Challenging the courts jurisdiction

Once a Defendant has been served with the claim, he can dispute the jurisdiction of the courts.

To dispute jurisdiction, the Defendant needs to file an Acknowledgment of Service and on that form they must indicate that they intend to dispute jurisdiction (CPR 10.1(3)(b). The Defendant then has 14 days after filing their Acknowledgment of Service to make an Application to the Court to challenge the jurisdiction.

There are two grounds for making the application, being a dispute that the court has any jurisdiction to hear the case or an acceptance that the court has jurisdiction but requesting that the court do not exercise its jurisdiction on the grounds of forum non conveniens (where the court acknowledges that another court where the case might have been brought is a more appropriate venue for a legal case). If the defendant fails to make their application, then he is deemed to have submitted to the court’s jurisdiction. There is no requirement to file a defence before the hearing to deal with the application to challenge the court’s jurisdiction hearing.

 

Challenging the jurisdiction recent cases

There have been two recent cases which have concerned challenges to the jurisdiction of the English Courts and the first of which is Pitalia v NHS Commissioning Board [2022] EWHC 1636 (QB).

In this case, the Claimant had made an application to rectify an error they had made in serving an unsealed copy of the Claim Form and the Defendant had made an application to rectify an error that they had not indicated in their acknowledgment of service or their application to strike out the claim that they also disputed the Courts jurisdiction.

The District Judge at first instance had refused both applications. On appeal, whilst it was held that the Court had been correct to refuse to either dispense with service or extend time for service retrospectively. However, in relation to the Defendant’s Application, the Appellant Court were prepared to use their discretion to treat the application for strike out as also an application for an order that the court did not have jurisdiction to hear the claim. The reason that the Court was willing to use its discretion in relation to the Defendant’s Application was because the Defendant had informed the Claimant in correspondence that it disputed jurisdiction and it would not have required much amendment to the existing application and witness statement for strike out to also include the jurisdictional challenge.

The other recent case is Golubovich v Golubovich [2022] EWHC 1605 (Ch) concerned claims being brought both in the English Courts and in Russia. The brief background was that the English Court had granted permission to serve a Part 20 claim in Russia and that separately the Part 20 defendant began proceedings in Russia and disputed the English Court’s jurisdiction to hear the Part 20 claim.

The Part 20 Defendant was appealing the decision of the Deputy Master who had dismissed her application disputing the jurisdiction of the court and seeking to set aside the order granting permission to serve in Russia. On appeal, it was held that (i) it was not an abuse of process for the Part 20 Claimant to argue (following a previous anti-suit injunction application) that England was the natural forum for his Part 20 claim; (ii) that the Master had not pre-judged the forum question; and (iii) that the Master had not misevaluated the factors pointing to Russia as the competing natural forum. The anti-suit judgment did not consider all the issues relevant to jurisdiction in England because it was a narrower judgment on the Russian proceedings and that the appellant court’s evaluation of the competing factors between the English and Russian Courts would have led to the same decision as that of the Deputy Master. The ‘decisive factor’ was the relationship between the main and Part 20 claims as the court has already accepted jurisdiction in the main claim.

If you intend to dispute jurisdiction, it is important that you indicate your intention to do so on the Acknowledgment of Service and then make your application with evidence in support within 14 days, you can combine this application with one to strike out the claim but make sure that the application is clear on both counts. If you are applying to challenge jurisdiction on the grounds of forum non conveniens, then the Court will look at connecting factors.