Disputing the Jurisdiction of the English Courts: Key Legal Considerations and Recent Developments

Introduction

Jurisdiction is often one of the first and most critical issues in cross-border litigation. Where proceedings are initiated in the English courts, defendants may have grounds to challenge jurisdiction, either because the dispute can be more appropriately heard elsewhere or because of procedural irregularities. Understanding the rules governing such challenges, particularly under Part 11 of the English Civil Procedure Rules (“CPR”), is essential for businesses and legal practitioners involved in international disputes.

This article explores the legal framework for disputing jurisdiction, the procedural steps involved and key developments following Brexit. It also examines recent case law and the practical implications for businesses managing cross-border legal risks.

Grounds for Challenging the Jurisdiction of the English Courts

A defendant may challenge the jurisdiction of the English courts on several grounds, including:

(a) Defective Service of Proceedings

A jurisdictional challenge can be based on improper service of a claim form. The CPR sets out strict requirements for service both within and outside the jurisdiction. If service has not been properly executed, the defendant can apply under CPR 11 to contest the court’s authority to hear the case. For example:

If the claim form was not served within the prescribed time limit, the court may declare it has no jurisdiction.
If service was attempted but did not comply with procedural rules, the claim may be struck out.

The case of Hand Held Products, Inc v Zebra Technologies Europe Ltd [2022] EWHC 640 (Ch) clarified that if a defendant claims that service was ineffective, they are not necessarily required to challenge jurisdiction under CPR 11 but may instead rely on CPR 7.7(3).

(b) Forum Non Conveniens (More Appropriate Forum)

Even if service is valid, a defendant may argue that the case should be heard in a different jurisdiction. The doctrine of forum non conveniens allows the English court to decline jurisdiction if another forum is clearly the more appropriate forum for the resolution of the dispute.

The test for forum non conveniens, established in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, involves two stages:

Defendant’s Burden: The defendant must demonstrate that another jurisdiction is clearly the more appropriate forum for the dispute.
Claimant’s Burden: If the defendant succeeds, the claimant may still resist the challenge by showing real risk that it will not receive justice in the alternative forum.

(c) Exclusive Jurisdiction Clauses

Contracts often include jurisdiction clauses specifying which courts have authority over disputes. If an agreement contains a clause granting exclusive jurisdiction to the courts of another country, the English court will generally uphold absent exceptional circumstances.

Under the Hague Convention on Choice of Court Agreements 2005, the UK must respect exclusive jurisdiction clauses agreed with contracting states. However, following Brexit, the UK is no longer bound by the Recast Brussels Regulation, which previously provided for automatic recognition and enforcement of jurisdiction clauses within the EU.

(d) Arbitration Agreements

Where a dispute falls within the scope of an arbitration agreement, the defendant may apply for a stay of proceedings under Section 9 of the Arbitration Act 1996. In such cases, CPR 11 does not apply, and the defendant must follow the specific procedure under CPR 62.

Procedural Requirements Under CPR 11

Challenging the jurisdiction of the English court requires strict adherence to CPR 11, which governs how and when a defendant must apply:

Acknowledgment of Service (CPR 10)
- A defendant must file an acknowledgment of service within 14 days of being served with the claim form.
- The acknowledgment must indicate an intention to dispute jurisdiction.
Application to Challenge Jurisdiction
- The defendant must apply within 14 days of filing the acknowledgment of service.
- The application must set out the grounds for disputing jurisdiction, supported by evidence.
Hearing and Judicial Consideration
- The court will assess whether jurisdiction is properly established.
- If the challenge is successful, the court may strike out the claim or order a stay of proceedings.

Failure to comply with CPR 11 may result in the defendant being deemed to have submitted to the jurisdiction of the English court.

Impact of Brexit on Jurisdictional Challenges

Brexit has significantly altered the legal landscape for jurisdictional disputes involving UK and EU parties:

End of the Recast Brussels Regulation and Lugano Convention:
- The UK is no longer part of the Lugano Convention 2007, meaning jurisdictional disputes involving EEA countries are now governed by common law principles rather than EU regulations.
The Hague Convention 2005 as the Default Regime:
- The Hague Convention applies where contracts contain exclusive jurisdiction clauses.
- However, it does not cover non-exclusive jurisdiction clauses, leading to uncertainty in some cases.
Enforcement of Foreign Judgments:
- The lack of an automatic mechanism for enforcing UK judgments in the EU may increase the complexity of cross-border litigation.

The UK has also joined the Hague Judgments Convention 2019, which will come into force on 1 July 2025, improving the process for recognition and enforcement of judgments between contracting states.

Recent Case Law Developments

Several recent cases have clarified key aspects of jurisdictional challenges:

Public Institution for Social Security v Ruimy [2023] EWHC 177 (Comm): The court refused to stay proceedings in favor of Switzerland, emphasizing the importance of avoiding inconsistent judgments in multi-jurisdictional disputes.
Lungowe v Vedanta Resources Plc [2019] UKSC 20: The Supreme Court found that England was not the appropriate forum for claims against a Zambian defendant, despite the presence of a UK-domiciled parent company.
Punjab National Bank (International) Ltd v Srinivasan [2019] EWHC 3495 (Ch): The High Court set aside permission to serve out of the jurisdiction, finding that England was not the most appropriate forum given ongoing proceedings in India and the US.
Joyvio Group Co Ltd v Moreno [2024] EWHC 2493 (Comm): The Commercial Court granted a stay in favor of Chile, highlighting the need for strong connections to the English jurisdiction.

Conclusion

Disputing the jurisdiction of the English court is a complex but essential area of litigation, particularly in cross-border disputes. With the evolving legal landscape post-Brexit and recent case law developments, businesses must carefully navigate jurisdictional challenges to protect their legal interests.