Defendant applying to have claim struck out on substantive grounds
A defendant should not make an application to strike out the claim on substantive grounds at the same time as he contests the jurisdiction, even if he is convinced that the claim against him is wholly without merit. The question arises only in the case of service within the jurisdiction or service out without prior permission: where service was made out of the jurisdiction with permission, a contention that the merits of the claim are hopeless will form part of the argument disputing the jurisdiction which may contend that there was not a serious issue on the merits of the claim and that for this reason permission should not have been given.
But if service was made without permission, the strength of the merits of the claim will not form any part of the jurisdictional analysis; and the question is whether a defendant objecting to the jurisdiction may also ask for the claim to be struck out on the ground that the merits are wholly in favour of the defendant.
To ask the court to strike out the claim on the basis that it has no real prospect of success, or on the basis that the claim form discloses no reasonable ground for bringing the claim, is to ask the court to adjudicate the substance of the claim. There is more than a risk that this will be seen as an accepting and submitting to, the merits jurisdiction of the court. A cautious view, but a sensible one, would be that such an application should not be made until the procedure under CPR Part 11 has come to an end. In Eagle Star v Yuval, the court held that such an application might, in exceptional cases, not constitute a submission, but in general the making of such a combined application would appear to be needlessly risky. The defendant might contend that he is not asking the court to determine the merits, but to decide that the claim has no merits and that there is, therefore, nothing to adjudicate; but this is just playing with words. If the court is asked to examine the merits, it is hard to see why that does not amount to a submission to its jurisdiction to adjudicate those merits.
This view may be challenged by a passage in Ryanair Ltd v Esso ItaUana Sri,91 which seems to say that a defendant was permitted to challenge the jurisdiction of the court under the Brussels I Regulation (and, presumably, the Lugano Convention) by contending that the substance of the claim is hopeless, if he does so making it clear that the contention is advanced for the purpose of disputing the jurisdiction, almost as if there were a legal principle that there is no jurisdiction to adjudicate a groundless claim.[1] There is no such principle. The suggestion that one may dispute the jurisdiction of the court, already established by service without permission, on the ground that the claim is bound to fail is, it is submitted, nonsense. It is not a basis for asking the court to find that it has no jurisdiction to adjudicate the merits, or for asking the court not to exercise its jurisdiction to adjudicate the merits. It is an application for a quick and conclusive decision on the merits; it is not, strictly or in any other way, a challenge to the jurisdiction of the court. And although a court may prefer a defendant to make all his objections in one application, rather than make them sequentially, the fact remains that a claimant will be able to say of a defendant who has asked the court to take a view on the merits of the case that he has submitted to the merits jurisdiction of the court: how has he not? Of course, if there is a clear and unambiguous agreement that such a point will not be taken, it may be safer to proceed in this manner, but even then, the relevant question may be what a foreign court, called upon to recognise a judgment, may think. If the defendant does not wish an act to be misconstrued, the best thing is to not do it; if in doubt, don’t (as we are taught from the earliest age).
Application by the claimant for summary judgment
Where the defendant has acknowledged service and has made an application under CPR Part 11, it should not generally be open to the claimant to seek summary judgment under CPR rule 24.2 on the ground that there is no real prospect of the defendant successfully defending the claim." Although it is obvious that, if the defendant puts in evidence in answer to the application for summary judgment, this cannot be seen as submission on his part, it still seems contrary to principle that a defendant whose contention is that the court has no jurisdiction over him, or should not exercise jurisdiction over him, should be drawn into any form of investigation of the merits of the claim itself. There is nothing obvious in the rules to prevent an application from being made on these grounds, but the acknowledgment of service, the filing of which generally precedes an application for summary judgment under CPR Part 24, will lapse when the jurisdiction dispute comes to an end. It would be a welcome step for a court to rule that an acknowledgment of service which has been followed by an application under CPR Part 11 is not to be seen as an acknowledgment of service for the purposes of an application for summary judgment. At the very least, the court should hear the jurisdictional challenge before the application for summary judgment, even if the claimant has contrived to have his application listed for hearing earlier or at the same time. For even though there may be no defence to the claim when the matter is viewed as an English court would see it, it may be that there is a perfectly good defence when this is looked at by the court which ought to be allowed to exercise jurisdiction. If this results in the occasional unmeritorious defendant keeping a claimant waiting for judgment, that may be the price that English law pays for its perfectly logical decision to decide whether its courts have jurisdiction to decide the merits before that jurisdiction is exercised.
1
This general approach was approved by the judge in Speed Investments Ltd v Formula One Holdings ¿rrf[2004] EWHC 1772 (Ch), [2005] 1 WLR 1233, subject to the proviso that under CPR r. 24.4 the court does have power to hear an application for summary judgment against a defendant who has not acknowledged service.
- [1] It might just be different if he were to dispute the existence of special jurisdiction under Art. 7(1), say, by arguing that the claim that there was a contract, whose obligation required performance within the jurisdiction of the court, was hopeless because the contention that there was a contract was hopeless. But even that does not appear to work, for a matter may relate to a contract even though the opposite party denies that there is a contract at all. 2 Similarly, the claimant may apply for judgment in default if the defendant is debarred from defending, even though there may still be a challenge to the jurisdiction which has not been heard: JSC BTA Bank v Ablyazov [2010] EWHC 2219 (QB), though the overall fairness of the procedure will have to be considered carefully. 3 Of course, if he challenges jurisdiction on the ground that the claimant does not have a serious issue on the merits of the claim, and that permission to serve out should not therefore have been granted, he invites the court to make some form of examination of the merits, but only because this is an inherent part of the jurisdictional challenge to an order granting permission to serve out. 4 Though CPR r. 24.4 does allow the court power to hear an application for summary judgment against a defendant who has not made an acknowledgment of service, the present case is a rather particular one. 5 CPR r. 11(7).
