JURISDICTION BY ENTERING AN APPEARANCE

General

Article 24 of the Lugano Convention provides that:

Apart from jurisdiction derived from other provisions of this Convention, a court of a State bound by this Convention before which a defendant enters an appearance shall havejurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

The corresponding provision of Regulation 44/2001 was in identical terms. In Regulation 1215/2012 a second sentence was added; it is referred to below. It is, however, most unlikely that the substance of that amendment could be read into the unamended text of Article 24. Articles 23 (which deals with jurisdiction agreements) and 24 comprise Section 7 of Title II, entitled ‘Prorogation of jurisdiction’.

Apart from those cases in which Article 22 provides for exclusive jurisdiction regardless of domicile, the court of a Lugano State before which the defendant enters an appearance - unless this appearance is made to contest the jurisdiction - has jurisdiction. Appearance confers jurisdiction even though there may be a valid and binding choice of court agreement for another court, for a voluntary appearance by the defendant in response to the summons will amount to a tacit variation of the agreement, as was held in Elefanten Schuh GmbH v Jacqmain.^[1] Appearance confers jurisdiction even though the case might otherwise have fallen under the insurance, or consumer contract, or employment contract provisions according to which the court would not have had jurisdiction. Appearance confers jurisdiction even though the defendant might have disputed the jurisdiction but elected not to do so. Appearance confers jurisdiction even though the jurisdiction actually invoked by the claimant, in response to which the defendant appears, is one of those otherwise proscribed jurisdictional rules referred to by Article 3 of the Convention. In sum, no injustice is done to defendants who choose to appear when summoned.

It is obviously otherwise, and completely different, where the court proceeds on the basis of a procedural rule of its law under which an absent defendant may have a legal representative person appointed to act on his behalf, the participation of that person being deemed to be that of the defendant. Whatever else may be true about such procedures, such a thing cannot be seen as the voluntary appearance of the defendant who, ex hypothesi, will not have tacitly accepted the jurisdiction for himself.

It has not been decided, and it is not altogether clear, whether the ‘defendant’ to whom Article 24 refers is confined to those who have a domicile in a Lugano State. Article 23, by seeming contrast, makes reference and provision which depends on domicile; Article 24 does not. There is, it is submitted, no reason why a domiciliary limitation should be read in: Article 24 should apply to any defendant who elects to appear. After all, if both parties are willing to resolve their dispute before the court of a Lugano State, and if Article 22 does not tie their hands, it is hard to see why they should be prevented from suing in the court on which they evidently agree.

Entering an appearance, rather than submission

The concepts of entering an appearance, and submission, are not always quite the same. According to English domestic law, it is possible to submit to the jurisdiction of a court by a contractual (or perhaps other) agreement to accept service of process. This will not, by itself, bring a defendant within Article 24. Whether a defendant has in fact entered an appearance must in principle be governed by the procedural law of the court concerned: an autonomous meaning may be given to entering an appearance,^[2] but precisely how and when this takes place is a matter of procedural law which the Convention does not govern. However, Article 24 cannot be read as extending to cases in which national law makes it unnecessary for an appearance to be entered.

It has been held, correctly, that a defendant who enters an appearance and so submits to the jurisdiction in respect of the claim set out in the writ does not necessarily submit to the jurisdiction in respect of other claims which, in the exercise of its procedural discretion, the court allows to be introduced by later amendment of the claim. One can see why this ought to be the answer. It would not seem right that a defendant who enters an appearance in response to a writ containing a narrowly-drafted claim, and who has no opportunity to reconsider his position if the claimant later seeks to add new claims, or if other parties seek to be added to the claim, should be treated as having entered an appearance to the enlarged writ. Or, to put it in homely terms, it does not seem right that a claimant should be allowed to use a sprat to catch a mackerel. On the other hand, a defendant does not have a right to pick and choose which claims in a writ he is willing to defend if he has no basis for, and does not make, a jurisdictional challenge:^[3] if he chooses to appear when summoned to an English court, he opens himself up to the full range of procedural possibilities for which English law makes provision. It may be that the best answer is that appearance gives the court jurisdiction over everything which finds its way into the writ, but that the court should exercise its rules of procedural law, and prevent new claims being added, where this is necessary to prevent the jurisdiction, originally established by the entering of an appearance, being abused.

Where a defendant has a ‘representative’ appointed for him by a court, that ‘representative’ then purporting to appear on his behalf he will not, without more, be seen as having entered an appearance for the purpose of the rule. It could hardly be otherwise when the fundamental basis of Article 24 is that of voluntary appearance by the defendant. Although the power of a court to make such an appointment in respect of a defendant who cannot be located and whose domicile is unknown is not necessarily contrary to European law," any suggestion that the defendant may thereby be treated as having entered an appearance would be quite wrong.

• [1] 150/80, [1981] ECR 1671. 2 C-l 11/09 Ceska podnikatelskapojiifovna as, Vienna Insurance Group v Bilas [2010] ECR 1-4545. 3 In relation to defendants domiciled in a Lugano State. 4 C-l 12/13 J v B EU:C:2014:2195; C-464/18 ZY v Ryanair EMC EU:C:2019:311, [2019] 1 WLR 4202.
• [2] It does not include the formal opposition of a claim for payment under the European Order Procedure, even if the opposition to that demand set out the substantive grounds on which the liability was contested. The two procedures are sufficiently distinct that participation in the one has no relevance to the application of the other: C-144/12 Goldbet Sportwetten GmbH v Sperindeo EU:C:2013:393, [2013] Bus LR 1115. 2 In England this is by acknowledging service of the claim form in accordance with CPR Pt 10, or if this is not done, by filing a defence: CPR r. 10.2. But if within 14 days of filing an acknowledgement of service the defendant makes an application to contest the jurisdiction, pursuant to CPR Pt 11, the acknowledgement of service ceases to have effect; the defendant will be entitled to file a further acknowledgement after the application has been dealt with: CPR r. 11(7); see Chapter 27. below. However, there are specialist bodies with adjudicatory jurisdiction, such as the Intellectual Property Office (see Future New Developments Ltd v B&S Patente und Marken GmbH [2014] EWHC 1874 (IPEC)), and the Competition Appeal Tribunal (see Deutsche Bahn AG v Morgan Advanced Materials pic [2013] CAT 18), in which the procedure for appearing, and for objecting to the jurisdiction, is much less clearly separated from the procedure for defending the claim on the merits. In relation to these bodies, a test of outward appearance may be the best guide. 3 At least, so long as this does not jeopardise the jurisdictional rules of the Convention: C-365/88 Kongress Agentur Hagen GmbH v Zeehaghe BV[1990] ECR 1-1845; C-68/93 Shevill v Presse Alliance SA [1995] ECR 1-415; c/C-159/02 Turner v Grovit [2004] ECR 1-3565. 4 Maple Leaf Macro Volatility Fund v Rouvroy [2009] EWHC 257 (Comm), [2009] 1 Lloyd’s Rep 475.
• [3] 2 C-112/13 A v В EU:C:2014:2195; C-464/18 ZTr Rj’anaZr Z)JC EU:C:2019:311, [2019] 1 WLR 4202. 3 C-327/10 Hypotecni Banka as v Lindner [2011] ECR 1-11453. 4 Including those incorporated by reference in Art. 4. It has been held that if a defendant does not object to a determination by the Intellectual Property Office, but when the hearing officer transfers the matter to the court for hearing then objects to the jurisdiction, this will have already counted as a submission to English jurisdiction: Future New Developments Ltd v B&S Patente und Marken GmbH [2014] EWHC 1874 (IPEC), [2015] FSR 349. This tends to suggest that the objection has to be made to the jurisdiction of the State as such, and that objection to a particular court is not enough.