Disputing the jurisdiction: the Hague Choice of Court Convention

It has yet to be considered which of these approaches applies to the case in which jurisdiction is asserted over a defendant when it is asserted that the 2005 Hague Convention gives jurisdiction to the English courts (but the defendant denies that it does), or when a defendant disputes the jurisdiction of the English court on the basis that there is a jurisdiction agreement for a Hague State. The matter is to be assessed as one of principle.

The reason why the traditional ‘good arguable case’ standard was not applied to the Lugano Convention or the Brussels I Regulation was that it was wrong in principle for an English court to reason that although the courts of another Lugano or Member State had jurisdiction, and the English court did not, the English court could still accept that it had jurisdiction and so prevent the courts of the other States from taking jurisdiction. That, it was submitted, would have called into question the practical effect of the Convention or the Regulation.

On the one hand, there is no danger of that being an issue or a problem if an English court is asked to take jurisdiction in accordance with Article 5 of the Convention, on the basis that there is a choice of court for the English courts. Its doing so has no impact on the potential jurisdiction of any other court; it does not interfere with any other court or any other judge. But on the other hand, the exercise of jurisdiction under the 2005 Hague Convention is not controlled or supervised by a requirement that England be the proper place to bring the claim, because no permission is required to serve the defendant out of the jurisdiction. That certainly weakens the argument for treating this case as one to be governed by the traditional rules which would require only a good arguable case for jurisdiction.

Suppose a case in which the defendant disputes the jurisdiction by pointing to a choice of court agreement for, say, Singapore. Could it really be correct, and consistent with the Convention, for the English court to accept that it had jurisdiction because there was a good arguable case that, for example, the formality requirements in Article 3 of the Hague Convention were not fulfilled?

The conclusion to which this points is that for an English court to exercise jurisdiction on the basis of Article 5, the claimant must have the better of the argument on the

DISPUTING THE JURISDICTION OF THE ENGLISH COURT application of Article 5. When an English court’s exercise of jurisdiction is challenged by a defendant who points to a jurisdiction agreement for a Hague State, the English court should require the claimant to have the better of the argument on the question whether Article 6 applies to require the English court to stay or dismiss its proceedings.

Disputing the jurisdiction: procedure

The defendant may choose to challenge the legal foundation for the jurisdiction which the claimant has invoked or purported to invoke.^[1] In doing so he will make a formal acknowledgment of the jurisdiction of the court which results from the fact of service, but will contend that the court should declare there to be no proper basis for that jurisdiction and grant the relief which flows from this. If the application succeeds, the court will declare that it does not have jurisdiction. But if the court dismisses the defendant’s application disputing its jurisdiction, the original acknowledgment of service lapses; what the defendant may then do is examined below.

Although the application to dispute the jurisdiction is that of the defendant, the burden of proof lies on the claimant who has to establish, to the appropriate standard, that the jurisdiction of the court is available to him. It could not be correct, for example, that the claimant obtain permission to serve out of the jurisdiction on an application without notice to the intended defendant, and, by doing so, put the defendant, who has not been heard, onto the back foot. The fact that permission was granted to the claimant in the first place is largely irrelevant at this point. It leaves no footprint; no onus is placed upon the defendant who applies to have the permission set aside; the application is in effect a rehearing of an application for permission, with the onus lying on the party who needed the permission in the first place. The court is not inhibited from discharging or varying the order, and for which the claimant now in substance (if not in form) reapplies, by reason of the fact that it has already been made. The burden of proof is equally on the claimant where he has served the defendant without leave.

CPR Part 11 provides that a defendant wishing to dispute the court’s jurisdiction to try the claim, or to argue that the court should not exercise its jurisdiction, must first acknowledge service of process in accordance with CPR Part IO:¹ this is done withoutprejudice to any objection which may be taken to the jurisdiction.^[2] The defendant must then apply, within 14 (or, in the Commercial Court, 28) days of acknowledging service, for relief pursuant to CPR Part 11.

If, instead, the defendant does not dispute the jurisdiction of the court in the strict sense, but wishes the court to not to exercise the jurisdiction which it has, he applies within the framework of CPR Part 11 for a stay of proceedings. He may do so on the basis of a plea of forum non conveniens, that there is a court in another country which is clearly more appropriate than England for the trial of the action, as a result of which the interests of justice favour the suspension of the exercise of jurisdiction by the English court. He may apply for a stay of proceedings by reference to Article 28 of the Lugano Convention, on the ground that a court in another Lugano State was seised of an action in related proceedings prior to the seisin of the English court and that the court should, in the circumstances, order a stay. But a stay of proceedings by reference to the Convention is applied for under CPR Part 11, in exactly the same way (and within the same time limits) as jurisdictional relief sought by reference to the common law rules.

• [1] He may also allege that service was irregular. 2 But one which may not be held against him if he proceeds to make his challenge to the jurisdiction: CPR r. 11(3). 3 If he is successful in relation to part, but not all, of the claim, the claim form will be amended by deletion. 4 Artlev AG v Almazy Rossii-Sakha (8 March 1995), Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm), [2013] 2 Lloyd’s Rep 104, [10]; Satfinance Investment Ltd v Athena Art Finance Corp [2020] EWHC 3527 (Ch). Also Recovery Vehicle 1 Private Ltd v Industries Chimiques du Senegal [2020] SGCA 107, [50]. 5 IPf/l Records v Visions Channel 4 Ltd [1983] 1 WLR 721. 6 Or, naturally, to argue both in the one application. 7 CPR r. 11(2). According to IBS Technologies (Pvt) Ltd v APM Technologies SA (No 1), 7 April 2003, it is not a requirement that the defendant tick the box on the acknowledgment of service form which indicates his intention to dispute the jurisdiction, so long as the application is made within the time fixed by CPR Part 11, though this cannot be recommended as a sensible way to proceed. On the other hand, if the box is ticked, indicating that the defendant will challenge the jurisdiction, he must then get on and actually do it, or else he will be taken to have waived his challenge: Maple Leaf Macro Volatility Master Fund vRouvroy [2009] EWHC 257 (Comm), [2009] 1 Lloyd's Rep 475, [186]-[l87].
• [2] CPR r. 11(3). 2 CPR r. 11(4). For the position in the Commercial Court, CPR r. 58.7(2). In the Commercial Court, a written agreement between the parties to extend time must be notified to the court: Griffin Underwriting Ltd v Varouxakis (The Free Goddess) [2018] EWHC 3259 (Comm). 3 The Alexandras T [2013] UKSC 70, [2014] 1 All ER 590. 4 For the power of parties to agree to an extension of time, see CPR r. 3.8(3),(4). For the suggestion that a case may be commenced in the Chancery Division of the High Court, rather than in the Commercial Court where it naturally belongs, for the purpose of forcing the defendant into a shorter time period to make the application than would have been the case in the Commercial Court, see SET Select Energy GmbH v F&M Bunkering Ltd [2014] EWHC 192 (Comm), [2014] 1 Lloyd’s Rep 652: in such circumstances, the propriety of overlooking a small delay in meeting the deadline is obvious. 5 CPR r. 10.3. 6 CPR r. 6.35(2). 7 CPR r. 6.35(3).