Anything less than an express and wholly unequivocal intention to contest jurisdiction may be interpreted as a submission to the English jurisdiction.
The First and Second Respondents were companies incorporated outside of England. The Applicant intended to issue an application for a prohibitory injunction against all the Respondents in the English courts.
Prior to issue, the Applicant's solicitors contacted the Respondents asking them to provide details of solicitors in London who were authorised to accept service on their behalves. The London solicitors for the First and Second Respondents each responded that they had not been instructed to accept service of the application and reserved all their client's rights by letter, including as to jurisdiction.
The First and Second Respondents' solicitors later requested draft copies of the injunction application, with the First Respondent's solicitors writing to the Applicant's solicitor again reserving all their client's rights.
In November 2016, the application was issued. The Respondents submitted witness evidence opposing it. It was dismissed.
In December 2016, the Applicant issued a further application seeking an order that he be treated as having effected good service of his previous application in the English jurisdiction on the First and Second Respondents. This was opposed by the First and Second Respondents.
The Applicant's case was that the First and Second Respondents had submitted to the jurisdiction through their engagement in the first injunction proceedings.
The First and Second Respondents' case was that they did not submit to the jurisdiction for the following reasons:
- their solicitors had reserved their position as to jurisdiction in the correspondence prior to the first injunction application being issued;
- as a matter of law there could be no submission to jurisdiction as there was no process to which they could have submitted; and
- they had no real alternative but to defend the injunction application and they had argued that the Applicant had failed to establish a triable issue: that any reasonable observer would assume they had not accepted that proceedings would continue in the English jurisdiction.
The application was allowed. The First and Second Respondents had voluntarily submitted to the English jurisdiction:
- In the initial correspondence the despite purporting to reserve their position on the issue of jurisdiction, the First and Second Respondents had not definitively stated that jurisdiction would be contested
- To reserve the position is not the same as informing the Court or the other party that we are not properly here (Boyle v Sacker) or that the jurisdiction is in dispute (Williams & Glyn's Bank Ltd v Astro Dinamico Compania Naviera S.A); nor is the language sufficient to inform the Court that the Respondents intend to challenge (Esal (Commodities) v Pujara) or leave little doubt that jurisdiction is in issue (Global Multimedia v ARA Media)
- The Respondents failed to argue that the injunction should not be granted for want of jurisdiction.