Suing someone in England from Scotland

[Dave Baker]

Thanks everyone for their help and advice in the thread "Jurisdiction of
claim". I'm now preparing to sue the removal firm who failed to deliver my
goods from England (where I lived when the contract originated) to Scotland
where I now live. My understanding is that I have to use the English legal
system as that was specified in the contract and that as a private
individual suing a ltd company the case will be heard in the English court
closest to me i.e. the northernmost county court in England.

Is it any more complex than originating a claim in that court with my
Scottish address as the address for service and letting things take their
course?

Thanks

Dave Baker

[Chris R]

>
>
> "Anthony R. Gold" wrote in message
> news:hosra994d86asftqe...@4ax.com...

> Check the wording of the contract. If it says you must use an English
> court
> then you would be bound to do that. But if it just says that the contract
> is
> bound by the laws of England then you could ask your local Scottish court
> whether they will accept an action that must be decided under English law.
> If they will accept it then you should seek professional help in
> explaining
> to the court any material differences between English and Scottish law in
> the issues that either you or the defendant may raise in the claim or the
> defence of the action.

We've done that discussion. We concluded that the Scottish court probably
does not have jurisdiction, certainly that it is safer to sue in England.

To the OP: I don't know if you need to give an address for service in
England either to issue proceedings, or to use Money Claim Online. I very
much doubt whether you can get an automatic transfer the nearest court over
the border.
--
Chris R

========legalstuff========
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======end legalstuff======

[Stuart Bronstein]

August West <aug...@kororaa.com> wrote:
> Anthony R. Gold wrote:
>>
>> We have? European law (Council Regulation (EC) No 44/2001)
>> tends to give jurisdiction to the courts for the place of
>> performance of the obligation in question, i.e. the delivery of
>> Dave Barker's goods in Scotland.
>
> Except where explicit contractual agreement exists otherwise
> (A14). Although this excepts insurance, consumer or employment
> contracts.

I'd think that in a contract between a business and a consumer, a
choice of forum clause that would make it inconvenient for the
consumer to sue would be an unfair and unenforceable provision.
Apparently that's not the case, though.

--
Stu
http://DownToEarthLawyer.com

[Chris R]

>
>
> "Stuart Bronstein" wrote in message
> news:XnsA297BA45CF7D4s...@130.133.4.11...

Normally the European rules give jurisdiction to the country of habitual
residence of the consumer, but on the facts of this particular case it
appeared this was not (or might not be) the case. I can't see a choice of
jurisdiction clause that gave jurisdiction to the home country of the trader
being struck down under the UTCCR - it my be different if you specified
Finland or Cyprus if you were based in Romford.

[Francis Davey]

Le lundi 16 décembre 2013 02:30:03 UTC, Stuart Bronstein a écrit :
>
>
> I'd think that in a contract between a business and a consumer, a
>
> choice of forum clause that would make it inconvenient for the
>
> consumer to sue would be an unfair and unenforceable provision.
>
> Apparently that's not the case, though.
>

The Rome I Regulation tries to strike a reasonable balance here. If the special consumer jurisdiction applies (and it won't always) then a choice of forum clause can work in limited circumstances. One example would be where consumer and trader are both domiciled in the same jurisdiction and choose courts of that jurisdiction (this is Article 17(3)).

The reason there is this sort of exception is that a small trader could also suffer prejudice if it innocently enters into what it thinks is a purely local transaction with a consumer and then suddenly finds itself before the courts of a distant country with which it has no connection and never had any connection.

*However* this is not what the OP is asking. We have done this to death already in an earlier thread. So, for the OP's benefit: the civil procedure rules (which I urge you to read - complex though they are, see http://www.justice.gov.uk/courts/procedure-rules/civil and a very old overview by me http://www.francisdavey.co.uk/2009/06/civil-procedure-rules.html with broken links) require an address for service for the claimant, but there is no problem with that being an address in the UK.

See, eg:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.23

Money Claim Online should be fine as far as a claimant in the UK goes, see:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e#4.1

Having said that, I have had trouble with the courts on a couple of occasions getting this wrong. I once attended court on a possession hearing where we discovered that the claim form which we had filed for the court to serve had been endorsed with the words "Claimant out of the United Kingdom, Solicitors to serve" and then left on file without any notification to us.

Francis

[Chris R]

>
>
> "Francis Davey" wrote in message
> news:3046d1ff-0fab-4e45...@googlegroups.com...
>
> Le lundi 16 d�cembre 2013 02:30:03 UTC, Stuart Bronstein a �crit :
> >
>
> >
>
> The Rome I Regulation tries to strike a reasonable balance here...

Brussels Regulation, though strictly it does not apply as between England
and Scotland, being in the same Member State.

--
Chris R

[Francis Davey]

Le lundi 16 décembre 2013 10:35:05 UTC, Chris R a écrit :
>
> Brussels Regulation, though strictly it does not apply as between England
>
> and Scotland, being in the same Member State.
>

Yes, sorry, "Rome" and "Brussels" are just arbitrary EU based labels and so easily muddled in my mind. Alas we drifted onto general questions of consumer jurisdiction and Brussels I so I was really addressing Stu's question which had lost its context.

Because of course as between England and Scotland we look at the CJJA 1982 and in particular schedule 4, paragraph 9(c) of which mirrors article 17(3) I referred to. In other words the result is much the same - you can contract out in certain very confined circumstances out of fairness to the trader as well as the consumer.

See:

http://www.legislation.gov.uk/ukpga/1982/27/schedule/4

Francis

[Chris R]

>
>
> "August West" wrote in message news:87y53l1...@news2.kororaa.com...

> However, the Civil Jurisdiction and Judgements Act 1982 does much the
> same thing for interal conflicts of law.
>
Absolutely, yes, I was just pointing out the minor error in the reference.
We went through all this in the original thread.
--
Chris R

[Chris R]

>
>
> "August West" wrote in message news:87txe90...@news2.kororaa.com...

> I wish it was the only place I'd ever gone through it. Private
> International Law (as we call Conflict of Laws up here) was, by far, the
> hardest course I've ever subjected myself to. Getting my head around
> Renvoi, in particular, nearly drove me to drink. It did manage to spoil
> a nice weekend in Chester.
>
I'm afraid it was my favourite course at university. Dicey & Morris Rule OK.
But unencumbered by most of the European conventions in those days.
--
Chris R

[Francis Davey]

Le lundi 16 décembre 2013 12:45:02 UTC, August West a écrit :
>
> Oh, it was also one of my favourites (along with delict). It just hurt
>
> so much (the case lists were longer than some whole course notes!). And
>
> I did it as an extra, over and above my normal, required, workload, so
>
> it was all my own fault. We used Crawford and Carruthers (as it covers
>
> Scots law, and written by our lecturers), as well as the vast Cheshire,
>
> North & Fawcett, which runs to over 1500 pages! (and which Carruthers
>
> now co-edits).

Yes, I recommend Crawford and Carruthers. I teach on the internet law LLM at Strathclyde and there's a topic or two to do on PIL/IPL/CL. Many of the students are interested in law beyond Scotland (most aren't Scots lawyers) but nevertheless Crawford and Carruthers is best in my view since it covers English and other common law questions very well for a student text book and of course you get the bonus of the Scots approach too.

Francis

[Francis Davey]

Le lundi 16 décembre 2013 14:45:02 UTC, August West a écrit :
>
> Ah, one of Lillian's little elves! I have to confess here that I'm
>
> seriously considering that LLM, taken at distance.

Yes, we know each other via the Open Rights Group - campaigning for sanity in digital rights etc. I taught the e-commerce module this year and also came up to do a guest seminar on international private law a few weeks ago. I don't often get a chance to come to Glasgow on business so it was very welcome.

Francis

[Dave Baker]

Many thanks to the collective once again. Looks like I can therefore just
use a Scottish address to file a claim in any English court unless I've
misunderstood the advice given.
--
Dave Baker