 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 the1990s. Thus in James Brodie & Co Ltd v Juarez72 the Supreme Court ofBelize granted an injunction to restrain the defendant from removing outof the jurisdiction, a truck detained at the Mexico border. The defendantresided outside the jurisdiction, had no known assets in Belize other thanthe truck, and the plaintiff, who had a valid claim for goods sold anddelivered to the defendant, had given an undertaking in damages.73

There is some suggestion that the award of the Mareva injunction iscontingent upon the local court being the forum conveniens for theproceedings.74 Certainly there must be a clear risk of the relevant assetsbeing dissipated or removed prior to trial. Moreover, such an injunctionwill only issue where it is just and convenient to do so.75 Whether a freezinginjunction can be awarded in respect of assets not physically in thejurisdiction was until recently considered doubtful, given the wording ofthe rules.76 But in Walsh v Deloitte & Touche Inc.77 the Privy Council expresslypermitted a mareva injunction in respect of assets within and outside TheBahamas notwithstanding that there was no statutory provision allowingthe grant of the freezing injunction.

Necessary or Proper Party

Traditionally, leave may be granted if the claim, being properly broughtagainst a person duly served within the jurisdiction, a person out of thejurisdiction is a necessary or proper party thereto.78 This requiresestablishment of at least six conditions, some of which have been modifiedor dispensed with under the new civil procedure rules adopted by theSupreme Court in Jamaica79 and the Eastern Caribbean.80

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1. Multiplicity of Parties

There must be a multiplicity of defendants. For the sake of simplicity wemay say that there must be at least two defendants: a first defendant whois served, and a second defendant, whom the plaintiff or claimant nowwishes to serve out of the jurisdiction. Typical situations include instancesof joint liability as where debtors or tortfeasors are jointly liable to theclaimant.81 Similarly, where the plaintiff has alternative claims against twopersons, as for example, where there is a claim against agents in the forumfor 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 theolder version and an implicit requirement under the newer version of theRule. There must exist on the merits a serious issue to be tried in respect ofthe first defendant. In other words, that person must not be served simplyas a strategy for making the second defendant answerable to the jurisdictionof the Caribbean court. This allows the court to protect the second defendantin 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. Serviceout was denied in Rosler v Hilbery84 because the injunction was soughtmerely as a ploy in order to obtain assumed jurisdiction over a foreigndefendant. But sometimes motive is difficult to ascertain; the courts attemptto scrutinize whether applications are made bona fides but only God canread the hearts of men. Where there is uncertainty on this point, the suitmay be given a pass. So, in Quinn v Pres-T-Con Ltd85 the action in Englandagainst the first defendant appears to have been started as a way of suingthe second defendants who had been directly responsible for the accidentin Trinidad. Nevertheless the English Court allowed service out on thebasis that the Trinidad defendant was a necessary or proper party to theEnglish proceedings and enforcement proceedings in the Trinidad Courts,including in the Privy Council, refused to condemn the English serviceout. The point was taken, and rightly so it is suggested, that the mattershould 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 mustactually have been served before the request for service out.86 This is not


required under the newer Rule, which makes provision in respect of aclaim made ‘against someone on whom the claim form has already been orwill be served.’ The adjustment comes in the wake of conventional andjudicial acknowledgments that the older wording was meant to but couldnot 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 defendantmust have been served within the jurisdiction. There is no such explicitrequirement in the more recent provision, allowing for the argument thatthe first defendant could be served pursuant to another sub-heading of theCivil Procedural Rules. This would comport with the realisation of theineffectiveness of the old wording to ensure the propriety of proceedingsagainst the first defendant.

5. Second Defendant as a ‘Necessary or Proper’ Party

The second defendant, whom the plaintiff or claimant wishes to serve outof the jurisdiction, must be shown to be ‘a necessary or proper party’ to thesuit against the first defendant. These terms are disjunctive, so that a personmay be a proper party although not a necessary party. Whether a person isa 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 ruleson joinder of parties.88 Chile Holdings (Cayman) Ltd v Contadora EnterprisesSA89 adopted the English test as authoritative:

The applicability of the sub-rule was limited to the extent that it could be determinedthat common questions of law and fact arose in relation to the claims against heparties, such that if all were present within the jurisdiction they could each havebeen made parties to the same proceedings.

On the facts, the appellants were proper parties to be joined as therespondents’ claim against all the parties was founded upon an allegationof conspiracy to defraud. But the second defendant will not be a necessaryor proper party if the claim should have been principally brought againstthe first defendant,90 or if the claim should have been primarily broughtagainst the second defendant.91 A similar finding obtains if the seconddefendant has a good defence in law and the claim is therefore bound tofail.92

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6. Reluctance to Allow Service Out

There has been especial reluctance to allow service out under this particularcategory. The provision is obviously useful in that it allows for theconsolidation of litigation in one country. But litigational convenience mustcontend with the countervailing consideration of lack of connection betweenthe second defendant and the forum. As was said in Multinational Gas andPetrochemical Co v Multinational Gas and Petrochemical Services Ltd:93

It is anomalous in that, different from the other sub-paragraphs, it is not foundedupon any territorial connection between the claim, the subject of the relevantaction, and the jurisdiction of the [forum]. This requires one to look particularlyclosely at any application founded upon this sub-paragraph.

Contracts

The court can allow service out in several types of contract disputes. Thecases 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 thejurisdiction, the forum can give leave for service out.94 The local lawdetermines the place of contract formation.95 Thus in the case of a contractmade inter praesentes the agreement would have been concluded in thecountry where the parties shook hands, signed the relevant document, orgave other indication of consent, notwithstanding that one or both partiesare foreigners.96 Contracts made by post are concluded in the countrywhere the letter of acceptance is posted.97 By contrast, in the case of acontract made by ‘instantaneous communication’98 the contract is madein the country in which the acceptance of the offer is received.99

The case of Henry v Geopresco International Ltd.,100 illustrates the makingof a transnational agreement within the jurisdiction. The plaintiff at allmaterial times lived in Calgary in Alberta. The defendant was a limitedliability 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 allowservice of the writ outside the jurisdiction on the defendant company.

In Brinkibon Ltd., v Stahag Stahl101 it was the negotiation rather thanthe parties, which crossed the boundaries of the country. An Englishcompany was unable to obtain leave to issue a writ against the defendanton the basis that their contract had been made in England. Negotiations


had been conducted by telex between Vienna and London. The plaintiffhad sent a telex from London to the defendants in Vienna offering to buya quantity of mild steel bars on certain terms. The defendant sent a telexfrom Vienna to the plaintiff in London making a counteroffer. The plaintiffaccepted the counteroffer by telex sent from London to Vienna, andinstructed its banks to open a letter of credit in favour of the defendantswith a Swiss firm in Switzerland. Subsequently, the defendant complainedthat the plaintiff had not opened a proper letter of credit and withdrewfrom the contract. The plaintiff ’s application for leave to serve a writ on thedefendants outside the jurisdiction was denied on the basis that the contracthad 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 throughan agent trading or residing within the jurisdiction on behalf of a principaltrading or residing out of the jurisdiction.102 There is no definition of theterm ‘agent’, which therefore receives its ordinary meaning derived fromthe common law. Generally, an agent is a person authorised to act foranother, who is called the principal, and who is, in consequence, bound bythe actions of the agent. A primary function of the agent is to bring hisprincipal into contractual relationships with other persons. An agency canbe created by express agreement, implication or conduct, or by necessity,as when a person has been entrusted with another’s property, thepreservation of which requires certain actions such as the feeding and stablingof an animal.103

It is fairly simple to understand the circumstances in which a contractis made by the agent. These approximate the circumstances in which thecontract is made within the jurisdiction, except that the agreement isconcluded with the representative of the relevant party. Making a contractthrough the agent is a more novel concept that calls for greater scrutiny. InNational Mortgage Co. of New Zealand v Gosselin,104 the defendants were apartnership constituted in accordance with Belgian law and did not carryon any business in England. The partnership had an agent in London whowas authorised to negotiate on its behalf, but not to enter into bindingcontracts. All that the agent was entitled to do was to receive orders andsubmit them to the Belgian principals for their approval and acceptance.The offers in the present case had all been addressed by the plaintiffs to theagent, who had transmitted them to the defendants in Belgium. The Belgianfirm had sent the acceptances directly to the plaintiffs. It was held that

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service could properly have been allowed ex juris on the defendants.Although their agent in London had not made the contract, it had beenmade through him.

3. Contract governed by local law

The court can allow service out of the jurisdiction if by its terms or byimplication local law governs the contract.105 Under the terminology ofprivate international law, the law that governs a contract is referred to asthe proper law of the contract. Accordingly, service out is possible if theproper law of the contract, its lex causae, is the law of the forum, or the lexfori.

Ascertainment of the proper law of contracts is a specialised science ofprivate international law. For present purposes, it is sufficient to refer tothe Privy Council in the leading case of Vita Foods Products, Inc., v UnusShipping Co., Ltd.,106 for the proposition that the predominant considerationis party autonomy. Parties have freedom of choice, and the law chosen bythe 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 willbe 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 withwhich the contract has its most real and substantial connection.108 In otherwords, the governing law will be the system of law constituting ‘the centerof 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 NovaScotia, respectively. They agreed bills of lading in Newfoundland for carriageof a cargo of herrings by sea from that province to New York. Under theNewfoundland Carriage of Goods by Sea Act, every such bill of ladingissued there was required to have a clause subjecting it to the Hague Rules.These were maritime rules laid down in an international convention towhich Newfoundland was a party and which sought to harmoniseconflicting maritime laws. Inadvertently, an old form bill was used thatdid not have the clause statutorily required and which expressly stated thatthe bill was ‘governed by English law’.

Two days after sailing the ship ran into bad weather and made for aport of refuge but was ultimately lost. The herrings were unloaded,reconditioned, and forwarded by another ship to New York, where theappellants took delivery of them in a damaged condition. In an action bythe appellants in Nova Scotia the respondent pleaded the bills of lading or,


alternatively, the Hague Rules, as exempting it from liability. The appellantsalleged that the bills were illegal, null and void under Newfoundland lawin that they were contrary to the Act of 1932 and therefore that therespondents could not take advantage of any of the exemptions from liabilityprovided by the Rules or by the bills of lading.

The appellant failed in the Supreme Court and the appeal to the PrivyCouncil was dismissed. The respondents were not able to rely on the HagueRules109 but succeeded by reason of the terms in the bills of lading, whichwere valid under English law. Delivering the judgment of the Board, LordWright held the rights and parties governed by English law, because thiswas 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 thelaw of the contract, it is difficult to see what qualifications are possible, providedthe intention expressed is bona fide and legal, and provided there is no reason foravoiding their choice on grounds of public policy.’110

Following this lead, the Supreme Court of Jamaica held in NationalChemsearch Corps v Davidson111 that:

The law of this country is committed to the principle of the unfettered freedom ofcontract... Where the parties to a contract have therein expressed an intentionthat a particular legal system shall govern their rights and obligations, that intentionalmost invariably must prevail.

This procedure for ascertainment of the proper law of the contract wasaccepted for the purpose of service out in Amin Rasheed Shipping v KuwaitInsurance Company.112 The parties had made no express choice of thegoverning law, but their insurance policy was based on the Lloyd’s SGpolicy as set out in the Schedule to the English Marine Insurance Act1906. It incorporated in the body of the policy the usual f c and s (freefrom capture and seizure) clause from what at that time was the ‘standardform of English Marine Policy’. However the policy had been issued inKuwait and claims were to be paid there. The policyholders sought tobring a claim against the Kuwaiti insurers in England by seeking leave toserve out, claiming that English law governed the policy.

The House of Lords held that the plaintiffs had brought their claimwithin the Order.113 According to Lord Diplock, the provisions of thepolicy ‘by necessary implication point ineluctably to the conclusion thatthe intention of the parties was that their mutual rights and obligations

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under it should be determined in accordance with the English law of marineinsurance.’114 Whilst arriving at the same destination, Lord Wilberforcetook a different route. He accepted that the terms of the RSC Order 11, inreferring to the governing law in express terms or ‘by implication’ coveredtwo situations. The parties’ mutual intention could be inferred and, whereno such inference was possible, recourse was necessitated to identificationof the system of law with which the contract had its closest and most realconnection. He differed from Lord Diplock (with whom the majority agreed)because, ‘although the two situations merge into each other’, he regardedthe 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 effectthat the High Court shall have jurisdiction to hear and determine anyaction in respect of the contract.116 To allow service out is merely to holdthe parties to the agreement they have made. Indeed, there is a good casefor arguing that the local jurisdiction clause constitutes submission andtherefore obviates or at least reduces the burden of proving the case forobtaining of leave to serve out.

The Chaparral117 provides a good illustration of service pursuant to alocal jurisdiction clause. The parties had contracted for towage of thedefendants’ oilrig from Venice to Ravenna provided that any dispute arisinghad to be treated before the London Court of Justice, which was taken tomean the English High Court. The tow was forced to take refuge in Floridaand the defendants started proceedings in Tampa District Court for damagescontending that the tug was not seaworthy to undertake the voyage.Subsequently the plaintiffs commenced proceedings in the English HighCourt claiming damages against the defendants on the ground that theoilrig being towed was not in a seaworthy condition. It was held that theplaintiffs had been properly given leave to serve the defendants out of thejurisdiction and that action could proceed in England. It was the policy ofthe court to hold parties to the bargain they had made.

Torts

The forum is empowered to give leave to serve process outside the jurisdictionin certain tort actions. Under the traditional formulation, leave can begranted if the action begun by writ is founded on a tort committed withinthe jurisdiction.118 Immediately, a definitional problem arises. When isthe tort committed within the jurisdiction? There are at least three theoriesfor identification of the locus delicti commissi, all discussed in the leading


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. Itwas in no sense resident in New South Wales. One of its products was adrug called Distival which was used as a sedative, and the principal ingredientof which was thalidomide. Distival was sold in tablet form and the tabletswere manufactured and packaged in England. The second defendants, anAustralian company, distributed it in New South Wales. The plaintiffbrought an action in negligence. She claimed that her mother had takenDistival during her pregnancy; that the drug thalidomide had a harmfuleffect on the foetus of an unborn child during the first three months ofpregnancy; and that as a result she had been born malformed and withdefective vision. Leave was sought and obtained to serve the writ on thefirst defendant outside the jurisdiction on the basis that the cause of actionhad 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 wholecause of action, so that every part of it, every ingredient of it, must haveoccurred within the jurisdiction. Delivering the judgement of the Board,Lord Pearson ruled this out as being too restrictive for the needs of moderntimes. A defendant could have no major grievance if sued in the country inwhich most of the ingredients of the cause of action against him tookplace.

A second theory was also considered unacceptable. This was the ‘lastact’ concept under which it was necessary and sufficient that the lastingredient of the cause of action, the event that completes a cause of actionand brings it into being, occurred within the jurisdiction. Their Lordshipsthought it wrong in principle to invariably ascribe decisive importance tothe place where the last act took place. Such a place could be highly fortuitousand therefore the degree of connection between the tort and the countrymight not be such as to justify or make appropriate trial in the country’scourts. This factor should therefore not be the sole determinant ofjurisdiction.

On the other hand, in respect of specific torts, the place of the last actcould be critical. This is particularly so in relation to defamation, whetherslander or libel. This is because the last act of the tort of defamation consists

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of injury to the plaintiff ’s reputation and is therefore likely that the courtsof the country in which publication occurred will have sufficient connectionto justify assumption of jurisdiction. So, in Bata v Bata120 defamatory lettershad been written by the defendant in Zurich, Switzerland, and posted tocertain addresses in England. It was held that publication constituted thetort of libel and as this had taken place in England, the tort had beencommitted there. The English courts could therefore allow service out.

Similarly, in Pindling v National Broadcasting Corporation121 thedefendants had made several broadcasts in the course of which imputationswere cast on Sir Lynden Pindling. He was accused of taking bribes fromdrug smugglers, using his position as Prime Minister of The Bahamas toprotect drug smugglers, and of being dishonest, corrupt and guilty ofcriminal acts. The broadcasts originated in the United States and werefurther broadcast in Ontario. Sir Lynden was of the view that the broadcastsdefamed him and he sought to sue NBC in Ontario.122 He was allowed toserve the defendants outside of the Ontario jurisdiction because the allegedlydefamatory words spoken in the United States and heard in Ontarioconstituted a tort committed within Ontario.

The third theory was that the act on the part of the defendant thatgives the plaintiff his cause of complaint must have occurred within thejurisdiction. This was considered to be ‘inherently reasonable’ but doesnot provide a simple answer in all cases. The Privy Council recognised thatthe place of the wrongful act may equally be, for example, the countrywhere the defendant was negligent, or the country in which the defendant’snegligence caused the plaintiff to be hurt. The Board eschewed the rigidapproach adopted in some cases in fixing the place of the wrongful act asthe country in which the negligent act took place and not where the injuryoccurred.123 Instead, it preferred the following more flexible approach: ‘whenthe tort is complete, look back over the series of events constituting it and ask thequestion: where in substance did this cause of action arise?’124 On the facts itwas found that that place was New South Wales and that therefore leavecould be given to serve out:

In the present case on the assumptions made for the purpose of testing jurisdictionthere was negligence by the first defendant in New South Wales causing injury tothe plaintiff in New South Wales. So far as appears, the goods were not defectiveor incorrectly manufactured. The negligence was in failure to give a warning thatthe goods would be dangerous if taken by an expectant mother in the first threemonths of pregnancy. That warning might have been given by putting a warningnotice on each package as it was made up in England. It could also have been givenby communication to persons in New South Wales - the medical practitioners, the


wholesale and retail chemists, patients and purchasers. The plaintiff is entitled tocomplain of the lack of such communication in New South Wales as negligence bythe first defendant in New South Wales causing injury to the plaintiff there. Thatis the act (which must include omission) on the part of the first defendant whichhas given the plaintiff cause of complaint in law. That cause of action arose withinthe jurisdiction.125

b) An important objective: Protection of Citizens and Residents

In deciding whether to allow service out it would be well to remember thatan important objective of Order 11 is to facilitate trial in the forum inrelation to litigation closely connected therewith but in respect of whichjurisdiction cannot otherwise be established. An interesting gloss was placedupon this perspective in the Canadian case of Moran v Pyle.126 Havingaccepted the Privy Council preference for flexibility rather than restrictiveor draconian rules in identification of the place of the tort, the SupremeCourt of Canada placed this test within the context of the protection ofnationals and residents from the tortuous actions of foreigners. It said:

Applying this test to a case of careless manufacture, the following rule can beformulated: where a foreign defendant carelessly manufactures a product in aforeign jurisdiction which enters into the normal channels of trade and he knowsor ought to know that as a result of his carelessness a consumer may well be injuredand it is reasonably foreseeable that the product would be used or consumed wherethe plaintiff used or consumed it, then the forum in which the plaintiff suffereddamage is entitled to exercise judicial jurisdiction over that foreign defendant. Thisrule recognises the important interest a State has in injuries suffered by personswithin its territory.127

This is brought home by the newer formulations followed in Jamaicaand the Eastern Caribbean. Adopting the modern English position, thesecountries allow a claim form to be served out of the jurisdiction if a claimin tort is made and the act causing the damage was committed within thejurisdiction or the damage sustained was sustained within the jurisdiction.128 There is therefore no longer the need to define the ‘place of the tort’ inthese territories.

c) Choice of law in tort

Moran v Pyle also raises, tantalisingly, the relevance of the place where thetort was committed, for jurisdictional as contrasted with choice of lawpurposes. There can be little doubt that the lex loci deliciti commissii is thesingle most dominant determinant of the choice of law in torts. In fact, inEurope at present the choice of law in torts is the law of the place where the

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tort was committed, and this was the position in the United States untilrecently.129

In traditional Anglo-Caribbean law, the place of the tort supplied oneof the two leges causae. The current formulation is that stated by LordSlynn in Red Sea Insurance Co Ltd v Bouygues SA.130 As a general rule, theact complained of must have been a tort and actionable as such accordingto the law of the Caribbean forum and according to the law of the foreigncountry where it was done. But a particular issue may be governed by thelaw of the country which, with respect to that issue, has the most significantrelationship with the occurrence and the parties.

Both the general rule and the exception, then, place heavy emphasisupon the place where the tort was committed or the damage was sustained.Caribbean legislative reform of choice of law in the area of transnationalcauses of action for product liability similarly stresses the importance ofthe locus delicti.131 Legislative reform in England has made the general rulefor the choice of law in torts, ‘the law of the country in which the eventsconstituting the tort or delict in question occur.’132

What remains of interest is the juxtaposition in Moran v Pyle of theplace of the tort concept for choice of law as opposed to choice of jurisdictionpurposes. In delivering the judgement of the Supreme Court Dickson Jrelieved 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 distinguishbetween jurisdiction and choice of law.’ He went on to say that ‘the rulesfor determining situs for jurisdictional purposes cannot be those which areused to identify the legal system under which the rights and liabilities ofthe parties fall to be determined.’133 It is unfortunate that the learnedjudge did not develop this idea further. Whether it is prudent or evenfeasible to maintain a distinction between the place of the tort orjurisdictional as opposed to governing law purposes seems an appropriatecandidate for discussion.

Obstacle of Discretion

Bias Against Service Out

Establishment of the fact that the case falls within at least one of thecategories of Rules of Order 11 or of Civil Procedure overcomes the firsthurdle. There is still the second hurdle to surmount. The plaintiff mustprove 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


must demonstrate to the satisfaction of the court that the case is anappropriate one for leave to be granted.

In deciding whether to exercise its discretion to allow applicant serviceout of the jurisdiction, the court starts with a bias against the application.Service out is extraordinary, exorbitant, and possibly contrary to comity. Itis extraordinary because normally, the exercise of jurisdiction is based uponthe allegiance owed by the defendant to the court. Presence within theterritorial limits of the court signifies tacit acceptance of jurisdiction.Submission indicates tacit or express acceptance. But if the defendant isnot present and has not submitted then, prima facie, the defendant owesno allegiance to the court. It is therefore extraordinary for the court toexercise jurisdiction over such a person. In Bahamas International TrustCompany Limited v Lisk Wyckoff 134 it was accepted that the jurisdictionexercised under Order 11 rule 1 must be exercised with caution:

But of course it becomes a very serious question, and ought always to be considereda very serious question … whether the Court ought to put a foreigner, who owesno allegiance here, to the inconvenience and annoyance of being brought to contesthis rights in this country. I for one say, most distinctly, that I think this Court oughtto be exceedingly careful before it allows a writ to be served out of the jurisdiction.

Service out is exorbitant because, whilst Caribbean and English courtswill in cases they consider appropriate, base their jurisdiction on allowingservice ex juris, these courts will not recognise such jurisdiction in a foreigncourt. In Re Dulles’ Settlement Trusts135 Denning LJ suggested that giventhat the rules under which the Manx court assumed jurisdiction correspondwith the English rules for service out of the jurisdiction contained in RSCOrd 11 he did not doubt that the jurisdiction of the Manx court would berecognised in England.136 This is clearly incorrect. There are many cases inwhich the court has held that the foreign courts lack competence to assumeex juris jurisdiction.137 Logically this rule applies between Caribbeancountries and England, as it does among the Caribbean countries themselves.

Leave to serve out might run counter to the rules of comity becauseservice of the court’s process in a foreign country, particularly a foreignstate, represents a infringement of sovereignty, however insubstantial. Thiswas particularly so in the old days when the original writ was served. Toameliorate the problem the current practice is to serve a copy rather thanthe original court document.

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Good Faith

The court requires that the plaintiff must have acted with utmost goodfaith. This demands that full and frank disclosure be made of all relevantfacts. This is particularly important in circumstances where the applicationis made ex parte and the other side does not have the opportunity ofpresenting opposing argument. Thus, service out will be denied or setaside in the face of sharp practice. This is so even if the defendant hassubmitted to jurisdiction by virtue of entering an unconditional appearanceupon service of the writ.

Consider, for example, the case of Owens Bank Ltd v Cogettri SA138 TheHigh Court of Justice of St. Vincent and the Grenadines reiterated thatservice of a writ out of the jurisdiction is an interference with the exclusivejurisdiction of the sovereign power of the foreign state. As a matter ofinternational comity such service should not be allowed unless it is clearlywithin both the letter and the spirit of the local statutory rules. The Courtfound no indications from the pleadings that the contract had been madewithin the jurisdiction or that the tort alleged was a cause of actioncommitted within the jurisdiction. In fact, it seemed clear that the tortswere allegedly committed in France. There had not been full and fairdisclosure on the part of the plaintiffs, the statement of claim was misleadingand 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 provethat the court is the convenient forum for hearing the dispute. The forumconveniens is that court with which the case is most closely connected sothat it becomes most convenient or appropriate for it to adjudicate uponthe claim. Accordingly there are a large number of considerations to betaken into account. These include whether the evidence and witnesses arelocated locally, whether the governing law is the lex fori or a foreign law,whether a foreign court also has jurisdiction to hear the case, whetherproceedings are pending in that foreign court. The court will also considerthe real object of the proceedings - is it to vindicate the plaintiff ’s legalrights and responsibilities or merely to embarrass or humiliate thedefendant?

There are several cases in which the forum having established that ithad jurisdiction to serve out, refused leave on the basis that the case wasnot a proper one for ex juris jurisdiction. Amin Rasheed v Kuwait InsuranceCompany139 decided that English law governed the insurance contract but


that leave should be refused. The central issue in the litigation was whetherthe insured vessel had been engaged in smuggling; this was a question offact and both Kuwait and England were on the international air routes andreadily accessible to the witnesses. English judges would apply Englishlaw as the proper law of the policy but so too would the Kuwaiti judgesunder their private international law rules. No inference could be madefrom the unsupported allegation that the civil law practice and procedurefollowed in Kuwait was inferior to and less efficient than the English commonlaw method. The case was more or less evenly balanced between trial inEngland and Kuwait; it therefore followed that the plaintiff had notdischarged 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 tradingabroad, insured their precious stones with the English plaintiffs, LloydsUnderwriters. The insurance policy was negotiated and executed in London,but provided that all disputes arising out of it should be ‘exclusively subjectto Belgian jurisdiction’ for decision according to Belgian law. The plaintiffsalleged that the defendants were in the habit of illegally smugglingdiamonds into Italy and sought to bring an action against them in Englandfor a declaration that the policy was void for illegality or voidable for non-disclosure. The plaintiffs sought leave to serve the writ outside thejurisdiction on the ground that the contract had been made within thejurisdiction.

The Court of Appeal held that leave should be refused. Non-disclosureonly made the contract void from the moment of avoidance and illegalityonly made it unenforceable. It followed that the contract was a validagreement at the time of its formation. Under the terms of that agreementthe plaintiffs had consented to have all litigation affecting it, tried in Belgiumand 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 typesof transnational litigation. There are, however three categories of cases inwhich competence may be limited by the subject matter of the dispute. ACaribbean court has no power to adjudicate upon a cause of action that isbased upon a foreign public law asserting the sovereign power; that fallsunder the Mocambique rule; or that is ‘local’ to a foreign country. A pointof critical importance is that lack of subject matter jurisdiction cannot be

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cured by the conferral of consent by the parties. Such jurisdiction assumedin 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 foreignpublic laws that assert the sovereignty of a foreign power. Such laws arenever enforced locally and neither are any rights acquired under them.Typically, foreign laws pertain to the imposition of a penalty, whether inthe form of a tax or otherwise. Sanctis v Bowen141 involved the submissionby the defendant to the jurisdiction of the Grenada High Court. But theCourt itself raised the question of competence, holding that despite thedefendant’s concession, it had no competence over the subject matter ofthe dispute. This was because the claim was in the nature of an action forthe recovery of a penalty or tax for the protection of foreign revenue.Detailed consideration of the exclusion of actions based upon foreign publiclaw is reserved for treatment elsewhere in this book.142

The Mocambique Rule

In the leading case of British South Africa Co. v Companhia de Mocambique143

an action was brought in England by the plaintiff, a Portuguese company,against the defendant, an English company for damages for trespass to itsland in South Africa. The defendant disputed the plaintiff ’s right topossession of the land and the House of Lords held that it had no jurisdictionto hear the suit. Thus the Mocambique rule was born, i.e., that the forumhas no competence to determine title to or right to possess foreign land orother immovable property situated abroad. Nor is the court competent todetermine damages for trespass to such property.144

Rationale for the Rule

No positive reason was given for the rule. Lord Hershell, who gave theleading judgment, did say that it was not based upon technical but rathersubstantial grounds. However he did not go on to specify what thosesubstantial grounds were. Certainly it would be hard to argue that thelimitation was required under public international law. Exclusivity ofterritorial sovereignty is an indispensable criterion of statehood but thatrequirement does not prevent foreign decisions as to private ownership ofland situated within the state. What is required is state control of its territoryand such control is not necessarily conditioned by foreign determinationof ownership.


Again, the judgment as to ownership and allied rights may well dependfor effectiveness upon the foreign law and judiciary but this is the case inrelation to a large number of transnational disputes. In economic terms,adjudication upon contractual and tortuous disputes could be significantlymore important than determination of the rights in respect of a smallparcel of land. In any event, the likelihood of the foreign rejection ofjudgment is considerably lessened by the application of foreign law, as isattempted by use of the renvoi doctrine.

Moreover, it is widely acknowledged that the invariable application ofthe rule could lead to injustice. Consider the case of a person who commitsa grave trespass to land located in a foreign country. If the trespasser was tobe found in the Caribbean that person could not be sued in our courts. Ifthe foreign country adopted the same rules concerning personal jurisdictionthe 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 tothe rule. These exceptions allow assumption of jurisdiction wheredetermination of the issue concerning foreign land or immovable propertyis incidental to the resolution of the main dispute before the court, andwhere there exists a personal obligation between the parties.

It is important to distinguish between the scope of the rule and theexceptions to the rule. If the dispute falls outside the scope of the rule thenthe court is not concerned with subject-matter jurisdiction. It may assumecompetence on the basis of personal jurisdiction. There is no need to searchfor an exception to the rule. This was the case in St. Pierre v South AmericanStores (Gath & Chaves) Ltd,146 involving a personal action for rent of premisesin a foreign country. Also, if the dispute falls outside the rule then the lexsitus has no special dominance. Thus if the issue before the court is properlyclassified as one of contract then it is resolved in accordance with the properlaw of the contract and not necessarily according to the law of the placewhere the land is situated.147

Determination incidental to dispute

The first exception was provided for in the Mocambique case itself. LordHerschell LC allowed that ‘it may become necessary incidentally toinvestigate and determine the title to foreign lands.’148 Where title to foreignland is merely ancillary to the main dispute, Caribbean courts may exercise

Jurisdiction 153

jurisdiction over the litigation. The court may have jurisdiction toadminister a trust or the estate of a deceased person that includes property(whether movables or immovables) situated locally. Adjudication mayproceed even if the property also includes immovables situated abroad.149

No contractual or fiduciary relationship need exist between the parties. InRe Ross150 the main issue before the English court was whether the will ofthe deceased leaving all her property to her niece was valid. The Courtdecided that it was even though part of the property devised by the willwas land situated in Italy.

The problem here is that resolution of the issue of ownership of theforeign land rarely constitutes a true incidental question in the privateinternational law sense of the term.151 Arguably, the existence of a trueincidental question should be a condition precedent for operation of theexception. Otherwise the exception could become little more than a draftingdevice used to circumvent the rule,152 with the consequential potential ofbringing the law into disrepute.

Enforcement of a personal obligation

The second exception is dependent upon the existence of a personalobligation between the parties. A court of equity will enforce personalobligations binding on the parties even if this means compelling them todeal with foreign lands in a particular way. This was established in Penn vLord Baltimore,153 involving a suit in England to enforce a contract settlingthe boundaries between two American provinces. Lord Hardwicke agreedthat 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 plaintiffand the Court, in exercise of its in personam jurisdiction, could compelhim to deal with the foreign land in fulfillment of that obligation. Such anorder acted upon the party to whom it was addressed and did not concernthe foreign land per se.

This exception was neither confirmed nor contradicted in Mocambiquebut has been acted upon repeatedly since then. In Razelos v Razelos154 ahusband who had fraudulently purchased land in Greece with his wife’smoney was ordered by an English court to convey the land to her. It wasemphasised that competence could be exercised because the court possessedin personam jurisdiction, and because the order would not be ineffective.The latter point asserts the maxim that equity will not act in vain. If thesitus would prohibit the enforcement of the decree then it is unlikely thatthe decree would be made in the first place.


Another condition for operation of the exception is that the personalobligation binding the defendant must have run to the plaintiff. Privity ofobligation 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 byleasing foreign property in the name of his friend. Such conduct wassufficient to establish the necessary obligation between the friend and thejudgment creditor.155

‘Local’ actions

Origin in the Mocambique Rule

For a long time it was thought that the Mocambique rule was limited toland and interests in land. However, in recent times it has been extendedto include actions based upon foreign intellectual property and copyrightlaw. Indeed these were described as examples of a still wider category, thatis, local actions. Whilst the boundaries are not entirely settled, the premiseappears to be that the forum has no competence over any cause of actionthat is based upon any foreign law giving purely local rights.

The leading case is Tyburn Productions Ltd. v Conan Doyle.156 The plaintiffcompany was a film producer and it made a television film featuring thefamous detectives Sherlock Holmes and Dr. Watson. These characters hadbeen created by Sir Arthur Conan Doyle and copyright in his works residedin his daughter Lady Bromet. Her copyright in the United Kingdom expiredin 1980 but still existed in the United States. The plaintiff wanted todistribute the film in the United States but was fearful that Lady Brometwould assert her copyright entitlements there.

The plaintiff sought a declaration from the English courts that she wasnot entitled to copyright in the United States but the court held that itcould not decide the action. The rule that English courts had no jurisdictionover decisions affecting foreign lands extended to actions concerning rightsunder foreign intellectual property laws. Such actions were of a local andnot a transitory nature. They were concerned to confer rights uponindividuals within the bounds of the state and for that reason were notjusticiable in the English courts.

Critique of the Tyburn Extension

The Tyburn Production case is now established law but remains a surprisingdecision for several reasons. Commentators were generally critical of theMocambique 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 inland. A third reason was that Parliament in England had itself intervenedto limit the scope of the rule. Jurisdiction was mandated in respect ofactions for trespass to foreign land where no question of ownership was indispute.157

This is not to say that there are no ameliorating considerations. Theexceptions to the rule regarding adjudication of foreign land probably applyto this category of local actions although there is yet to be a definitivejudicial decision to this effect. There has also been the important suggestionthat the rule does not apply to disputes where the right of ownership inthe foreign intellectual property is not in dispute.158

The English Court of Appeal has affirmed the rule and refused tomake a declaration regarding whether rights under the copyright, unfaircompetition or trade mark laws of a foreign state would be infringed bywhat one of the parties proposed to do. But that decision is of little or noassistance in deciding whether an action for alleged infringement of a foreigncopyright by acts done abroad is justiciable in the forum, when the existenceand 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 variousAdmiralty Act (note especially the English Admiralty Act of 1861) ‘is so wide that thecourt is given the power of arrest even in actions in personam’: International Sea FoodsLtd. v Gemini One. Unreported, High Court, Barbados, dated January 1, 1976(Ward J, esp. at 3).

3. See e.g., Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7threvised edn., Routledge, 1997), Chap 8. See too Holland v Lampen-Wolf [2000] 1WLR 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) 12TLR 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,


which requires notification to the Registrar of the address of the registered office ofthe company but does not appear to specify that that office must be located inBarbados.

10. Companies Act (1973 Rev.), (Jamaica), s.370.

11. Companies Act 1982-54 (Barbados), s. 414 (a); Companies Act 1995 (No. 35 of1995), (Trinidad and Tobago), s. 491(a).

12. Companies Act 1982-54 (Barbados), s. 414 (b); Companies Act 1995 (No. 35 of1995), (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, at718 per Buckley LJ; Attorney-General v Bailey (Malta) Ltd., [1963] 1 Lloyd’s Rep.617.

15. Unreported Judgement, No. 61 of 1998, Supreme Court of Barbados, dated March26, 1998.

16. This was case on foreign judgment where the Barbados High Court was decidingwhether the defendant was present in New York. There was no suggestion that thesame reasoning would not apply had the facts been switched around to make live theissue 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 acompany.

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 Lloyd’s 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), at1074, 995-1002.

27. Foreign judgments are normally enforced on the basis of international agreementembodying the principle of reciprocity. This means that if the assets are located in acountry with which the forum has no diplomatic or other relevant connections, andin respect of which there is no reciprocal agreement, then the property may not be atrisk. In such circumstances, the best advice may be to completely ignore the forum’sproceedings.

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 protestjurisdiction, 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 theproceedings.

35. Ibid., at 637.

36. Ibid., at 639. Whether this reasoning is true in light of the points regarding theprotection of one’s 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 ofhaving 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 inEnglish 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.


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), (Trinidadand 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 ER213n, [1975] 2 Lloyd’s 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) 1Offshore Financial Law Reports 145. It was held in this case that a Mareva injunctionshould be discharged because there was no substantive cause of action in existencein Bermuda when the injunction was issued, and hence, there was no jurisdiction toissue the injunction.

74. Connelly v South Pointe Capital Corp [1998] CILR 243.

75. Coney Island and Caribbean Amusements v Good times Shows Inc, Unreported, HighCourt 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 thething to be done or not done ‘within the jurisdiction’ is given the most generous ofinterpretation – to include, for example, the technical obligation arising under theorder of the court itself; an argument made plausible by reference to the obligationaccruing 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), (Trinidadand 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 broughtagainst three defendants jointly, two of whom were resident in the forum and onein 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 ofAppeal, 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 ServicesLtd [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 importantfor other than purely jurisdiction reasons: it may be significant for example, indeciding upon the terms that have been incorporated into the contract, and upon theproper law of the contract.

95. Entores v Miles Far East Corporation, [1955] 2 QB 327; [1955] 2 WLR 48; BrinkibonLtd 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 Einstein’s theory of relativity there is no such thing as ‘instantaneouscommunications in nature’.


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 AC34, [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 importantimplications 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 & Whiteley’s 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 InternationalLaw: 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 bysuggesting that as reasonable people, had the parties thought about the matter theywould 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 goodsfrom 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 shouldexercise 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 thecontract, an implied choice of English as opposed to Kuwait law. But he did find thatEnglish law was the proper law on the basis of its stronger connections with thecontract.

116. RSC 1982, O. 11, R (2) (1) (m), Barbados); RSC 1975, O. 11 R (2) (m), (Trinidadand Tobago); CPR 2002, R 7.3 (3), (a), (v), (Jamaica); CPR 2000, R 7.3 (3), (b), (i),(ECSC).

117. [1968] 2 Lloyd’s Rep. 158.

Jurisdiction 161

118. RSC 1982, O. 11, R (2) (1) (h), (Barbados); RSC 1975, O. 11 R (2) (1) (h) Trinidadand Tobago.

119. [1971] AC 458.

120. [1948] WN 366.

121. (1985) 14 DLR (4th) 391.

122. The Prime Minister had sought to sue NBC in The Bahamas but NBC chose not toappear or otherwise submit to the jurisdiction - there was no information that thebroadcasts had been heard in The Bahamas.

123. This was the approach in George Monro Ltd., v American Cyanamid and ChemicalCorpn, [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 placeof the tort is now widely accepted. See e.g., Metall and Rohstoff AG v DonaldsonLufkin & Jenrette Inc [1990] 1 QB 391; Arab Monetary Fund v Hashim [1996] 1Lloyd’s Rep 589 at 597; Lubbe v Cape plc [1993] IL Pr 113 at 123, CA; Connelly vRTZ 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). Seegenerally, 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.


143. [1893] AC 602; 63 LJQB 70. See also Whitaker v Forbes (1875) Vol 1 CPD 51, 33LT 582, an earlier decision that had suggested an action of debt brought for arrearsof a rent-charge upon lands in Australia prior to the commencement of the JudicatureAct, may, possibly be entertained after the commencement of the Act, which

provides that for the future there shall be no distinction between local andpersonal 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 of1988, dated March 20, 1997, although this cannot be said to have been done in away which fashions a Caribbean contribution to private international law. SeeWinston 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] AC52.

148. [1896] AC 602, at 626.

149. JD McClean, Morris: The Conflict of Laws, (4th edn. Sweet & Maxwell, 1993), at308. See also, Nelson v Bridport (1846) 8 Beav 547; Hope v Carnegie (1866) LR 1Ch. 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 Conflictof Laws, (4th edn., Sweet & Maxwell, 1993), at 424-427.

152. Cases such as Re Duke of Wellington [1948] Ch 118 raise the precise question whetherdetermination of title to the foreign land was a mere incident of the Englishproceedings.

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 thuseffectively 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 foreignimmovables 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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