Emmanuel v. Symon

It is the list case. Buckley L.J. enumerated the grounds on which a foreign court is competent, and the paper uses that list to make a single organising point: the list is shorter than it looks.

This course cites the case for the enumeration and does not set out its facts.

Five grounds of competency were listed, of which four reduce to presence and submission. As to the remaining ground — that the defendant is a subject of the foreign country — there is no direct English authority, and the more accepted position is that nationality as such is not a reason which can justify the exercise of jurisdiction by the foreign court.

Step one — collapse the list. Residence, temporary presence, suing as plaintiff, appearing and pleading, appealing, and an agreement to submit are all instances of one or other of the two real grounds: the defendant was there, or he accepted the court.

Step two — test nationality against the reason for the rule. Recognition rests on the obligation that arises when a competent court adjudges a sum due, and competence is measured by whether it was fair to make this defendant answer in that court. A bare tie of allegiance, with no presence and no acceptance, does not make it fair.

Step three — check reciprocity. The forum credits a foreign court with the jurisdiction it claims for itself. English law does not take jurisdiction over absent defendants on nationality alone, so it does not credit a foreign court with it either.

It opens: State the grounds on which a foreign court is competent in the international sense — and the best answer gives the list and then collapses it, because that shows understanding rather than memory.

Fill in each limb with its case. Presence: Carrick v. Hancock, with the candid note that it may equally rest on submission, and the corporate rule that substantial business must be carried on at a definite and more or less permanent place in the country of trial. Submission: S.A. Consortium v. Sun and Sand, limited by Re Dulles' Settlements.

Add the other two conditions, which are often examined with competence. Finality: the judgment must amount to res judicata by the law of the country where given, so provisional judgments and preliminary decrees will not do — though finality means final in the court that pronounced it, and a pending appeal is no bar, the English court usually staying the action. A fixed sum: the obligation can arise only for a definite sum, which is Sadler v. Robins.

It does not decide anything about judgments in rem, for which neither presence nor submission is required.