Stand up to the “invasion”

Timely is Mr McCormick’s letter (Journal, September 2018, 6), in which he broaches an important subject well worthy of legal debate, quite apart from nationalistic concern, namely the current trend to anglicise what ex facie are Scottish contracts.
Almost daily, one is faced in practice with one of three different types of governing-law clauses in UK contracts seeking to exclude their judicial interpretation in conformity with Scots law. To that purpose, a contract may stipulate for one of three situations:

1. only English law is to be applied in interpreting the contract;
2. the English courts are to have exclusive jurisdiction;
3. only the English courts are to have jurisdiction and the contract must be interpreted purely according to English law.

In situation 1, day-to-day no problem should arise. I have dealt with a number of cases in which the sheriff, unqualified in English law, and in the absence of any evidence as to the applicable English law being adduced, ex proprio motu has decided the case according to what the learned sheriff has held to be English law.

In situation 2, the jurisdiction of the Scottish courts is clearly ousted as, for instance, in the case of Bank of Ireland (UK) plc v Knight Frank LLP [2015] CSOH 157. In this case the contract provided that “[the parties] will submit to the jurisdiction of the English courts only” and, as ought to have been obvious from the outset, the Lord Ordinary (Woolman) held that the Court of Session did not have jurisdiction.

In situation 3, one has a situation a fortiori of situation 2, of course.

By the by, it is worth remembering that in situations 2 and 3, in the vast majority of the extremely common cross-border cases involving a consumer contract, in the event of a dispute arising, the provisions of the Civil Jurisdiction and Judgments Act 1982 will operate, with the result that in practice the problem is avoided. Scottish solicitors, not least those with principal or branch offices in England & Wales, really ought to be in the vanguard of those of us endeavouring to stand up to the aforementioned English invasion.