Disputing the exercise of jurisdiction: CPR rule 11(1)(b)

CPR Part 11 provides, in effect, that a defendant does not contest the basis on which the court has jurisdiction, but who seeks a stay of the proceedings before it, is permitted, and is generally required, to make this application under CPR Part 11, A stay of proceedings on forum non conveniens grounds is now applied for as though it were an objection to the jurisdiction of the court in the stricter sense; the fact that it is provided for within CPR Part 11 offers a cast-iron guarantee that the applicant, applying for a stay of proceedings, will not be taken to have submitted and waived objection to the jurisdiction of the court. This clarifies a point on which the common law had been less clear, or was actually different. The departure from previous law is deliberate, and results from the wording of CPR rule 11(1 )(b), which provides that a defendant who wishes to argue that a court should not exercise its jurisdiction may apply under CPR Part 11; if there was any doubt about it, it was removed by the decision in Texan Management Ltd v. Pacific Electric Wire & Cable Co Ltd.^M The order the court will make, if the application is successful, will be a stay of proceedings.

It is convenient that the application for a stay of proceedings be made within the framework of CPR Part 11. Prior to this, it was understood that a stay of proceedings was not a challenge to the jurisdiction of the court but an admission that the court had jurisdiction, followed by a request for procedural relief. It was not, therefore, properly brought within the predecessor to CPR Part 11,^[1] which provided only for applications disputing the jurisdiction of the court in strict sense. This was tricky for a defendant whose contention was that the court should find that it had no jurisdiction, or that if it did have jurisdiction it should stay the proceedings in any event. The suggestion that an application for a stay was an admission that there was jurisdiction - for unless a court has jurisdiction, there is nothing for it to stay - meant that there was some level of risk in running the two arguments together. CPR Part 11 sweeps that away. That said, if the actual basis for disputing the jurisdiction is that the court should not have given permission to serve out, making an application for a stay, whether concurrent, or subordinate or whatever else, cannot be based on coherent reflections. For if the court upholds the decision to allow service out of the jurisdiction, it will already have decided that England is the proper place to bring the claim; and if that is so, an application for a stay on the ground of forum non conveniens is useless.

It is therefore no longer necessary to debate the proposition that a defendant who applies for a stay submits to the jurisdiction of the court to rule on its jurisdiction, as distinct from its jurisdiction to decide the merits. CPR rule 11(7) makes it clear that a defendant who applies under CPR Part 11 does not submit to the jurisdiction by doing so. As long as the defendant restricts the application, and the steps taken within it, to what is appropriate to dispute the jurisdiction of the court, in either of the ways provided for by CPR rule 11(1), there is no problem. It is, of course, different if he invites the court to take (and act on) a view on matters which are not material to the question of jurisdiction or its exercise. The risk of being seen thereby to have waived the objection to the jurisdiction of the court, and so to have submitted, is still there.

If an application for a stay of proceedings is not made within the timetable set out in CPR Part 11, the court may still let it be made later. A challenge to the jurisdiction within CPR rule 1 l(l)(a), which is founded on the argument that the conditions for service to be made were not satisfied at the point at which the proceedings were instituted, will need to be made within that tight procedural timetable, and any failure to meet the deadlines, in any way which is more than marginal, may not be forgiven without a struggle. But an application for a stay of the kind provided for by CPR rule 11 (1 )(b) may be made outside that period if it was not unreasonable for it not to have been made earlier. In Texan Management Ltd v Pacific Electric Wire & Cable Co Ltd¹' the Privy Council accepted that one consequence of the otherwise wholly beneficial incorporation of applications for a stay within the framework of CPR Part 11 was that a court would need to be prepared to extend time^[2] to allow a stay to be made at a later stage in proceedings if, for example, the question whether a foreign court was clearly more appropriate than England for the trial of the action became clear only after the pleadings had developed.

• [1] RSCOrd. 12 r. 8. 2 The Messiniaki Tolmi [1984] 2 Lloyd’s Rep 266. 3 It happens, though: Traxis Europe SA v Sodexmines Nigeria £/
• [2] Or even to entertain an application under the inherent jurisdiction (i.e. outside CPR Pt 11) of the court. 2 CPR r. 24.2. 3 CPR r. 3.4. 4 In the light of Seaconsar Far East Ltd v Bank Markazi Jomhouri Island Iran [1994] 1 AC 438, such an argument can in essence be advanced as part of the jurisdictional challenge that permission to serve out should not have been given. A separately founded application appears to offer nothing of value. 5 [1978] 1 Lloyd's Rep 357. See also The Messiniaki Tolmi [1984] 2 Lloyd’s Rep 266. Note, though, that in Capital Trust Investments Ltd v Radio Design TJ AB [2002] EWCA Civ 135, [2002] 2 All ER 159, and in this respect, following Patel v Patel [2000] QB 551, an application for a summary judgment for the defendant, if the court refused to stay proceedings under Arbitration Act 1996, Section 9 did not amount to the taking of a step in the proceedings, because the application was expressly subordinate to the stay application, and was justifiable in terms of case management as well. 6 [2013] EWCA Civ 1450, [2015] 1 All ER (Comm) 152, [20].