In the terminology now used in English law, the jurisdiction of a court may be disputed in two distinct senses. The defendant may contend that there is no, or no sufficient, basis for the claimant to say that the law gives the English court jurisdiction over him in respect of the claim. If that contention succeeds, the court should declare that it has no jurisdiction, and set aside any service which has been made because this is the necessary consequence of its decision on the jurisdiction question. This may be thought of as disputing the existence of jurisdiction; and it is provided for in CPR rule 1 l(l)(a). In this Chapter the primary focus is on disputing the jurisdiction in this sense, the CPR rule 11 (1 )(a) sense. A number of the strands have been examined at earlier points in this book; the topic is organised here for convenience and for completeness. The second manner in which a defendant disputes jurisdiction, by arguing that a court with jurisdiction should not proceed to exercise the jurisdiction which it has, is discussed later.

The procedure by which a defendant contests the jurisdiction of the court is set out CPR Part 11.[1] Even though service within the jurisdiction may have blatantly contravened the rules governing service, the service of an English claim form in circumstances which do not comply with the rules governing service will be merely irregular; and irregularity may, because it is ultimately only an error of procedure, be remedied by the court. Irregularity in service is a basis upon which the defendant may succeed in having service upon him set aside, and it is no more than that, but unless he does that, service, even if irregular, will establish jurisdiction.

Service outside the jurisdiction in circumstances where the necessary permission was not obtained is also irregular. Even if - as sometimes happens - a claim form is received by a defendant out of the jurisdiction, without any indication that permission was sought or obtained to serve it on him there, this is still only an irregularity, and, as such, inherently curable. It is sometimes said that in the case of service out without the necessary permission the irregularity is grosser and less curable, but that very point still goes to show that where service has been made, the court has jurisdiction. Every now and then a defendant will decide to ignore the delivery of a claim form on the (wholly misguided) ground that he should not have been served with it: this, when it happens, betrays an error of thought and analysis. When the claim form has been served upon him, whether this was done in conformity with the rules or otherwise, the defendant has been made, rightly or wrongly, subject to the jurisdiction of the English court.[2] It is therefore wrong to ignore it, or to assume that the flaw (if flaw there actually was) means that nothing with any legal significance has happened. The only proper response is to acknowledge service, which can be done without prejudice, and apply for the setting aside of the service and for an appropriate costs order. It may be bothersome, and not cost-free, to do it, but there it is.

A defendant who has been served may dispute the jurisdiction of the court over him. It could hardly be otherwise. The claim form will have been issued at the behest of, and frequently served by, the claimant or his legal adviser. It will have been stamped in and issued by the appropriate judicial office, but no judicial officer will have scrutinised it; still less will a judge have decided that it is a proper case to bring before the court. Even where the claim form is served out of the jurisdiction with the permission of the court there will have been no real judicial or other detailed investigation of whether the case is one in respect of which the court has, or should exercise, its power to grant permission to serve: all the court will have seen will be the claim form (or a draft), and the witness statement in support of the application for permission for service out of the jurisdiction. In no sense does the court determine whether it is jurisdictionally proper to bring the case against the defendant: it is the claimant, not the court, who invokes jurisdiction; it is the claimant who says why he is entitled to invoke the jurisdiction; and it is his act of service which gives the court the basis for its exercise of jurisdiction.

What happens next is up to the defendant. He may decide to fight the claim on its merits and not worry about jurisdiction. As soon as he takes a step in that direction he submits to the jurisdiction of the court. But he may instead ignore the service and the proceedings altogether; or may make an application to dispute the jurisdiction.

  • [1] Previously RSC Ord. 12, r. 8. 2 CPR r. 3.10. See Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874; Camera Care Ltd i’ Victor Hasselhlad .1 /? [ 1986] 1 FTLR 348; The Goldean Mariner [1990] 2 Lloyd’s Rep 215; The Oinoussin Pride [1991] 1 Lloyd’s Rep 126; Shiblaq v Sadikoglu (No2) [2004] EWHC 1890 (Comm), [2004] ILPr 826. 3 Chapter 24, above.
  • [2] There will be extreme cases in which this will not be the analysis, but they will be rare. Suppose that the envelope in which the claim form and accompanying papers had been torn open and most of the contents removed; suppose the claim form had been left out of the envelope by clerical error; suppose none of the English materials had been translated into a language which the defendant could understand, with the result that the papers were discarded without any idea what they were; suppose the document served had been printed with its pages almost all blank; and so forth. It may be that this falls so far short that will not count as service of the claim form at all. 2 In cases in which his response to the service of the claim form is ambiguous, it may be more difficult to say whether he has submitted to the jurisdiction. In principle the test must be one of objective appearance; see further below. 3 Nor does the court make a detailed examination of the merits of the claim: it gives judgment in default, under CPR Pt 12.
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