Appearance discounted as submission: Section 33 of the 1982 Act
If the defendant has done something which, looked at in isolation, would be taken to be a submission to the jurisdiction of the foreign court, statute may supervene to contradict this answer and provide that he is not to be taken to have submitted after all.
As a matter of logic, there are two steps to consider: first, whether the defendant submitted as a matter of common law definition, and second, if he did, then whether the Act relieves this of the consequences which would otherwise follow as a matter of common law. But it makes sense to concentrate on the second question, on section 33. For if it does apply, the question whether the common law would have considered the defendant to have submitted to the jurisdiction of the foreign court does not really matter.
Section 33 was enacted when the common law appeared to have taken an unduly doctrinaire view of what counted as submission: Parliament intervened to clarify the law for defendants, rather than wait for however long it would be before the House of Lords could put the common law back on the rails. Section 33 says:
33. Certain steps not to amount to submission to jurisdiction of overseas court (1) For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely (a) to contest the jurisdiction of the court; (b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted to arbitration or to the determination of the courts of another country; (c) to protect, or obtain the release of, property seized or threatened with seizure in the proceedings ...
Section 33 was the legislative response to Henry v Geoprosco International.^ In that case a defendant, who appeared before a Canadian court to apply for a stay of proceedings in favour of arbitration, was taken to have conceded the technical existence of jurisdiction, and hence to have submitted to the jurisdiction of the court. The Court of Appeal, in a decision quite unnourished by sense, reasoned that if a court is asked to exercise a jurisdictional discretion, the person making the application has already conceded that the court has jurisdiction, and has therefore submitted to it. This is the kind of thing that gets lawyers a bad name.
In coming to its conclusion, the Court of Appeal had turned its back on the realism of Denning LJ in Re Dulles Settlement (No 2),[1] in which he had said that he could not see that ‘anyone can fairly say that a man has voluntarily submitted to the jurisdiction of a court when he has all the time been vigorously protesting that it has no jurisdiction. If he does nothing and lets judgment go against him in default of appearance he clearly does not submit to its jurisdiction. What difference in principle does it make if he does not merely do nothing but actually goes to the court and protests that it has no jurisdiction? I can see no distinction at all.’ The view of Denning LJ was unanswerable then, and is unanswerable still.
Moreover, there seemed to be no useful differentiation to be made between defendants who appeared before a foreign court (i) to argue that it had no jurisdiction, (ii) to argue that it had been wrong to allow the claimant to invoke its jurisdiction and should now set service aside, or (iii) to argue that whatever jurisdiction it might have under its law, it should not exercise it. In each case the defendant is refusing to accept that the court should adjudicate the merits of the claim set out in the writ and is before the foreign court to make that point. All object alike to the court’s adjudication of the merits on jurisdictional grounds.
Shortly after the legislation, the House of Lords in Williams & Glyris Bank v Astro Dinamico' took a more nuanced view of the position of a defendant who was summoned before an English court, and aligned domestic law with the general guidance given by Section 33 in respect of appearances before a foreign court. It drew a distinction between submission to an English court for the purpose of determination of the limits of its exercisable jurisdiction, and submission to an English court to decide the substantive merits of the claim. In its opinion, to submit in the first sense was not to submit for the purpose of the second. This decision oriented the common law in a much more satisfactory direction; but in relation to foreign judgments, Parliament got there first.
For the purposes of Section 33 of the 1982 Act, it is the purpose for which the defendant appears which is decisive, and not the procedural nature of the steps which were actually taken to implement that purpose. If, for example, local law advises or requires a defendant to file a defence dealing with the merits of the claim prior to or together with any challenge to the jurisdiction, the filing of a composite defence is not necessarily inconsistent with the contention that the purpose of the appearance was only one of those set out in Section 33. And there is nothing odd or objectionable in this: if the foreign court is asked to make a jurisdictional order, it is perfectly rational for its law to require the defendant applying for the relief to indicate what his substantive defence actually is.
Section 33 protects defendants whose only purpose in making whatever appearance they do make is to seek relief on jurisdictional grounds, and who, when they appear, do no more than is necessary to support and prosecute their jurisdictional challenge or stay application. On the other hand, if the challenge is announced or made, but is then not prosecuted or proceeded with, it will risk being seen to have been waived,[2] and the submission by appearance to the writ will remain effective as a matter of English law.
No case has yet examined the precise meaning of ‘the jurisdiction’ which it must be the defendant’s purpose to contest. The issue should have arisen, and maybe did arise, in Desert Sun Loan Corp v Hill.16 In that casejudgment had been entered against a defendant by a court in Arizona. He then appeared to argue that the lawyer who had purported to represent him had authority neither to accept service of process on his behalf, nor to appear in court on his behalf, and that as a result the court had no jurisdiction over him, and that as a further result, the default judgment should be set aside. The application failed. The claimant sought to enforce the default judgment in England, and the material question was whether the defendant had submitted to the jurisdiction of the Arizona court. Roch LJ accepted that the defendant was protected from an allegation that he had submitted to the jurisdiction of the court by Section 33(1 )(a), and that no estoppel could therefore arise from the Arizona judgment on the issue of whether he had submitted in the earlier proceedings. The majority, however, did not refer to Section 33, from which it seems safe to deduce that they considered it to be inapplicable.
The question therefore arises whether the purpose for which the defendant appeared really was to contend that the court had no jurisdiction over him. A defendant who appears and who makes such an argument about the validity and scope of powers of attorney, rather than anything else, is certainly seeking to have the judgment set aside without regard to the merits of the claim. It is not quite so easy to say that his (only) purpose in appearing before the court can be said to be to contest the jurisdiction of the court. It is true that a decision on jurisdiction may be the consequence of the appearance, but the purpose might just be said to be to obtain a ruling on the true construction of a power of attorney. On clear balance, though, the view of Roch LJ is to be preferred.
If a defendant appears to argue that the case should be heard in another court within the same country, but does not challenge or object to the international jurisdiction of the courts of the country, it is less easy to argue that Section 33(1 )(a) is engaged. The answer is not made explicit in the section, but to concede that the courts of a country do have jurisdiction, and to confine the argument to which courts within that country do and do not have jurisdiction, is not the pattern of fact for which Section 33(1) was drafted. English private international law does not usually concern itself with a foreign court’s local or internal jurisdiction; and if a defendant appears to make an argument which does not really bear on the international jurisdiction of courts, Section 33(1 )(a) may be held not to apply. At present the issue remains open.
- [1] [1951] Ch 842. 2 [1984] 1 WLR438. 3 Or, equally, if it makes it ill-advised for the defendant not to enter his defence, because he will need to seek leave to do so at a later date. 4 Golden Endurance Shipping SA v RM A Watanya SA [2016] EWHC 2110 (Comm). 5 In Marc Rich & Co AG v Soc Italiano Impianti PA (No 2) [1992] 1 Lloyd's Rep 624, it was stated by the Court of Appeal that Section 33 was not intended to have a narrow or limited construction: see at 633. See also The Eastern Trader [1996] 2 Lloyd’s Rep 585.
- [2] Starlight International Inc v Bruce [2002] EWHC 374 (Ch), [2002] ILPr 617. 2 [1996] 2 All ER 847. 3 Part of the problem is the way in which ‘jurisdiction’ has a variety of meanings which it can be difficult to keep properly apart. 4 It is discussed, but not resolved, in JSC BTA Bank v Tiirkiye Vakiflar Bankasi TAO [2018] EWHC 835 (Comm). 5 In other, older, words, to argue about venue but not about jurisdiction. 6 Cf Future New Developments Ltd v B&S Patente und Marken GmbH [2014] EWHC 1874 (IPEC).
