European Commission > EJN > Jurisdiction of the courts > Gibraltar

Last update: 19-08-2004
Printable version Bookmark this page

Jurisdiction of the courts - Gibraltar

If you want to initiate legal proceedings in civil or commercial matters, you will have to identify the court that is competent to deal with your case or, in other words, has jurisdiction. If you use the wrong court or if there is a dispute over the question of jurisdiction you run the risk of a considerable delay in the proceedings or even of a dismissal of your case because of a lack of jurisdiction.

Gibraltar



 

TABLE OF CONTENTS

A. Should I apply to an ordinary civil court or to a specialised court? A.
B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to? B.
I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case? I.
II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?) II.
1. The basic rule of territorial jurisdiction 1.
2. Exceptions to the basic rule 2.
a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court? a)
b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)? b)
c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise? c)
C. Where specialised courts have jurisdiction how can I find out which one I have to address? C.

 

A. Should I apply to an ordinary civil court or to a specialised court?

Most cases involving civil or commercial matters should be initiated in the Supreme Court of Gibraltar. The Supreme Court is divided into various jurisdictions but due to the size of the jurisdiction, there is only one registry and two judges dealing with all matters. Further guidance can be obtained from:

The Supreme Court Registry
277 Main Street
Gibraltar
(tel.: +350.75608).

In cases involving small debts of under £1.000, a claim can be commenced in the Court of First Instance, also at 277 Main Street, Gibraltar.

B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?

As mentioned above, most civil and commercial claims should be dealt with by the Supreme Court of Gibraltar. Small claims of under £1.000 can be dealt with by the Court of First Instance. Some matrimonial matters that do not arise out of divorce, judicial separation or marriage annulment can be dealt with by the Magistrates' Court of Gibraltar. Matters arising out of divorce proceedings, judicial separations or marriage annulments generally come under the jurisdiction of the Supreme Court.

I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

The Court of First Instance has jurisdiction to deal with actions founded on contract or tort where the debt, demand or damage claimed is not more than £1.000. The Court also has jurisdiction to deal with an action for the recovery of land where the net annual value for rating of the land in question does not exceed £150. The Supreme Court has jurisdiction to deal with all other cases. The Magistrates' Court has a limited civil jurisdiction, mainly in the area of domestic proceedings such as the custody, care and control of children and maintenance (where these do not arise out of divorce proceedings).

back

TopTop

II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)

Due to Gibraltar's size, the issue of internal territorial jurisdiction does not arise.

1. The basic rule of territorial jurisdiction

The general rule is that actions against an individual or body corporate should be commenced in the jurisdiction in which that individual or body corporate is domiciled or has its seat (in the latter case).

2. Exceptions to the basic rule
a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?

Contracts - The Rome Convention 1980 as read with The Luxembourg Convention 1984, The Brussels Protocol 1988 and the Funchal Convention 1992 are of legal effect in Gibraltar. The parties to a contract can specify which law is to be applied. In cases involving certain consumer contracts and individual employment contracts, a choice of law provision made by the parties to a contract are not to have the effect of depriving a consumer or an employee of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence (for consumers) or habitually carries out his work (for an employee).

Where the parties to a contract have not chosen the law of a country, the contract is normally governed by the law of the country with which it is most closely connected.

back

TopTop

Maintenance - An application for maintenance can be made in Gibraltar in three cases:

  1. where either the complainant or the defendant is resident in Gibraltar at the time when the application for a maintenance order is made;
  2. where the cause of the complaint arose wholly or partly in Gibraltar; or
  3. where the husband or wife has assets in Gibraltar. The Magistrates' Court may even have jurisdiction where any party to the proceedings is not domiciled in Gibraltar.

Where a maintenance order has been made in one Contracting State, it may be possible to enforce the same in another Contracting State by the applicability of the 1968 Convention and the Lugano Convention. An application under Article 31 for the recognition or enforcement in Gibraltar of a maintenance order is transmitted to the Magistrates' Court by the Attorney General. Once registered by the Magistrates' Court, it is as enforceable as a local maintenance order.

Tort - The general rule is that any legal proceedings should be instituted in the country where the act was done. However, where an act committed in a foreign country can be considered as a tort under Gibraltar law (which derives from English common law) and is also actionable under the law of the foreign country, then it may also be actionable in Gibraltar. A particular issue between the parties may be governed by the law of the country which has the most significant relationship with the occurrence and the parties. (These principles are extracted from Dicey & Morris “The Conflict of Laws”).

back

TopTop

Civil claims for damages in criminal proceedings - Most claims are based on tortious elements and therefore the same basic rules apply as set out above. It should be mentioned that in Gibraltar, there is currently no statutory compensation scheme.

Divorce - Divorce proceedings between spouses not living in Gibraltar or of different nationalities will only be entertained by the Supreme Court where either of the parties is domiciled in Gibraltar on the date when the proceedings are begun or was habitually resident in Gibraltar throughout a period of one year ending with that date. The Supreme Court of Gibraltar will apply Gibraltar law.

There is provision under Gibraltar law for the recognition of divorces and legal separations obtained in another Member State by means of judicial or other proceedings that are effective under the law of that country.

In proceedings for annulment, the question of whether a marriage is invalid will generally be determined by the law of the place where the marriage occurred. The question of whether a marriage is invalid on the basis of capacity to marry or consent of the parties is normally determined by the law of the man's or woman's antenuptial domicile. The question of whether a marriage is invalid on the basis of impotence or a refusal to consummate can be determined by Gibraltar law or possibly the law of the petitioner's domicile at the time of the marriage. (These principles are extracted from Dicey & Morris “The Conflict of Laws”).

Parental responsibility - The question of jurisdiction in cases involving parental responsibility is contained in Council Regulation (EC) 1347/2000. In essence, the Court of a Member State exercising jurisdiction by virtue of Article 2 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in matters of parental responsibility over a child of both spouses where the child is habitually resident in that Member State.

back

TopTop

Where the child is not habitually resident in that Member State, the Court of that State shall have jurisdiction if the child is habitually resident in another Member State and at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the Court has been accepted by the spouses and is in the best interests of the child.

Article 2 provides that in matters relating to divorce, legal separation or annulment, jurisdiction shall lie with the courts of the Member State in whose territory:

  • the spouses are habitually resident, or
  • the spouses were last habitually resident in so far as one of them still resides there, or
  • the respondent is habitually resident, or
  • in the event of a joint application, either of the spouses is habitually resident, or
  • the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
  • the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his “domicile” there.
b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?

Normally, the Supreme Court has exclusive jurisdiction to hear actions in personam against a defendant who is in Gibraltar. The position may differ in cases such as:

back

TopTop

  • in a contractual situation, where the parties had previously agreed to submit to a particular jurisdiction
  • in proceedings the object of which are the rights in immovable property situated in another Member State
  • in proceedings the object of which are the constitution, nullity or dissolution of companies if the company in question does not have its seat in Gibraltar and has its seat in another Contracting State
  • in proceedings the object of which is the validity of entries in public registers kept in another Contracting State
  • in proceedings concerned with the registration or validity of patents, trade marks, designs or similar rights required to be deposited or registered, if the deposit or registration in question has been applied for, has taken place or is under the terms of an international convention deemed to have taken place in another Contracting State
  • in proceedings concerned with the enforcement of judgments if the judgment has been or is to be enforced in another Contracting State. (These principles are extracted from Dicey & Morris “The Conflict of Laws”).
c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?
  • Contractual cases - The parties to a contract can specify which law is to be applied. In cases involving certain consumer contracts and individual employment contracts, a choice of law provision made by the parties to a contract are not to have the effect of depriving a consumer or an employee of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence (for consumers) or habitually carries out his work (for an employee).

    Where the parties to a contract have not chosen the law of a country, the contract is normally governed by the law of the country with which it is most closely connected.

  • The Supreme Court has jurisdiction to allow an action in personam against a person who submits to the jurisdiction of the court. Therefore, a person who would not otherwise be subject to the jurisdiction of a particular court may, through his own conduct, preclude himself to objecting to the jurisdiction. This principle is also encompassed in Article 18 of the 1968 Convention and the Lugano Convention and applies to those cases within the scope of the said Conventions. It may be possible for a defendant to challenge this principle on the basis that his appearance was made solely for the purpose of contesting the jurisdiction. (These principles are extracted from Dicey & Morris “The Conflict of Laws”).

C. Where specialised courts have jurisdiction how can I find out which one I have to address?

Please see Section B above. Due to the complex nature of the law in this area and the array of permutations, it is not possible to provide further information than that set out above without considering the facts of each case.

« Jurisdiction of the courts - General information | United Kingdom - General information »

back

TopTop

Last update: 19-08-2004

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom