Govan Law Centre
updated 26-08-05 

 
I live in Scotland - can I be sued in England or Wales?  











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If you live in Scotland and enter into a consumer contract in England can you be sued in England?    The definition of a 'consumer contract' is set out in paragraph 3(1) below.

For example, you take out a loan or HP agreement that says it's governed by the laws of England, or you run up credit with a catalogue company which says it's governed by the laws of England.  You default on payments and receive a summons which says you are being sued in an English county court.   Is this lawful?

If you're domiciled in Scotland (e.g. Scotland is your usual home) and entered into the contract as a consumer then the action will be incompetent, upon the grounds that the County Court does not have legal jurisdiction to hear the case.  

You can only be sued in the Scottish Sheriff Court where you live.  The authority for this statement is paragraph 3(4) of schedule 8 to the Civil Jurisdiction & Judgments Act 1982.   Paragraph 3 is set forth below.

Even if you have contractually agreed to allow the English courts to decide your dispute (known as 'prorogation of jurisdiction')  it is clear that paragraph 3 is not subject to the 'prororgation' rule as set out in paragraph 6 of schedule 8.   In other words the paragrpah 3 rule is a primary rule which takes precedence over all other rules in schedule 8 - it cannot be contracted out of (except in accordance with para 3(6) which is unlikely to apply).

If you are sued in England, but normally live in Scotland, here is a style defence:

example defence in HTM or PDF.

Guidance on cross-border jurisdiction from the Department of Trade & Industry.

 

CIVIL JURISDICTION & JUDGMENTS ACT 1982

SCHEDULE 8

Jurisdiction over consumer contracts 

3. - (1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, subject to rule 5, jurisdiction shall be determined by this rule if -

(a) it is a contract for the sale of goods on instalment credit terms; or 

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in Scotland or, by any means, directs such activities to Scotland or to several places including Scotland, and the contract falls within the scope of such activities.

(2) This rule shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

(3) A consumer may bring proceedings against the other party to a contract only in -

(a) the courts for the place in which that party is domiciled; 

(b) the courts for the place in which he is himself domiciled; or 

(c) any court having jurisdiction by virtue of rule 2(f) or (i). 

(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i).

(5) The provisions of this rule shall not affect the right to bring a counterclaim in the court in which, in accordance with this rule, the original claim is pending.

(6) The provisions of this rule may be departed from only by an agreement - 

(a) which is entered into after the dispute has arisen; or 

(b) which allows the consumer to bring proceedings in courts other than those indicated in this rule; or

(c) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Regulation State, and which confers jurisdiction on the courts of that Regulation State, provided that such an agreement is not contrary to the law of that Regulation State.

***

Exclusive jurisdiction 

5. - (1) Notwithstanding anything contained in any of rules 1 to 4 above or 6 to 9 below but subject to paragraph (3) below, the following courts shall have exclusive jurisdiction: -

(a) in proceedings which have as their object rights in rem in, or tenancies of, immovable property, the courts for the place where the property is situated;

(b) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, the courts for the place where the company, legal person or association has its seat;

(c) in proceedings which have as their object the validity of entries in public registers, the courts for the place where the register is kept;

(d) in proceedings concerned with the enforcement of judgments, the courts for the place where the judgment has been or is to be enforced.

(2) No court shall exercise jurisdiction in a case where immovable property, the seat of a body mentioned in paragraph (1)(b) above, a public register or the place where a judgment has been or is to be enforced is situated outside Scotland and where paragraph (1) would apply if the property, seat, register or, as the case may be, place of enforcement were situated in Scotland.

(3) In proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts for the place in which the defender is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and tenant are domiciled in Scotland.

***

Prorogation of jurisdiction 

6. - (1) If the parties have agreed that a court is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court shall have jurisdiction.

(2) Such an agreement conferring jurisdiction shall be either - 

(a) in writing or evidenced in writing; or 

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

(3) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to "writing".

(4) The court on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

(5) Where an agreement or a trust instrument confers jurisdiction on the courts of the United Kingdom or of Scotland, proceedings to which paragraph (1) or, as the case may be, (4) above applies may be brought in any court in Scotland.

(6) Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of rule 5 or where rule 5(2) applies.