Case Management Pending a Supreme Court Jurisdiction Challenge: Extending CPR 11(7) Time While Requiring a Defence with Protective Undertakings and Cost Indemnity

1. Introduction

Sucden Financial Ltd v TMT Metals AG & Ors [2026] EWCA Civ 1080 is a Court of Appeal decision about how English proceedings should be managed after a defendant’s jurisdiction challenge has failed at first instance and on appeal, but the defendant wishes to consider seeking permission to appeal to the Supreme Court.

The claimant, Sucden Financial Limited, had been granted permission to serve proceedings out of the jurisdiction on the second defendant (a natural person, referred to below as the second defendant). The second defendant’s application to set aside that service order failed in the Commercial Court and his appeal failed in the Court of Appeal. The dispute then focused on the procedural consequences under CPR Part 11 (jurisdiction challenges): in particular, how to avoid an appeal being “rendered nugatory” while also preventing the action from being frozen for potentially lengthy further appellate steps.

The key issue was whether the timetable should be adjusted to preserve the second defendant’s ability to pursue (or consider pursuing) a Supreme Court challenge without being treated as having accepted the English court’s jurisdiction—while allowing the claim to move forward.

2. Summary of the Judgment

The Court of Appeal (Foxton LJ, with Laing LJ and Vos MR agreeing) held:

  • Because of the effect of CPR 11(8), it was appropriate to extend time for filing the “second” acknowledgment of service (the further acknowledgment contemplated by CPR 11(7)) until 14 days after the later of specified Supreme Court permission/appeal events (including expiry of time to apply, refusal of permission, or final resolution if permission is granted).
  • The court could nonetheless require service of a defence within a defined period (here, 28 days after sealing of the Court of Appeal order dismissing the appeal), and could contemplate further directions, without the same submission-to-jurisdiction risk that attaches to filing the further acknowledgment under CPR 11(8).
  • However, to protect the second defendant while any Supreme Court step was pending, the claimant needed to give undertakings:
    • Non-submission undertaking: not to treat steps taken under directions (including an application for more time) as a submission to jurisdiction, for the purposes of the proceedings or enforcement.
    • Costs indemnity undertaking: to indemnify the second defendant for reasonable and proportionate compliance costs if the jurisdiction challenge ultimately succeeds before the Supreme Court, and not to treat enforcement of the indemnity as a submission to jurisdiction.
  • If the claimant offered those undertakings, the court would refuse the second defendant’s application to extend time for the defence until after the further acknowledgment was filed. If not, the defence deadline would be extended to 14 days after any further acknowledgment.

3. Analysis

3.1 Precedents Cited

(a) Default approach: extending time so an appeal is not made nugatory

The court began from the “usual course” described in Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA Civ 226, [2015] 1 WLR 4225, where the Court of Appeal stated that a defendant who loses a jurisdiction challenge and wishes to appeal should seek an extension of time for the acknowledgment of service sufficient to allow the permission application/appeal to be determined; otherwise, refusing an extension risks making the appeal nugatory (Floyd LJ at [35]; Longmore LJ at [52]).

Sucden Financial extends that logic beyond the Court of Appeal stage: the extension can be structured to accommodate the Supreme Court permission window and, if granted, the Supreme Court appeal itself.

(b) The “progress the case but protect jurisdiction” line of authority

The court reviewed attempts to balance progress and protection:

  • Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2012] EWCA Civ 169: highlighted a “very real risk” that filing a second acknowledgment/defence could still be treated as entering an appearance, despite undertakings/orders, due to CPR 11(8) and (in that context) Article 24 of the Brussels Convention.
  • Barclays Bank plc v ENPAM [2015] EWHC 2857 (Comm), [2015] 2 Lloyd's Rep 527 and Goldman Sachs International v Novo Banco SA ([2015] EWHC 2371 (Comm), [2015] 2 CLC 475), followed by [2016] EWHC 346 (Comm): approved case-management directions up to close of pleadings pending a jurisdiction appeal, coupled with protective wording, claimant undertakings, and (in [2016] EWHC 346 (Comm)) an indemnity for costs if the appeal succeeds.
  • Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd [2018] EWHC 1216 (Ch), [2018] RPC 655: distinguished between requiring a second acknowledgment (problematic) and requiring a defence/other steps (potentially acceptable), balancing prejudice and allowing the case to progress (including fixing trial).
  • Município de Mariana v BHP Group (UK) Limited [2023] EWHC 2607 (TCC): emphasised the issue is fact-sensitive, not a hard rule; extended time for the further acknowledgment due to CPR 11(8) concerns, but made other procedural directions, backed by claimant undertakings and a costs indemnity.

Against that background, Sucden Financial is a Court of Appeal-level confirmation and refinement: (i) extend the CPR 11(7) “second acknowledgment” deadline through the Supreme Court permission/appeal pathway; (ii) allow substantive steps (notably a defence) to be ordered meanwhile, provided robust undertakings (including a costs indemnity) are given.

(c) The “second 14 days” rationale

The second defendant relied on European Capital Trade Finance Ltd v Antenna Hungaria RT [1995] CLC 530, where Rix J explained that after a failed jurisdiction challenge the defendant gets another 14 days to decide whether to submit by lodging a further acknowledgment, and may instead allow default because of enforcement considerations in its home jurisdiction.

The Court of Appeal accepted the need to preserve that choice, but held it could be preserved by extending the time for the further acknowledgment while still requiring a defence (so long as steps taken under directions were protected from being characterised as submission, and costs were addressed if the jurisdiction challenge later succeeds).

3.2 Legal Reasoning

(a) The core procedural problem: CPR 11(8)

The judgment identifies CPR 11(8) as the “hard edge” rule: once a defendant files the further acknowledgment of service following an unsuccessful jurisdiction challenge, the defendant is treated as having accepted jurisdiction. That creates acute risk if the defendant is forced to file it while still pursuing further appellate steps.

Accordingly, the court treated extension of time for the CPR 11(7) further acknowledgment as the necessary mechanism to preserve the defendant’s appellate position and post-appeal election whether to submit or default.

(b) Extending the extension: building in Supreme Court steps

The order was structured so the second acknowledgment deadline runs to 14 days after the later of:

  • the expiry of time to apply for permission to appeal (CPR 52.3B(b));
  • if permission is refused, the expiry of time to apply to the Supreme Court (Supreme Court Rules 2024 r.13(1));
  • if a Supreme Court permission application is made and dismissed, the date it is dismissed (Supreme Court Rules 2024 rr.12-13);
  • if permission is granted, the date the appeal is finally resolved.

This is the decision’s most operationally significant contribution: it translates the “don’t make the appeal nugatory” principle into a concrete timetable that anticipates the Supreme Court permission process.

(c) Why a defence can be ordered (with safeguards) even when the further acknowledgment is not required

The court drew a sharp distinction between:

  • filing a further acknowledgment of service (dangerous because CPR 11(8) deems acceptance of jurisdiction); and
  • serving a defence and taking other procedural steps (not governed by an equivalent deeming provision, and therefore manageable by undertakings and orders).

The court endorsed the approach in Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd and Município de Mariana v BHP Group (UK) Limited: progression directions can be made without creating the same submission risk, provided the defendant’s position is properly protected.

(d) The balancing factors: why “stasis” was rejected on these facts

Several case-specific features justified avoiding further delay:

  • the jurisdiction challenge had already failed at first instance and on appeal;
  • there were two independent jurisdiction grounds, both needing to be overturned;
  • the events were over four years old and involved allegations of dishonesty;
  • the claim was three years old and had not progressed against the second defendant beyond jurisdiction issues.

These factors supported case progression while still preserving the defendant’s right to continue contesting jurisdiction and, if ultimately unsuccessful, to decide whether to defend.

(e) The price of progression: undertakings plus an indemnity

The court required not just a “non-submission” undertaking, but also a costs indemnity (reasonable and proportionate costs, payable if the Supreme Court ultimately upholds the jurisdiction challenge). This mirrors and strengthens the approach in [2016] EWHC 346 (Comm) and Município de Mariana v BHP Group (UK) Limited.

The undertakings also had to extend to enforcement consequences: the claimant could not argue that compliance amounted to submission “whether for the purposes of these proceedings or for the purpose of enforcement of any judgment”.

3.3 Impact

The decision is likely to be relied on for three practical propositions in jurisdiction-dispute case management:

  1. Supreme Court-aware CPR 11(7) extensions: where a jurisdiction challenge has failed in the Court of Appeal, time for the further acknowledgment can be extended through the Supreme Court permission and appeal process, using defined trigger events.
  2. “Proceed with pleadings” orders are viable: courts may require a defendant to serve a defence (and potentially take other steps) pending the Supreme Court process, because there is no automatic deeming provision equivalent to CPR 11(8) for those steps.
  3. Robust protections are expected: if the claimant wants the case to progress while jurisdiction is still contested, undertakings should cover (i) non-submission for proceedings and enforcement and (ii) a costs indemnity if the jurisdiction challenge succeeds.

In commercial litigation, the case supports more active management of long-running jurisdiction disputes—especially where challenges have already been rejected and delay risks prejudice—without undermining the defendant’s appellate rights.

4. Complex Concepts Simplified

  • “Acknowledgment of service”: a formal procedural step indicating the defendant has been served and intends to participate. Under CPR 11 it interacts with jurisdiction challenges in a specialised way.
  • CPR 11(7) “further” acknowledgment: if a defendant challenged jurisdiction and lost, the original acknowledgment “ceases to have effect” and a new one must be filed within 14 days.
  • CPR 11(8) deemed submission: filing that further acknowledgment means the defendant is treated as having accepted the court’s jurisdiction—hence the need to extend time for it if the defendant is still pursuing jurisdiction appeals.
  • “Appeal rendered nugatory”: an appeal becomes practically pointless because procedural steps (like deemed submission) remove the benefit of winning the appeal.
  • Costs indemnity undertaking: the claimant promises to reimburse the defendant for compliance costs if the defendant ultimately wins on jurisdiction, recognising that the defendant should not bear costs incurred only because the court required progress while jurisdiction was unresolved.

5. Conclusion

[2026] EWCA Civ 1080 develops a structured approach to post-appeal jurisdiction case management: the court should extend time for the CPR 11(7) further acknowledgment through the Supreme Court permission/appeal process to avoid the CPR 11(8) trap, but may still order a defence (and potentially other steps) to prevent proceedings stagnating—provided the claimant gives comprehensive non-submission undertakings and a costs indemnity if the jurisdiction challenge ultimately succeeds.