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Court Jurisdiction Case Study

The plaintiff bank sought to enforce securities against defendant companies in English courts, though the defendants had commenced similar proceedings in Greek courts and sought a stay of the English proceedings. The issue was whether the English court had jurisdiction and should consider the stay application first. The Court of Appeal ruled the stay application should be heard first, as considering a stay does not assume the court has jurisdiction over the merits but rather jurisdiction to determine its own jurisdiction. Lord Fraser agreed, finding Bingham J.'s view that considering a stay would assume jurisdiction over the merits was mistaken in confusing the two types of jurisdiction. Prior cases established temporary presence in a country could give its courts jurisdiction, and appealing to those courts for relief from liability increased the duty to obey their

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440 views2 pages

Court Jurisdiction Case Study

The plaintiff bank sought to enforce securities against defendant companies in English courts, though the defendants had commenced similar proceedings in Greek courts and sought a stay of the English proceedings. The issue was whether the English court had jurisdiction and should consider the stay application first. The Court of Appeal ruled the stay application should be heard first, as considering a stay does not assume the court has jurisdiction over the merits but rather jurisdiction to determine its own jurisdiction. Lord Fraser agreed, finding Bingham J.'s view that considering a stay would assume jurisdiction over the merits was mistaken in confusing the two types of jurisdiction. Prior cases established temporary presence in a country could give its courts jurisdiction, and appealing to those courts for relief from liability increased the duty to obey their

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Nahmy
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In the case Williams Glyn’s Bank PLC Vs.

Astro Dinamico Compania Naviera SA (1984) 1


W LR 438 - the plaintiff bank sought by action to enforce its securities in 
England against the defendants being companies owned and managed in Greece which had
by agreement submitted to the jurisdiction of the English Courts. The defendants commenced
proceedings in the Greek Court raising similar issues as those raised in the English action.
They also issued summons in the Bank’s English action 
for, inter alia: 
1. an order to set aside the proceedings on the ground that the English Court had no
jurisdiction; and 
2. a stay of proceedings pending the determination of proceedings in Greece.
On the question whether the stay of proceedings should be dealt with first, Bingham J. held
that the application for a stay involved the assumption that the Court had jurisdiction to
entertain the action, and therefore the question of jurisdiction must be decided first. The
Court of Appeal allowed an appeal by the defendants and ordered that the application for a
stay be heard and determined first. On appeal by the Bank per Lord Fraser of Tullybelton,
“The argument to the contrary  which was accepted by Bingham J. was that, if the Court
were to entertain the application for a Stay, it would be assuming that it had jurisdiction to
entertain the action. With the greatest respect to the learned Judge, I agree with Robert Goff
L.J. in the (‘unit of Appeal that view is mistaken. The fallacy is in confusing two
different kinds of jurisdiction; The first is jurisdiction to decide the action on its merits,
and  the second is jurisdiction to decide whether the Court has jurisdiction of
its former kind.

It is generally assumed that the residence of the defendant within the territory of the court
will suffice. In Carrick v Hancock (1895) 12 TLR 59 the temporary presence of an
Englishman in Sweden was sufficient to confer jurisdiction on the Swedish court. This case,
to some extent, typifies the 19th century emphasis on territorial jurisdiction. It was held that
the fact that the residence of the defendant in the foreign country was merely temporary was
not sufficient to oust the jurisdiction of the Courts of that country over him. It seems to me
that if the duty of allegiance exists in a case like that where a mere temporarv protection of
the law of the foreign Court is enjoyed, the case is far stronger when a defendant actually
appeals to a foreign Court to relieve him from a liability which the plaintiff by his action
seeks to place upon him.
Bankes L.J. thus likens the alleged duty of a protesting defendant to obey the foreign court to
the duty of temporary allegiance which is incumbent upon a person who lives, albeit only
temporarily, under the protection of a foreign law.

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