Jurisdiction Reminder: Scotland’s Still in the UK

October 30, 2013

The Technology and Construction Court (TCC) in Oak Leaf Conservatories Ltd v Weir [2013] EWHC 3197 (TCC) had little difficulty in determining a dispute about jurisdiction.

Oak Leaf had sought to sue Mr and Mrs Weir for repudiation of contract in respect of the design, manufacture and installation of a greenhouse, a semi-circular garden room and a pool house for the Weirs’ Ayrshire home. Oak Leaf, which is based in York, brought its action in the courts of England and Wales. The Weirs applied for an order declaring that the English court has no jurisdiction to try the claim or, alternatively, that it should not exercise any jurisdiction which it may have. They stated that exclusive jurisdiction was vested in the courts of Scotland pursuant to the Civil Jurisdiction and Judgments Act 1982.

The relevant rule determining jurisdiction (sch. 4, r. 8(2)) vested exclusive jurisdiction in the courts of Scotland if it was determined that Oak Leaf ‘pursues commercial or professional activities in [Scotland] or, by any means, directs such activities to [Scotland] or to other parts of the United Kingdom including [Scotland]’. Oak Leaf took the (really quite surprising: Ed) stance that its activities were not pursued in Scotland nor, by any means, directed to Scotland.

The case is of interest to SCL members since one factor in Mr Justice Stuart-Smith’s determination of the issue was the Oak Leaf web sites which referred to doing business throughout the UK in terms which, according to the Weirs, amounted to clear expressions of an intent to solicit custom in Scotland (although these attempts had rarely been successful).

The judge had little time for the Oak Leaf stance, concluding his short judgment thus:

  1. In oral submissions Oak Leaf attempted to dismiss the content of its various websites as being a mere puff. In its written submissions it submitted “for a construction contractor to pursue its activities in or direct its activities to another city, let alone country, it needs to have actual presence in that area or the willingness and ability to work in that area.” The extracts from the websites to which I have referred show beyond argument that Oak Leaf has a willingness and ability to work in Scotland. Its reference to “projects undertaken throughout the UK” is a statement of willingness to work in all parts of the UK and can only be read as an intention to solicit the custom of consumers in all parts of the UK, including Scotland. Less weight can be placed upon the recruiting advertisement although it is not immaterial that Oak Leaf seeks to recruit from all over the UK and states that its business involves installing “in the UK”. This is at least consistent with Oak Leaf’s intention to run its business across the whole of the UK if it is able to solicit custom. Much more important is the clear indication that Oak Leaf will become involved with the obtaining of consents and compliance with Building Regulations, which differ in different parts of the United Kingdom. This is expressly recognised by Oak Leaf when it states that “there are differences in the appropriate legislations in England, Wales, Scotland and Northern Ireland” and that it “will be very happy to make initial enquiries on your behalf”. There could be no purpose to this statement if it was not meant to induce potential customers in all parts of the United Kingdom to conclude that Oak Leaf is prepared and competent to advise on legislation and to build in all the disparate parts of the United Kingdom.
  1. Thus while I accept that the primary focus of Oak Leaf’s business may be in England and that most of the business it has obtained historically has been in England, it is apparent from its websites and its overall activity (including the acceptance of previous projects in Scotland as well as that of the Weirs) that Oak Leaf was envisaging doing business with consumers domiciled in Scotland. Adopting the test outlined in Oak Leaf’s written submissions that I have set out at [16] above, the websites and previous dealings show that Oak Leaf has the willingness and the ability to work in Scotland.
  1. For the reasons set out above I therefore conclude that Oak Leaf pursues commercial activities in Scotland and directs its activities to Scotland within the meaning of rule 7(1) so that rule 8(2) of schedule 4 is applicable. These proceedings may therefore only be brought against the Weirs in the courts of Scotland.