As a junior litigator in the 1990s, it was drummed into me that if you were challenging the jurisdiction of the English court, you should be very, very careful not to do anything in the proceedings other than bring that challenge. If you didn’t heed this advice, the court would likely find that your client had submitted to the jurisdiction of the English court, leaving you with a very unhappy client, pointless delay and wasted costs.
Is that still the case in 2016? Recent cases, including a Court of Appeal decision from earlier this year, show that there is a surprising number of things you can do which may not be held to amount to submission.
However, context is everything, and this is one of those areas where the advice may differ depending upon whether you are acting for a claimant or defendant.
If you are acting for a claimant, you could well be pessimistic about the chances of succeeding in a claim that the defendant has submitted. On the other hand, if you are acting for a defendant, your advice may well be to not take the risk: if your application challenging the jurisdiction is opposed, which it probably will be, there is little downside to a claimant throwing a submission argument into the mix, thereby increasing the points that you have to counter and the uncertainty as to the result.
Zumax Nigeria v First City Monument Bank
In Zumax Nigeria v First City Monument Bank, Zumax, a Nigerian engineering company, alleged that it had been defrauded to the tune of approximately $3.5 million. Its claim was that a bank taken over by First City Monument Bank (FCMB) received this money into its correspondent account with Commerzbank in London and didn’t pay it on to Zumax. FCMB denied in correspondence that the monies had been transferred to the Commerzbank account. Zumax therefore made an application for disclosure of Commerzbank’s records under the Bankers’ Books Evidence Act 1879 (BBEA 1879). Redacted copies of those records were provided and revealed that the monies had been transferred. FCMB then made its own application under the BBEA 1879, seeking unredacted copies of the records so that they could see where the monies had been transferred, and in particular whether they had been transferred to Zumax. FCMB’s application was made in April 2014, some four months after it had made an application to challenge the jurisdiction of the English court.
In the High Court, it was held that by making the BBEA 1879 application, FCMB had submitted to the jurisdiction of the English courts. The judge pointed to the fact that no mention was made of the application being without prejudice to the challenge to the jurisdiction. In addition, the supporting evidence said that there were fraud issues before the court, and the documents were required to “assist the court to resolve [the] dispute justly and expeditiously.” The judge thought that this was inconsistent with the defendant’s position that the court had no jurisdiction to resolve the dispute at all.
The Court of Appeal (Kitchin LJ giving the judgment of the court) disagreed. Where a challenge to the jurisdiction has been made or the time for doing so has not yet expired, any conduct said to amount to submission, and therefore a waiver of that right to challenge, must be wholly unequivocal. That wasn’t the case here because:
- The jurisdiction challenge had been listed and came on for hearing just over a month later.
- The bank was also seeking to strike out the claim, without prejudice to the jurisdiction challenge.
- The documents sought were relevant to both applications.
FCMB ultimately failed in its challenge to the jurisdiction, but not on the basis of submission.
Winkler and another v Shamoon and others
A similar approach can be seen in the High Court decision in Winkler and another v Shamoon and others. That case concerned claims brought against the widow and daughter of an Israeli businessman. Both defendants contested the jurisdiction of the English court. The claimants argued (amongst other things) that, prior to making an application to challenge the jurisdiction, the defendants had submitted to the English courts by:
- Applying to strike out the claim.
- Applying to set aside judgment in default.
- Making a request for further information in relation to the particulars of claim.
Submission under common law rules and under article 24 of the Brussels Regulation were both relevant, as the daughter accepted she was domiciled in England (although argued that the succession exception meant that the proceedings were not within the Brussels Regulation) whereas the widow did not. Under article 24 (now article 26 of the recast Brussels Regulation), a member state court, before which a defendant enters an appearance, has jurisdiction except where appearance was entered to contest the jurisdiction.
The judge did not consider that the defendants had submitted because:
- They had consistently stated that the steps they were taking were without prejudice to their jurisdictional challenge.
- The strike out was based upon a mistaken belief that particulars of claim hadn’t been served.
- It would be absurd if a defendant who wished to challenge jurisdiction was unable to set aside a judgment in default without submitting.
- The express purpose of the request for further information was to obtain greater clarity as to the precise nature of the claim in connection with the intended jurisdiction challenge.
The defendants succeeded in their challenge to the jurisdiction of the English courts.
So it seems from these cases that the courts will take some convincing that a defendant has given up their right to challenge the jurisdiction and has submitted to the English court. However, it’s worth remembering that it is going to be a question of fact in every case as to whether the steps taken do have relevance to the jurisdiction challenge (or otherwise do not constitute submission), so there is always going to be a risk involved.
So the question will be, in circumstances where you know the argument is likely to be raised, is it worth taking that risk?