The traditional English rules

Abstract

Introduction In this chapter, we consider the basic common-law rules of jurisdiction as they developed in England over the centuries. Originally, these rules constituted a complete statement of the law of jurisdiction applied in actions in personam in England. As we have seen, however, they have now been replaced by European Union law where the defendant is domiciled in the United Kingdom or in another European State that is a member of the European Union or a Party to the Lugano Convention. As a result, the traditional rules of English law now apply only with regard to defendants domiciled in other countries, such as the United States, Canada, Australia, Japan, China, Russia, India, Brazil, etc. However, since these latter countries make up by far the greater part of the world, the traditional rules are still of considerable importance; in many ways, they are more important than the EU rules we considered in the last two chapters. Moreover, they still constitute the foundation of the law in common-law countries like Australia, Canada and the United States. Service of the claim form The original attitude of the common law might strike some people as strange: jurisdiction was regarded as entirely a matter of procedure. An action in the common law was (and is) begun with the service (delivery) on the defendant of a claim form – originally, a writ of summons (writ) – a document issued in the king's (or queen's) name, ordering (summoning) the defendant to attend court at a specified time and place. If the claim form was not served, the case could not proceed. So jurisdiction was regarded as being dependent – and wholly dependent – on the service of the claim form. If the claim form was properly served, the court had jurisdiction. If it was not, it did not. Though the issuing of a claim form is an official act performed by a court official, the service of a claim form was traditionally carried out by the party himself or by someone on his behalf. Traditionally, the claim form had to be given (or shown) personally to the defendant. If he could not be found, it could not be served. Subsequently, provision was made for service by an alternative method: with prior permission of the court, the claim form could be served by other means.