The Commercial Court has clarified that in the absence of an important public interest, it will not normally order a party to incur a substantial burden in progressing a case while a jurisdiction challenge is pending.
In Arcadia Energy (Suisse) SA v Attock Oil International Ltd (2016, unreported), the claimants sued their former officers for allegedly diverting money and transactions to themselves. The officers were domiciled in Switzerland. They challenged the jurisdiction of the English court, and the claimants agreed to extend the deadline for their acknowledgement of service to allow the challenge to be finally determined. The defendants were unsuccessful in the Commercial Court and Court of Appeal, but applied for permission to appeal to the Supreme Court. The claimants asked the Commercial Court to order the defendants to serve their defence to the particulars of claim, without prejudice to the outcome of the jurisdiction challenge, to minimise delay.
The court refused the application. It was possible to require steps to be taken pending the outcome of a jurisdiction challenge, and sometimes there was an important public interest in doing so, but not in this case. The particulars of claim ran to 85 pages. Pleading a full defence would be a substantial burden to the defendants that would waste time and money if their jurisdiction challenge succeeded. Alternatively, they might simply put in a holding defence, in which case the court would have no effective sanction in the absence of a submission to the jurisdiction, and the order would be of little use. A delay of a few months for the Supreme Court to consider the appeal did not justify ordering the defendants to submit their defence.
Jurisdiction challenges can be a source of frustration and delay for claimants. This decision shows that the court will only intervene to cut short that delay in unusual circumstances, the main factor being whether there is an important public interest in doing so. Other factors the court appears willing to take into account include the length and complexity of the task the application seeks to impose on the respondent, the burden of costs and time that would be involved, the likely utility of the order, and the length of the delay that would be caused by awaiting the outcome of the jurisdiction challenge; but it seems that the degree of the public interest in avoiding delay will usually be decisive.