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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Karanja, R (On the Application Of) v University of the West of Scotland [2022] EWHC 1520 (Admin) (23 June 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/1520.html Cite as: [2022] EWHC 1520 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of WANJIRU KARANJA) |
Claimant |
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- and – |
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UNIVERSITY OF THE WEST OF SCOTLAND |
Defendant |
____________________
Jennifer Thelen (instructed by Clyde & Co) for the Defendant
Hearing date: 25 May
____________________
Crown Copyright ©
Michael Ford QC, sitting as a Deputy High Court Judge:
(1) An application dated 11 May 2022 in which the Claimant sought an extension of time for service of the claim form, pursuant to CPR 3.1(2)(a).
(2) An application dated 18 May 2022, in which the Claimant sought permission to adduce a witness statement from herself in connection with the question of jurisdiction.
(3) An application from the Defendant, sealed on 12 May 2022, in which it applied to set aside the claim form for late service and on the basis that the matter lay within the jurisdiction of the Scottish courts.
Background Facts
"By accepting our offer of admission you agree that the Scottish Courts will have exclusive jurisdiction to deal with any proceedings and that these Terms and any contract of which they form part will be governed by and interpreted in accordance with the law of Scotland."
"this matter has been passed to our insurers to deal with and Jacqueline Thomson is the internal contact. I will send your recent correspondence on to her but can you please update your records with the correct e-mail address as set out in my e-mail of the 10th so Ms Thomson can ensure things are dealt with promptly."
Service
"4.1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy."
"As for extensions of time for service of a judicial review claim form, whilst CPR 7.6 does not directly apply, its principles are to be followed on an application to extend under CPR 3.1(2)(a). Thus, unless a claimant has taken all reasonable steps to comply with CPR 54.7 but has been unable to do so, time for service should not be extended".
That is a clear statement of general application to judicial review claims.
Jurisdiction: English or Scottish Courts?
(1) Neither party submitted that the question was to be decided by reference to the Civil Jurisdiction and Justice Act 1992. This is presumably on the basis, as set out in Mr Persey's skeleton, that the dispute was in the sphere of administrative law and so fell outside that Act: see R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin) at §§37-45.
(2) Mr Persey lightly raised an argument that the Defendant could not challenge territorial jurisdiction because, where a defendant wishes to challenge the court's jurisdiction, under CPR 11 it "must first file an acknowledgement of service in accordance with Part 10". I consider he was right not to press the point. It is clear from the express wording of the order of Jay J that this issue was raised by the court of its own motion. The requirements of CPR 11 do not apply in circumstances where the court is acting of its own initiative under its general powers of case management, according to the Court of Appeal in Cook v Virgin Media [2015] EWCA Civ 1287at §§34-40. There is also an argument that unless and until an extension of time for service is granted, there were no extant proceedings in response to which an acknowledgement of service could be filed.
".. If contracting parties agree to give a particular court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English court will ordinarily exercise its discretion (whether by granting a stay of proceedings in England, or by restraining the prosecution of proceedings in the non-contractual forum abroad, or by such other procedural order as is appropriate in the circumstances) to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum. I use the word "ordinarily" to recognise that where an exercise of discretion is called for there can be no absolute or inflexible rule governing that exercise, and also that a party may lose his claim to equitable relief by dilatoriness or other unconscionable conduct. But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party's prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case. In the course of his judgment in The Eleftheria [1970] P 94, 99–100, Brandon J helpfully listed some of the matters which might properly be regarded by the court when exercising its discretion, and his judgment has been repeatedly cited and applied. Brandon J did not intend his list to be comprehensive, but mentioned a number of matters, including the law governing the contract, which may in some cases be material. (I am mindful that the principles governing the grant of injunctions and stays are not the same: see Aérospatiale at p 896. Considerations of comity arise in the one case but not in the other. These differences need not, however, be explored in this case)."
"First, in general the legal burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, although the evidential burden will rest on a party who seeks to establish the existence of matters which will assist him in persuading the court to exercise its discretion in his favour." "Secondly, if the court is satisfied by the defendant that there is another available forum which is clearly a more appropriate forum for the trial of the action, the burden will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England."
"Thirdly, the burden on the defendant is not just to show that England is not the natural or appropriate forum, but to establish that there is another forum which is clearly or distinctly more appropriate than the English forum; accordingly, where (as in some commercial disputes) there is no particular forum which can be described as the natural forum, there will be no reason to grant a stay." "Fourthly, the court will look to see what factors there are which point in the direction of another forum as being the ''natural forum'', i.e. that with which the action has the most real and substantial connection. These will include factors affecting convenience or expense (such as availability of witnesses) and such other factors as the law governing the transaction and the places where the parties reside or carry on business, and also whether the claim is part of a larger overall dispute which would be damaged by being fragmented."
"Fifthly, if the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay."
"Sixthly, if, however, the court concludes that there is some other available forum which prima facie is clearly more appropriate, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. In that enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions."
"Seventhly, a stay will not be refused simply because the claimant will thereby be deprived of ''a legitimate personal or juridical advantage'', provided that the court is satisfied that substantial justice will be done in the available appropriate forum."
Conclusion
(1) There was no effective service of the sealed judicial review claim form on 10 December (or subsequently) for the purpose of CPR 54.7 and/or CPR 6.3.
(2) In any event, the application to extend time for service of the claim form to 10 December under CPR 3.1(2)(a) is refused.
(3) The Scottish courts, and not the English courts, have jurisdiction to hear the claim by virtue of the exclusive jurisdiction clause contained in the terms and conditions of the Claimant's enrolment with the Defendant.
Note 1 In this regard, it is notable that in Good Law Project it appears to have been accepted that service by e-mail sent to Mr Olsen, the individual in the Government Legal Department to whom correspondence was to be sent, was not sufficient service (although in that case the GLD gave another specific address for service). [Back] Note 2 Carr LJ referred to the requirements of CPR 7.6(2), concerned with prospective extensions of time, but she presumably meant CPR 7.6(3). [Back]