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An introduction to Scottish (and European) civil jurisdiction

This page was updated in May 2004 to reflect the expansion of the European Union.
Update August 2004: whole text of Civil Jurisdiction and Judgments Act as amended now online in this section.

The purpose of this page is to give an introduction to the basis on which the Scottish civil courts are prepared to hear civil cases with an international element. Other pages in this section deal with particular areas of law; commercial contracts, family law, personal injury claims, and defamation and intellectual property rights. Nothing here is designed to give full legal advice; that requires the instruction of a Scottish lawyer. Because Scottish jurisdiction follows European conventions, this section also serves as a reasonably accurate introductory guide to anyone asking whether the English or Estonian courts, for example, would have jurisdiction in a civil or commercial dispute.

The rules of thumb

  • The Scottish courts will accept jurisdiction if the defender/respondent lives or is based (is domiciled) in Scotland. There are very few exceptions to this general rule.
  • In most classes of cases, the Scottish courts will also accept jurisdiction if the background to the claim is in Scotland.
  • Scottish jurisdictional rules are practically identical to those of the other EU member states; a Spanish or Slovak lawyer will rarely go wrong by applying his or her national law in reverse.

The complex rules and their background

Until 1982 most of the law in this field was common law. When, that year, the Brussels Convention was enacted by the Civil Jurisdiction and Judgments Act 1982, although the Convention only provided for cases with a European but non-UK element, the opportunity was taken to put the general rules of jurisdiction in Scotland on a statutory basis. The Act was difficult enough then; in debate in the House of Lords, it was said 'the measure gives to the word "complexity" a new dimension… great stretches of it remain a complete mystery…' '…it should be accompanied by a Government health warning'; this by its supporters.

The complexities of the statute have grown. It has been extensively amended, importantly in March 2002 by the Civil Jurisdiction and Judgments Order 2001 which had as its principal purpose the enactment of a new scheme (Council Regulation 44/2001, usually referred to as 'the Brussels Regulation') for cases with an international element from thirteen (now twenty-three) European states but which also changed other rules. At the date of writing, there was still no up-to-date paper edition of the Act as amended; the Parliament House Book edition remains substantially misleading, having only partly incorporated the amendments made by the 2001 Order (amazingly, even the 2001 revision of schedule 4 and schedule 8, which are the most significant parts of the Act to most Scots lawyers, was not incorporated until late 2003). The Act is any case misleading, suggesting to the reader that it applies as it stands to all countries listed, when in fact the majority are, following the Brussels Regulation, subject to a modified version of the Act composed of a mixture of provisions of the Act itself and Schedule 1 of the 2001 Order. Nor is there any entirely up-to-date Scottish textbook, although Maher and Rodger on jurisdiction is expected in the next few months. The drafting quality of some recent EU jurisdiction provisions has not been high, Council Regulation 1347/2000 on family law jurisdiction being particularly ill thought through.

To complicate matters further, Article 20 of the 2003 Act of Accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia to the EU on 1 May 2004 provided that they became parties to the Brussels Regulation, directly amending the Brussels Regulation; see this page for the amendments. Commission Regulation (EC) No 1937/2004 made further minor amendments in November 2004. (Note that all links to the Brussels Regulation on this site are to the pre-November 2004 amended version).

In the absence of any accessible and up to date edition elsewhere, which may be remedied once the Statute Law Database is finally published online, the Act is published on this site as amended and with the 2001 Order alternative version: use drop-down menu at top of page or go direct to sections 1 to 3B; 4 to 5; 6 to 8; 9 to 15; 16 to 19, 20 to 23, 24 to 30; 31 to 40; 41 to 46; 47 to 55; schedules 1 to 3C (not fully reproduced); 4, 5, 6, 7, 8, and 9.

The Rules of the Court of Session were updated in terms of the Brussels Regulation, with effect from 1 March 2004, by the Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004, SSI 2004/52, paragraph 2 (14); the principal procedural provision is Rule 62.

As of May 2004, the civil and commercial codes under the 1982 Act were these; which applies depending broadly on which country a defender lives in/is based in (if more than one, start from the top) :

  • Brussels Regulation: Austria, Belgium, Finland, France, Germany, Gibraltar, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, and Sweden: from 1 May 2004 also Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
  • Lugano Convention: in reality, Norway, Iceland, Switzerland, and Liechtenstein (the pre-May 2004 members of the EU and Poland are also signatory, but this only affects their relations with these four; Estonia, Hungary, Malta, and the Czech Republic may accede in the near future; Australia has also contemplated accession):
  • Brussels Convention: in reality, now only Denmark (the other pre-May 2004 members of the EU are also signatory, but this only affects their relations with Denmark); this code will fall entirely out of use, except in transitional cases, in early 2006 when Denmark accedes to the Brussels Regulation:
  • Schedule 4: England, Wales, Northern Ireland (because, although the UK as a whole is signatory to the Brussels Regulation, this does not cover jurisdiction within the state):
  • Schedule 8: Scotland, rest of the world, itinerants. This Schedule also determines which court in Scotland has jurisdiction, and in particular the territorial jurisdiction of the local sheriff court; see also sections 20 to 22 of the Act.

Thus, in a case brought against Norwegian and Danish or American defenders, the Lugano Convention rules apply to determine whether there is jurisdiction in the UK; if the UK has jurisdiction, Schedule 8 tells you whether Scotland has jurisdiction and if so which court. If the case were only brought against Americans, only Schedule 8 would apply. If the case were brought against English and Scots, Schedule 4 tells you whether Scotland has jurisdiction and Schedule 8 tells you which court.

The Act does not cover some areas of law at all; the three European schemes were self-contained, while Schedule 5 and Schedule 9 respectively state the exclusions from Schedules 4 and 8. Notably :–

  • almost all family law issues are excluded, most being regulated by Council Regulation 2201/2003 (also known as 'Brussels IIbis'): see family law page:
  • insolvency is excluded; this is regulated by Council Regulation 1346/2000 and the Bankruptcy (Scotland) Act 1985 and Insolvency Act 1986 as amended:
  • administrative law issues are generally excluded; they are regulated either by particular statutory provisions or by common law. See the decision in Tehrani, 27 April 2004, which leaves many questions unanswered and is under appeal.
  • some intellectual property issues are excluded; thus for example Article 22 (4) and Schedule 5 paragraph 2 as to proceedings concerned with the registration or validity of patents, trade marks, or designs.
  • crime is excluded.

The Act does however apply to the vast mass of civil and commercial litigation.

It's not so bad

All five schemes are practically identical to each other in their effect. The main differences introduced by the Brussels Regulation from the Lugano and Brussels Conventions were:

The most important rules are:

  • Article 2; jurisdiction is conferred on the court of the defender's domicile (see articles 59 to 60 and sections 41 to 46 of the Act as to what 'domicile' means);
  • Articles 15 to 17; but in cases based on consumer contracts jurisdiction is normally in the court of the consumer's residence;
  • Article 5(1); otherwise in cases based on contract, there is also jurisdiction in the place of performance of the contractual obligation in question;
  • Article 5(3); in cases based on fault (tort, delict) there is also jurisdiction in the place the fault occurred, and also in any place where damage was suffered in direct consequence of that fault but only to the extent of the damage in that jurisdiction; Shevill v Presse Alliance 1995 2 AC 18 (ECJ);
  • Article 6; if there is more than one defender, it is enough if there is jurisdiction against one on domicile grounds;
  • Article 23; except in consumer and employment contracts, the parties are free to contract for jurisdiction;
  • Articles 27 to 30; if there is more than one competent court, all but the first in which action is raised must decline jurisdiction (this rule does not apply to schedules 4 and 8);
  • Article 31; in an emergency or for interim protective measures, any court has jurisdiction (see also sections 24(2) and 27 of the 1982 Act); and
  • Articles 33 to 56; Brussels/Lugano judgments are given effect and may not be reviewed as to their substance, so are immediately enforceable in all other Brussels/Lugano states.

Examples:

  • Pole incapacitated in road accident in Poland due to negligence of Scots driver and French navigator; can sue the pair in Scotland or France (domicile of one defender) or Poland (place of fault).
  • American eBay merchant fails to deliver goods to Scottish purchaser; can be sued in Scotland (probably under rule 2 (b) rather than 3 (1) (c) of Schedule 8) although whether a judgment would be enforceable in the US is a matter for US law.
  • Person shot by British troops anywhere; can sue in Scotland, England, or Northern Ireland (because the Crown is domiciled in all three).
  • Swedish sellers of goods to a Scottish firm deliver goods said to be unmerchantable in breach of contract due to the fault of the Norwegian shippers; the Scots could sue for damages in Scotland (place of performance of the obligation to deliver), Sweden or Norway (defenders domicile), while the Swedes could sue for the price in Scotland or (probably) Sweden (place of performance of the obligation to pay), and the first to get into a competent court would have determined the jurisdiction; a judgment in any of these courts would be enforceable in the other jurisdictions.

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