Carrick v. Hancock

For a judgment in personam there are only two grounds of international competence — presence and submission. This case is the authority usually cited for the first in its weakest form, temporary presence, and the course is candid that the case may not really decide that at all.

An Englishman was served with process during a short visit to Sweden, and the Swedish judgment was later relied on in England.

Temporary presence in the foreign country is a ground of international competence. But this course notes that the case can equally be supported on the ground of submission.

Step one — the two grounds. The first and overriding essential for the effectiveness of a foreign judgment is that the adjudicating court should have had jurisdiction in the international sense over the defendant, and for a judgment in personam that means either presence in the foreign country or voluntary submission to its jurisdiction.

Step two — residence certainly suffices; temporary presence is doubtful. The course says in terms that whether temporary presence suffices is not free from doubt.

Step three — the argument for it is reciprocity. English law itself founds jurisdiction on temporary presence: once served, the English court may try the suit even if the subject matter has no connection with England. The same yardstick should therefore be applied to the foreign court.

Step four — the argument against it. Casual presence is undesirable where the cause of action arose elsewhere, since the court is not in a favourable position to deal intelligently either with the facts or with the law.

It opens: On what grounds will a foreign court be held competent in the international sense?

Present the case honestly. Say that it is the authority cited for temporary presence, and that its support for the proposition is weakened because it can be explained on submission. An answer that notices the weakness is worth more than one that asserts the rule.

Give the corporate rule alongside, since examiners pair them: a corporation is not amenable unless, at the time of the commencement of the action, substantial business was being carried on by it at some definite and more or less permanent place in the country of trial.

Complete the pair with the submission cases — S.A. Consortium v. Sun and Sand for submission by suing as plaintiff, by appearing and pleading to the merits, or by appealing; and Re Dulles' Settlements for the rule that an appearance to protest is not submission.

And dispose of nationality. In Emmanuel v. Symon five grounds of competency were listed, four of which reduce to presence and submission; on nationality there is no direct English authority, and the more accepted position is that nationality as such does not justify the foreign court's jurisdiction.

It does not decide anything about judgments in rem, which are accorded universal recognition on the court's power over the res, without presence or submission.