If you are a defendant to proceedings and wish to challenge the jurisdiction of the English court but you also need to take steps in the proceedings, how can you do so without losing your right to challenge jurisdiction? This issue was examined in the case of Peretz Winkler and another v Angela Shamoon and others  EWHC 217 (Ch) (15 February 2016) (Bailii).
If a defendant wishes to dispute the court’s jurisdiction on the Acknowledgment of Service form he should tick the box stating: “I intend to contest jurisdiction”. The Defendant must then make an application to the court stating his intention to challenge within 14 days of filing the acknowledgment of service (CPR 11(1)).
In the case of Peretz Winkler the first claimant (C1) claimed that his deceased business colleague (S) had agreed to transfer certain shares in two BVI companies to C1 and/or to a Panamanian company controlled by C1 (C2). C1 and C2 brought proceedings against S's widow and daughter (D1 and D2). C1 and C2 also brought proceedings against S’s legal adviser, domiciled in Switzerland, who was a director of the two BVI companies (D3).
D1 and D2 took various procedural steps including applying to strike out the claim on the basis that no Particulars of Claim were served, applying to set aside default judgment and making a request for further information under CPR 18. They also filed acknowledgments of service (the “I intend to contest jurisdiction” box was ticked). The applications to strike out and to set aside default judgment were resolved by consent. All of these steps were taken before D1 and D2 applied to the court under CPR 11 to dispute the jurisdiction of the English court. When taking each of these steps D1 and D2 made it clear on the court documents themselves and in solicitors’ correspondence that such steps were being taken without prejudice to their right to challenge the English court's jurisdiction.
C1 and C2 argued that by taking these steps before making an application under CPR Part 11, D1 and D2 had submitted to the jurisdiction of the English court under Article 24 of the Brussels Regulation because each of them had entered an appearance in the proceedings and that entry of appearance was not to contest jurisdiction, alternatively if jurisdiction fell to be determined without regard to the Brussels Regulation, they had submitted under the domestic rules.
The court held that:
- A defendant who wishes to contest jurisdiction does not “enter an appearance” within the meaning of Article 24 by filing an acknowledgement of service which expressly indicates his intention to contest jurisdiction.
- D1 and D2 did not unconditionally enter an appearance by the filing of an acknowledgement of service, because of their explicit statements of intention to challenge jurisdiction on that form (ticking the relevant box).
- The question of whether a defendant has entered an appearance under the Brussels Regulation depends on whether there has been a submission to the jurisdiction in accordance with the local law.
- To state that a defendant has submitted to the jurisdiction, the Court must be satisfied that the defendant has unequivocally renounced his right to challenge jurisdiction.
- At each stage D1 and D2 consistently made it clear that such steps were without prejudice to their jurisdictional challenge. This is the very opposite of an unequivocal renunciation of such a challenge.
- It would be absurd if a defendant who wished to challenge jurisdiction was unable to set aside a judgment in default which had been obtained against it or seek to strike out the claim without being found to have submitted to the jurisdiction. The fact that D1 and D2’s application to set aside the default judgment obtained by C1 and C2 was allowed by consent shows that it was justified.
This decision highlights that where a defendant intends to challenge the court's jurisdiction he must ensure (as the defendants did in this case) that all procedural steps are expressly stated to be taken without submitting to the jurisdiction.