High Court Finds Defendant Submitted To The Jurisdiction By Applying For Extension Of Time To Serve Defence

• Published date: 02 February 2022
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The High Court has held that a defendant submitted to the jurisdiction of the English court by applying for an extension of time for service of a defence, in circumstances where it had indicated an intention to defend the proceedings in an acknowledgement of service and had not reserved its rights to challenge jurisdiction: Aelf MSN 242, LLC (a Puerto Rico limited liability company) v De Surinaamse Luchtvaart Maatschappij N.V. D.B.A. Surinam Airways [2021] EWHC 3482 (Comm).

Recent cases have tended to find that there has been no submission, even where defendants have taken part in some way in proceedings (see for example our posts here and here), but this case is a reminder that the court may decide there has been a submission if an unequivocal step has been taken which cannot be interpreted as consistent with a challenge to the jurisdiction, particularly where there has been no reservation of rights.

The decision underlines the importance of reserving the right to challenge jurisdiction and taking no steps in the proceedings whenever a challenge is being considered, whether that challenge will be on the basis that the court has no jurisdiction under conflict of laws rules (or should not exercise any jurisdiction it has) or, as in this case, on the basis that proceedings have not been served correctly.

Background

The claimant, an aircraft leasing company, brought proceedings against the defendant, a Surinam airline, alleging failure to pay sums due under a settlement agreement. The agreement contained an exclusive English jurisdiction clause.

Proceedings were issued in April 2021 and permission given to serve the defendant in Surinam. Service was purportedly effected by a bailiff in early June 2021. On Friday 25 June, the last day for acknowledging service, the defendant attempted to file an acknowledgement of service at court by email. It was informed by the court that it was no longer acceptable to file documents via email and that they should be filed through the court's online CE-File system.

On Monday 28 June, the defendant filed an acknowledgement of service, ticking the box saying the defendant intended to defend the claim. It did not tick the box indicating an intention to contest jurisdiction. That acknowledgement was in fact defective as it did not include a physical address for service within the UK but the defendant was not aware of that until sometime later (22 July).

After filing that acknowledgement, the defendant instructed English...