Jurisdiction of a civil claim

[Guest]

I have a claim against me from the management company of a freehold property (mixed leasehold and freeholds on the estate). The dispute surround the repair of a wall that ajoins my property, the introduction of CCTV and restricted parking which is not permissible under the Estate rent charge and lease. We hack had the first hearing and the case was ajoined pending a full trial date, and a surveyors report into the subsidence which has damage the wall. I raised in the court (self represented) that the court had no jurisdiction because the deed they are relying upon to recover the charge is the same deed which state that any dispute should be revered to a surveyor - am I am to make an application to challenge the Court's jurisdiction?

[des8]

If you wish to dispute a court's jurisdiction you must follow the Court Procedure Rules (https://www.justice.gov.uk/courts/pr...l/rules/part11)
It sounds as if you have entered a defence and if that is so you have accepted the court's jurisdiction

Perhaps you should have applied for the claim to be struck out as having no hope of success as the claimant is relying on the wrong deed.
Have you pointed out to the claimant their error and invited them to discontinue, or face a claim for unreasonable behaviour and a costs order?

[Oct19]

Oh I did not know that would impact jurisdiction, thanks for the information, I appreciate it.

[efpom]

Failing to make an application that the court has no jurisdiction is not necessarily fatal to a submission that the court lacks jurisdiction even when a defence has been filed.

If the parties have agreed between them that a dispute must be referred to arbitration, the court does not have the power to substitute itself as arbitrator.

Of course, if the arbitrator, having determined the dispute, has made an error of law, the the agreived party does have the right to have that matter resolved by the court.

[R0b]

I'm with Des on the jurisdiction point. There is relatively recent case law on the subject of jurisidiction which makes it clear that unless you follow the correct procedures for disputing the jurisdiction of the court, you are deemed to have accepted it.

As to Efpom's point that the court must refer the dispute to arbitration is not correct according to a recent case. In Ophen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC), the judge reviewed the authorities on ADR and enforcement of them, providing some guidance in the form of four principles on whether a claim should be stayed to enforce an ADR clause:

(i) The agreement must create an enforceable obligation requiring the parties to engage in alternative dispute resolution.

(ii) The obligation must be expressed clearly as a condition precedent to court proceedings or arbitration.

(iii) The dispute resolution process to be followed does not have to be formal but must be sufficiently clear and certain by reference to objective criteria, including machinery to appoint a mediator or determine any other necessary step in the procedure without the requirement for any further agreement by the parties.

(iv) The court has a discretion to stay proceedings commenced in breach of an enforceable dispute resolution agreement. In exercising its discretion, the Court will have regard to the public policy interest in upholding the parties' commercial agreement and furthering the overriding objective in assisting the parties to resolve their disputes.

The judge also went on to say:

There is a clear and strong policy in favour of enforcing alternative dispute resolution provisions and in encouraging parties to attempt to resolve disputes prior to litigation. Where a contract contains valid machinery for resolving potential disputes between the parties, it will usually be necessary for the parties to follow that machinery, and the court will not permit an action to be brought in breach of such agreement.

The Court must consider the interests of justice in enforcing the agreed machinery under the [contract]. However, it must also take into account the overriding objective in the Civil Procedure Rules when considering the appropriate order to make.

So, although you might have accepted jurisdiction of the court, that does not prevent you from making an application to stay proceedings and enforce the ADR provision.

[efpom]

I do not see any contradiction between what I wrote and the case law.

[R0b]

If the parties have agreed between them that a dispute must be referred to arbitration, the court does not have the power to substitute itself as arbitrator.

What you said above is strictly not true.

You also mentioned that failing to make an application is not fatal to submitting that the court does nto have jurisdiction - well it is because the courts have said it is, since you are deemed to have accepted so any argument on non-jurisidiction would be fatal.