Proceedings were issued against and served on a Nigerian defendant. The defendant applied to challenge the jurisdiction of the English courts. Before that application was made, it made an application for the disclosure of bank records under section 7 of the Bankers' Book Evidence Act 1879. One of the issues in this case was whether the defendant had submitted to the jurisdiction of the English courts by making the application for disclosure. At first instance, the judge held that the defendant had submitted. The Court of Appeal has now reversed that finding.
The Court of Appeal noted Patten J's view in SMAY Investments v Sachdev  that unequivocal conduct is needed to demonstrate a waiver of a challenge to jurisdiction where a defendant has acknowledged service but the time for challenging jurisdiction has not yet expired (a defendant will not be taken to have submitted to the jurisdiction of the court merely because he has acknowledged service for the purpose of disputing the court's jurisdiction to try the claim). It held that the same approach should be adopted where an application challenging jurisdiction has been made but not yet heard.
It further held that there was no such unequivocal conduct here. Instead, the documents which the defendant sought would have been relevant to its application challenging jurisdiction.