§ 8.38 p.m.
§ The Lord Chancellor rose to move, That the draft order laid before the House on 25th January be approved [17th Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the purpose of this Order in Council is to make adjustments to the rules which govern the allocation of jurisdiction to the courts of the different parts of the United Kingdom in civil cases. The first part of the order deals with cases which have a connection with more than one part of the United Kingdom: where the plaintiff is English and the defendant Scottish, for example. The second part deals with rules of jurisdiction in Scotland.
§ The existing rules allocating jurisdiction within the United Kingdom are set out in Schedule 4 to the Civil Jurisdiction and Judgments Act 1982. They largely —-but not entirely—follow the rules in the 1968 Brussels convention on jurisdiction and the enforcement of judgments in civil and commercial matters. That convention deals with jurisdiction and the enforcement of judgments as between member states of the European Community, and the main purpose of the 1982 Act was to give effect to the convention in the United Kingdom. When Spain and Portugal acceded to the Brussels convention in 1989 the opportunity was taken to modify some of the rules of jurisdiction. We have decided, after consulting interested bodies within the legal profession, that the intra-UK rules of jurisdiction in Schedule 4 should also be amended.
§ The power to do this comes from Section 14 of the 1982 Act. The order makes amendments to Schedule 4 in three areas: contracts of employment, related claims concerning a contract and real property, and holiday lettings.
§ Article 5(1) of the Brussels Convention provides that in contract cases a defendant may be sued in the 618 country of his domicile or in the courts for the place of performance of the contract. That article has now been amended to include a provision relating specifically to individual contracts of employment. The amendment provides that the place of performance of such a contract is the country in which the employee habitually carries out his work. If he does not habitually work in any one country, he may choose to sue the employer in the courts for the place of business through which he was engaged.
§ The flexibility accorded by this new provision is intended to benefit the employee, as the weaker party in the contractual relationship. I see no reason why Schedule 4 should not be amended to keep it in line with the Brussels Convention in this respect, and the order provides accordingly. For example, its effect will be to make it clear that a person from Belfast who works there for a company based in London will be able to bring proceedings against the company, in a matter relating to his employment, in Belfast.
§ The order also permits a further choice, which is given to a plaintiff employee by a new fifth paragraph in Article 17 of the Brussels Convention. That paragraph invalidates a choice of court agreement in cases concerning a contract of employment unless the agreement was made after the dispute arose. However, it allows an employee (but not an employer) to take advantage of a pre-dispute agreement which confers jurisdiction on a court other than that of the defendant's domicile or that of the place of performance of the contract.
§ A new paragraph 4 in Article 6 of the Brussels Convention provides that, where in a contract case the plaintiff is suing the same defendant over rights in rem in real property, then, if the two actions can conveniently be combined, he may bring both actions in the country where the property is situated. I believe that there is merit in enabling two issues between the parties to be dealt with by the one court in a single set of proceedings. A similar provision has therefore been added to Schedule 4.
§ Finally, Article 16(1), which gives exclusive jurisdiction in proceedings relating to immovable property to the courts of the state in which the property is situated, has been amended with respect to the particular case of short-term holiday lets. It now contains an exception in cases relating to tenancies concluded for temporary private use for a maximum period of six consecutive months. In such cases the courts of the defendant's domicile also have jurisdiction, so long as both the landlord and the tenant are natural persons—that is to say, not companies—and are domiciled in the same contracting state. We agree that this special provision is justified. It would mean, for example, that a dispute between two English people over a holiday letting in Scotland would not have to be heard in Scotland if it was more convenient for it to be dealt with in England. I should add that the consultation paper which preceded the preparation of this order canvassed a slightly different amendment to Article 16(1), but we have since concluded that this cannot be adopted since the powers in Section 14 of the 1982 Act enable 619 amendments to be made to Schedule 4 only if they correspond with those made to the Brussels Convention.
§ The second part of the order consists of amendments to Schedule 8 to the 1982 Act. This schedule contains the rules as to jurisdiction within Scotland. At the time of implementation of the Brussels Convention it was decided to take the opportunity to review and codify the Scottish rules of jurisdiction. Following the recommendations of the 1980 Report of the Scottish Committee on Jurisdiction and Enforcement, chaired by Lord Maxwell, it was decided that the Scottish rules should generally follow those of the Brussels Convention. Schedule 8 therefore provides a comprehensive code of jurisdiction for Scotland.
§ After consulting representatives and members of the legal profession in Scotland and receiving a favourable response, I have decided that the rules in Schedule 8 should also be amended to bring them into line with the revised Brussels Convention. The Lord Advocate has agreed with that view. The amendments made by the order to Schedule 8 have the same effect as those for Schedule 4 which I have already explained.
§ I believe that these amendments are useful. They have the support of the judiciary and interested bodies within the legal profession. I commend them to the House. I beg to move.
§ Moved, That the draft order laid before the House on 25th January be approved [17th Report from the Joint Committee]. —(The Lord Chancellor.)
§ Lord Meston
My Lords, I join in welcoming this proposal, in particular the flexibility in employment cases which it is to introduce even though it is apparently to deny Englishmen the delights of litigation in Scotland.
§ The Lord Chancellor
My Lords, I am sorry that it should have that effect. I am not sure that it would. I am grateful for the support which the proposal has received.
§ On Question, Motion agreed to.