The Court of Appeal considers the correct test for "submission to the jurisdiction

When the claimant served its claim form on the defendant (a Norwegian company), the defendant filed an acknowledgment of service contesting the jurisdiction of the English court. The English court rejected the application for an order declaring that it did not have jurisdiction and also refused permission to appeal. An order was made permitting (but not requiring) the defendant to file a further acknowledgment of service (as permitted by CPR r11(7), which also provides that the first acknowledgment of service ceases to have effect if the court does not declare that it does not have jurisdiction). The defendant did file a second acknowledgment of service, only ticking the box indicating that it intended to defend the whole claim. The defendant subsequently obtained permission to appeal from the Court of Appeal. The claimant argued that the defendant had submitted to the jurisdiction of the English court by filing the second acknowledgment of service.

Article 24 of the Lugano Convention provides that "a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction". The meaning of "enters an appearance" is to be determined by national procedural law. In the combined cases of Sage v Double A Hydraulics and Chambers v Morgan Starkings [1992], the Supreme Court adopted a "disinterested bystander" test, but this was not applied in the subsequent case of Hoddinott v Persimmon Homes (see Weekly Update 45/07). There it was held that an application to set aside an order extending time for service of the claim form was to be treated as having been abandoned where the defendant filed an acknowledgment and failed to apply to challenge jurisdiction in time. In this case, the Court of Appeal held that Hoddinott did not apply only to first, and not subsequent, acknowledgments of service. It held the disinterested bystander test had no application to a "statutory submission to the jurisdiction". Furthermore, the language of CPR r11(8) (which provides that if the defendant files a further acknowledgment of service he shall be treated as having accepted that the court has jurisdiction to try the claim) was clear.

The correct step for the defendant in this case would have been to apply for a stay or an extension of time to file the acknowledgment of service in order continue its challenge (and not to file a further acknowledgment of service).