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.
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:
defence in HTM
on cross-border jurisdiction from the Department of Trade & Industry.
JURISDICTION & JUDGMENTS ACT 1982
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
consumer may bring proceedings against the other party to a contract
only in -
courts for the place in which that party is domiciled;
courts for the place in which he is himself domiciled; or
(c) any court
having jurisdiction by virtue of rule 2(f) or (i).
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).
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.
provisions of this rule may be departed from only by an agreement -
(a) which is
entered into after the dispute has arisen; or
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.
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: -
proceedings which have as their object rights in rem in, or tenancies
of, immovable property, the courts for the place where the property
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;
proceedings which have as their object the validity of entries in
public registers, the courts for the place where the register is kept;
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.
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
(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.