Intellectual Property and Private International Law

By James J. Fawcett; Paul Torremans | Go to book overview

I

INTRODUCTION

In the situation where the EC/EFTA rules, outlined in the previous chapter, do not apply, recourse must be had to the traditional rules on jurisdiction. These rules are more complicated than the EC/EFTA rules. It is not simply a question of finding a basis of jurisdiction in respect of a foreign defendant, it also has to be asked whether the English court will exercise its discretionary powers to stay the action. Moreover, in infringement cases, there are subject matter limitations in relation to jurisdiction which do not exist under the EC/EFTA rules.


II BASES OF JURISDICTION

1. SERVICE OF A WRIT WITHIN THE JURISDICTION

(a) PRESENCE WITHIN THE JURISDICTION

(i) The rules

The English courts are competent to try an action in personam in the situation where there has been service of a writ on a defendant present within the jurisdiction.1 Mere transient presence of an individual will suffice. With corporate defendants, it is necessary to see if a company is registered in England under the Companies Act 1985. If so, service of the writ can be effected by sending it to the registered office of the company.2 With a foreign company the position is more complicated.

The Companies Act 1985, as amended,3 distinguishes between foreign companies which have a branch in Great Britain and those that have established a place of business, which is not a branch, in Great Britain.

A limited company which is incorporated outside the United Kingdom and Gibraltar, and has a branch4 in Great Britain is required to register with the registrar of companies the names and addresses of all persons resident in Great Britain authorised to accept on the company's behalf service of process in respect of the business of the branch. 5 Process in respect of the carrying on of the business of a branch is sufficiently served if addressed to any such person and is left at or sent by post to that address. 6

____________________
1
See Cheshire and North, pp 183-188.
2
Companies Act 1985, s 725( 1).
3
See SI 1992/3179.
4
For the interpretation of branch see Schedule21A, para 13.
5
Section 690A and Schedule 21A, 3(e).
6
Section 694A(2).

-241-

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