Disputing the jurisdiction under CPR rule 11(1)(a): other points

It is convenient to gather together a number of points which relate to the procedure by which a defendant disputes the jurisdiction of the court over him.

First, the date which forms the point of reference. Where the application seeks an order that the original order granting permission to serve out be set aside, the material date for the purpose of deciding whether the original order should be set aside is that on which the order granting permission to serve out was made. This is because the application is designed to show, and obtain relief on the basis, that the order should not have been made, and this cannot logically be affected by events which have taken place^[1] since the original order was made. So the evidence must establish that as on the date of making the order granting permission to serve out (or the date of service if permission was not required), the order should not have been made. By contrast, for an application for a stay of proceedings, the significant date is the date of the hearing of the application; and though any change of circumstance after that date may justify a fresh application, it should not provide the basis for an appeal against the original order.

Second, there are several circumstances in which it is sometimes said that a court has no jurisdiction to make an order, but which do not involve disputing the jurisdiction of the court in the sense used here and which do not need to be raised under the procedure. This unfortunate state of affairs reflects the variety of senses in which the word jurisdiction’ is used in English legal discourse.

For example, in relation to banking cases, that whilst a court may have personal jurisdiction over a branch of a bank, it may lack subject matter jurisdiction over the claim brought (such as, for example, where an order is sought that another branch produce records for use in the English proceedings). It has been said that subject matter jurisdiction marks the extent to which the court can claim to regulate the conduct of those persons who are in law amenable to its personal jurisdiction. But these arguments appear, notwithstanding the language used, to be matters which go more to the discretion of the court, rather than being determinants of its technical jurisdiction; they do not dispute the jurisdiction of the court in the material sense. If it is said that a court has no jurisdiction to make a decree of specific performance, or order an account of profits, or make a third-party debt order in respect of a foreign debt, or grant a declaration, for example, none of these objections needs to be raised within the framework of CPR Part 11.

Third, a defendant who disputes the jurisdiction will sometimes seek an order that the action against him be dismissed. If the court declares that it has no jurisdiction and sets aside the service of the claim form, it does follow that the action sought to be commenced by that claim form has failed, and should be dismissed. But dismissal on jurisdictional grounds is not the same thing as giving judgment for the defendant on the substance of the claim; the decision of the court will not give rise to any form of estoppel in relation to the merits of the claim if the claimant should bring fresh proceedings in respect of the same claim. For the avoidance of confusion in the mind of a foreign court, it may be preferable that the court not make an order dismissing the action, or if it does, make very clear the basis on which this was done.

Fourth, English procedural law allows and requires a court, if called on, to give a ruling at this early stage on whether it has jurisdiction, so that if it does not have it, the defendant can be immediately released from the proceedings. In many other jurisdictions^[2] a court does not necessarily segregate and make a preliminary ruling on the issue of jurisdiction, but may decide instead to hear all the evidence and rule on jurisdiction at the conclusion of the hearing, going on to rule on the merits only if it rejects the jurisdictional defence. Though this may appear rather unsatisfactory, for a defendant who says that the claimant has no right to expose him to this peril may still find that he has been forced to participate in the trial all the way through to the end,' it has a practical sense in those cases in which the facts and matters which will determine the issue of jurisdiction also bear on the issues raised by the substance of the claim. If the claim arises out of a disputed contract, it may be inefficient for a court to make an interlocutory ruling about the effect of the contract for the purpose of jurisdiction and then, after another hearing, a conclusive ruling on much the same matters later on. But CPR Part 11 does not appear to give this power to an English court, and it is improbable that the power of case management can be stretched to do so either.

That said, there is nothing to prevent the parties and the court agreeing that the court, even on a jurisdiction application, should make certain findings to the ordinary civil standard which will then bind the parties if the case comes to trial on the substance. This cannot, however, be done without the agreement of all concerned; the court cannot insist that this is what it is going to do whatever the parties think: even active case management does not allow a court to go that far.

• [1] As distinct from having come to light. See Satfinance Investment Ltd v Athena Art Finance Corp [2020] EWHC 3527 (Ch). 2 That is, all the evidence placed before the court: Electric Furnace Co v Selas Corp of America [1987] RPC 23, Lubrizol Corp v Esso Petroleum Co £./
• [2] Both European and other common law. 2 A conclusion which is especially objectionable if there is no indemnification in respect of costs if the jurisdictional defence is upheld. 3 CPR r. 3.1(2) makes it clear that these powers do not extend to setting aside the Rules themselves. 4 For the power to apply for a stay outside that framework, see Texan Management Ltd v Pacific Electric Wire & Cable Co Ltd [2009] UKPC 46. 5 [2009] UKPC 46. The court rejected a construction of CPR r. 11 (1 )(b) which would have restricted it to disputes based on the exercise of discretion to permit service out (and CPR r. 11(1 )(a) to disputes based on the satisfaction of para. 3.1 of the Practice Direction). 6 CPR r. ll(6)(d).