The High Court has held that a defendant did not submit to the court’s jurisdiction despite seeking to have its (conditional) summary judgment application heard before its application to stay the court proceedings in favour of arbitration: Deposit Guarantee Fund for Individuals v Bank Frick & Co AG [2021] EWHC 3226 (Ch).

It was common ground between the parties that where a party applied for summary judgment, and that application was expressly conditional on its application to stay the proceedings not succeeding, that would not deprive the party of the right to seek a stay. However, the claimant argued that, by seeking to have the summary judgment application heard first, the defendant had taken a step in the substantive proceedings, and was therefore precluded from objecting to the court’s jurisdiction to hear the claim pursuant to s9 of the Arbitration Act 1996.

The High Court rejected that argument, finding also that the defendant’s application to stay the court proceedings in favour of arbitration should be heard before its alternative summary judgment application.

This decision may be of some comfort to defendants seeking to challenge the court’s jurisdiction, while maintaining an alternative argument that they are entitled to summary judgment. As a practical matter, however, where a party wishes to challenge jurisdiction – whether on grounds of an arbitration agreement or any other basis – it is best to take a cautious approach to avoid any risk of submitting to the jurisdiction.