27: Dipping A Toe In The Water – Can You Have It Both Ways?

England is rightly proud of its judicial history. For many, it is a wonderful place to litigate, but for others this is not the case.

A question that often arises, especially for offshore trustees, is whether or not to 'submit to the jurisdiction'. But what amounts to a submission to the court's jurisdiction? This is a question recently considered by Registrar Briggs in Dennis v TAG Group Limited and Others [2017] EWHC 919 (CH). Sitting in the Companies Court Registrar Briggs considered what might constitute a submission to the court's jurisdiction and concluded that two of the respondents, who were resident outside the jurisdiction, had submitted to the court's jurisdiction by participating in and resisting an injunction application made by the claimant.

As will be apparent from the title to this case it was not a matrimonial dispute. The circumstances are rather more complicated than this article can do justice to but, in brief, the claimant was a 25% shareholder, director and employee in a company incorporated in England and Wales, and was until November 2016 the Chief Executive Officer and Chairman. The other 75% of the issued share capital was held jointly by one company incorporated in Jersey and another incorporated in the Kingdom of Bahrain.

Notice was given of a board meeting of the company to consider resolutions placing the claimant on garden leave for 12 months and giving an interim executive committee delegated authority to manage the company. The claimant claimed that he had suffered unfair prejudice as a result of those resolutions.

The claimant's solicitors sought undertakings from the two offshore companies that they would not pass the resolutions and then applied for an injunction to prevent that happening. The application for an injunction was refused but the question which arose was whether by taking part in the injunction proceedings the two defendants had submitted to the jurisdiction of the court. They contended that their solicitors had reserved their position as to jurisdiction throughout the correspondence leading up to the injunction hearing. It was said that there had been no submission to the jurisdiction and that the defendants had had no real option but to defend the injunction application otherwise they could have faced an order being made against them. They argued that an inference of submission to the jurisdiction could not be drawn where a party was simply defending an injunction application.

In his...

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