Making no response to service of the claim form

The defendant may decide to ignore, or otherwise not respond to, service of the claim form upon him. If he does so, he does not object to the jurisdiction of the court, and without such a challenge being made, the court may proceed to give judgment in default of acknowledgment of service. As a matter of common law procedure, the court does not ask itself whether, if he had chosen to dispute the jurisdiction, the defendant might have succeeded. If the claim form has been served within the jurisdiction, or outside with permission (where this is required), and it appears that service has been effected, the court may proceed to give judgment against a defendant who chooses not to appear.

The common law, set out above, is partially modified in cases where the claim falls within the scope of the Lugano Convention. According to Article 26, as explained above,^[1] the court has a limited obligation to examine the basis of its jurisdiction if the defendant is domiciled in another Lugano State but does not appear. But with that single qualification, the court may proceed to give a default judgment. It will do so by giving whatever judgment it appears to the court that the claimant is entitled to on his statement of case.

Once judgment is entered against the defendant, the defendant is at a strategic disadvantage. For the judgment of an English court in a civil or commercial matter is, subject to limited objections, entitled to be recognised and enforced under Title III of the Lugano Convention. When enforcement is sought, but a challenge to it is raised, it is generally irrelevant and inadmissible that the jurisdiction of the original court could have been successfully challenged. The court has given judgment, and both the jurisdiction of the court and the merits of the matter are regarded as determined.

Disputing the basis for the court’s jurisdiction

At the point when proceedings are instituted, there may be uncertainty whether the conditions upon which the jurisdiction of the court, invoked by service of process, were satisfied. Four examples may be given of circumstances in which the jurisdiction of the court may be disputed.

First, suppose the defendant has been served in England as of right, but she will say that the Lugano Convention applies and means that she is not liable to be sued in England in respect of the claim, and that service should therefore be set aside.

Second, suppose the defendant has been served out of the jurisdiction without the prior permission of the court, as the claimant may indeed do if the Hague or Lugano Convention gives the court jurisdiction over the defendant in respect of the claim, but the defendant will say that the Convention applies but does not give the English court jurisdiction over her in respect of the claim.

Third, suppose the defendant has been served out of the jurisdiction without the prior permission of the court, as the claimant may indeed do if the Lugano Convention gives the court jurisdiction over the defendant in respect of the claim, but the defendant will say that the Convention does not apply to the claim, that the claimant was therefore required to apply for and obtain permission to serve the defendant out of the jurisdiction, and that because the claimant did not apply for that permission, service should be set aside and the claim dismissed on the ground that the court does not have jurisdiction to determine it.

Fourth, suppose the defendant has been served out of the jurisdiction of the court with the prior permission of the court, which the claimant was required to obtain, but the defendant will say that the court should not have given the claimant permission and should now revoke it, declaring that it has no jurisdiction, setting aside service, and dismissing the claim on the ground that the court has no jurisdiction to determine it.

The question which arises, as a matter of logic if not in practice, at this point is: how convincing a case does the claimant have to make when it comes to showing that the basis for jurisdiction, on which he relied and relies, is available? More precisely, when the defendant disputes jurisdiction by applying in accordance with CPR Part 11, and the claimant is called upon to justify the basis on which he says the court has jurisdiction, how strong or powerful a case does he have to make in showing that, when proceedings were commenced, he met the requirements which the law establishes? The answers are that in the first, second, and third cases, where the claimant relies on the Hague or Lugano Convention to justify the jurisdiction on which he relies to bring the claim, the claimant must have the better of the argument that the English court has jurisdiction. In the fourth case, where the English court will apply its traditional rules of jurisdiction, the claimant must show the court that there is a good arguable case that his claim satisfies the gateway to jurisdiction on which he relies.

As will be explained, the two formulations of ‘better of the argument that’ and ‘good arguable case that’ are not the same," and, more importantly, there is good reason for the difference. Recent case law which has experimented with their amalgamation has produced complexity where there should be simplicity, and confusion where there should be clarity, with the result that what ought to be a molehill has taken on the dimensions of a pretty substantial mountain.

• [1] See Chapter 17, above; for the form of evidence of service, see CPR r. 12.10 and Practice Direction, Paras 4.3, 4.5. 2 CPR r. 12.11. 3 See Chapter 33. below. 4 It may also be entitled to recognition in other States if so permitted by the law of such State.