Submission and steps which may convey a mixed message
English procedural law is in this respect easy and clear, and in systems of procedural law which are structured in a similar way, Section 33 should be easy to apply. In England, a challenge to the jurisdiction of the court will be heard and finally determined before the defendant is required to take any step towards defending the merits of the claim. The English approach to submission in general, and Section 33 in particular, appears to assume that this is the model which applies in foreign courts as well.
But other courts may order their procedural law differently, and when they do, the application of the English law of submission, and of Section 33, can be problematic. It should not for a moment be thought that the structure of English procedural law is preferable to that found in other places. A foreign court may very quickly see that the issues which go to jurisdiction - whether a contract was made, for example - will also determine the substance of the claim. The idea that a court should hold a set of hearings to answer certain questions once, only to hold a second set of hearings which cover much the same ground, but this time for a non-jurisdictional purpose, does not strike everyone as sensible. A court which says that a defendant may certainly challenge the jurisdiction if he files a motion to do so and brings it on for hearing, but that his doing so does not arrest progress towards the trial of the merits, may not be doing things the English way, but it organises its business in a perfectly sensible manner. When the English rules of private international law of submission, including Section 33, come face to face with such procedures, it is not the fault of the foreign system that it can be hard to answer the questions which English law asks. It may be that the questions are not apt.
Three patterns of foreign procedural law may be used for illustrative purposes. First, in some jurisdictions a defendant may issue a motion for the case to be dismissed on jurisdictional grounds, but in the meantime, and before the motion is called on for hearing, find that he is subjected to active case management by way of preparation for the trial of the merits. He may be required to give discovery of documents, to allow his employees or witnesses to be subjected to deposition, and so forth. All this may be demanded of him, even though the motion to dismiss on jurisdictional grounds has been issued and has not yet been dealt with. The question is what the defendant can safely do without being held to have submitted to the jurisdiction of the foreign court.
Second, in some jurisdictions a court may decide to deal with the defence that it has no jurisdiction only at trial, not separately or in advance, and that it will rule on the jurisdictional defence in its judgment, and not in advance of the hearing. The defendant may then participate fully in the trial, always maintaining his jurisdictional objection as his primary defence. If he does so, and his defences are rejected when the foreign court gives judgment in favour of the claimant, the question is whether he submitted as a matter of common law, and if he did, whether he is protected by Section 33(1) from having been held to submit.
Third, a foreign court may deal with and reject a challenge to its jurisdiction, and then hear the merits of the claimant’s claim, the position being that some form of appeal, on jurisdiction as well as merits, may be brought later before an appellate court. If the defendant participates in the hearing of the merits of the claim, but still
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There have been very occasional cases (for example, Conversant Wireless Licensing Sari v Huawei Technologies Co Ltd [2018] EWHC 1216 (Pat)) which challenge this, and a defendant has been ordered to file a defence to the merits of the claim before the final decision on jurisdiction with the claimant undertaking to the court not to argue that this amounted to submission or the waiver of a jurisdictional objection. Measured against the approach of the Court of Appeal in Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2012] EWCA Civ 169, [39]—[41], and the risk that a foreign court may still interpret this as submission, this does not seem right, even if (in the context of intellectual property disputes) it would make sense from a managerial perspective.
aspires to appeal on jurisdiction (and makes it clear that this is his intention), the question is whether he submits as a matter of common law, and if he does, whether he is protected by Section 33(1) from having been held to submit.
The authorities are not yet as clear as one might hope for, but a court should be guided by basic common law principles, such as waiver and estoppel by representation. If a defendant who had raised a jurisdictional defence represents that he has abandoned it, he should thereafter be taken to have submitted to the jurisdiction. As has been said, if a defendant loses on jurisdiction and then goes on - elects to go on - to defend the merits, it is easy to interpret what he is saying and doing as abandoning the jurisdictional objection.[1] If the true position is that he does not appear to have abandoned it, and that his outward conduct does not suggest that the defence, originally raised, is now no longer being pursued (rather, that he is pursuing it within the framework of the procedural law of the foreign court), then he has not submitted, even if it is also true that he has participated in proceedings directed to the substance of the claim. That, at least, should be the principle of the matter, to be applied to the individual facts of the case and procedures of the foreign court.
If this means that a defendant may be able to have his cake and eat it too - to accept the victory if he wins on the merits, but if he loses, to appeal on jurisdiction, and if he loses on jurisdiction, to claim to be not bound by the judgment at all - that is just the way it is. It was not the defendant who chose the court into which he was haled, and if the procedural law of that court is organised in such a way that the defendant is allowed to object to the jurisdiction while also trying to win on the merits of the dispute, then as long as he is able to say that his original (main, principal) purpose in appearing was to contest the jurisdiction, unless he appears to have abandoned that contest, and brought that purpose to an end, he should still be safe from an accusation that he has submitted to the jurisdiction of the court. If the defendant is doing everything he reasonably can to keep his jurisdictional challenge alive and viable, it is hard to think Parliament did not intend to extend Section 33 to him.
As it was recently explained: ‘Pleading both to the jurisdiction and to the merits would not have been an acceptance that the [foreign] Court had jurisdiction and was not something which was “only necessary or only useful if the objection to the jurisdiction has been waived”. It was a response to the requirement of the foreign court that jurisdiction and merits be dealt with together. Where the foreign court has such a requirement it does not seem to me appropriate to treat a party who has made it plain that he objects to the jurisdiction as having submitted to it on the footing that he could, contrary to the requirement of the foreign court, have failed to plead to the merits.’ It is hard to improve on that.
For all that, even if the law is approached on this pragmatic basis, it will not always be clear how to advise a defendant who finds himself manoeuvred into taking steps in the foreign proceedings on the merits of the dispute, as a result of which he may be accused of having cast away his right to argue that he has not submitted to the jurisdiction of the foreign court. There is no guarantee to be given, save to say that in such cases, all contemporary correspondence, and pleadings filed with the foreign court, which make it objectively clear that participation has the aim of keeping the jurisdictional challenge alive for hearing and purposeful for appeal thereafter, should be kept, for they may well be helpful,[2] even decisive. Above all, the English court will need to be made to understand the practicalities of the situation in which the defendant found himself, and should be slow to find that there was a submission where the defendant made it as clear as he could that he was not giving up his jurisdictional objection. There will be limits, of course: in England, for example, it would be impossible to maintain an objection to jurisdiction if, after the final stage in the CPR Part 11 procedure, the defendant takes a step in the proceedings. But the current state of authority appears to be one of tolerant understanding of the difficulty in which a defendant may have found himself; it does not favour an approach which looks for the slightest foot fault in order to brand it as a submission.
- [1] JSC BTA Bank v Tiirkiye Vakiflar Bankast TAO [2018] EWHC 835 (Comm) (continuing to defend after failure to lift attachment). 2 Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [67].
- [2] One remote possibility might be to bring proceedings in an English court for a declaration that he will not be held to have submitted. But the chances of getting this heard in time will be small, even if the court is inclined to cooperate. Another might be to resist recognition of the judgment, if he is held to have submitted, on the ground that the lack of an opportunity to make a jurisdictional challenge without submission involves a breach of the rules of natural justice. But there is no strong basis for this in decided cases, even if the argument is not wholly far-fetched. Cf Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1 SCR 897. 2 Lubrizol Corp v Esso Petroleum Co Ltd [ 1992] RPC 467, 470: a splendidly clear and direct judgment, which inspires the approach proposed here. 3 AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, [2013] 1 WLR 1889. The judge at first instance had said, very acutely, that the defendants had not submitted to the foreign court because it could not be said of them that they had failed in their jurisdictional challenge but had gone on to fight the claim on its merits. Neither were they trying to have their cake and eat it. They were trying to prevent the exercise of jurisdiction by the foreign court, and it was absurd to suggest that they were somehow submitting to its jurisdiction. 4 See, for example, Commonwealth of Australia v Peacekeeper International FZE UAE [2008] EWHC 1220 (QB) (interpleader applicant in proceedings before the English court does not submit to court for purpose of claim against him). It is not clear that this is wholly consistent with Stephenson Harwood LLP г Medien Patentverwaltung AG [2020] EWCA Civ 1743, but stakeholder proceedings are a very peculiar form of action. 5 For this may depend upon the accident of local procedural law.
