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Sucden Financial Ltd v TMT Metals AG & Ors
Factual and Procedural Background
The Court of Appeal had already dismissed the Appellant’s appeal against Judge Knowles’s refusal to set aside permission to serve the claim out of the jurisdiction. Judge Knowles then made directions governing the timetable for acknowledgments of service and defences, and the present application asked the Court of Appeal to vary those directions so they would also account for a possible application for permission to appeal to the Supreme Court. [Para 30][Para 31][Para 36]
The Appellant’s concern was that CPR 11 could require a further acknowledgment of service after a failed jurisdiction challenge, but that filing such an acknowledgment might be treated as a submission to jurisdiction. [Para 39][Para 40][Para 41][Para 42][Para 43]
Legal Issues Presented
- Whether the Court should vary the existing directions so that the Appellant’s time for filing a further acknowledgment of service and defence would be postponed until any prospective Supreme Court challenge to jurisdiction was finally resolved. [Para 36][Para 38][Para 39]
- Whether the Court could allow the proceedings to continue in part while preserving the Appellant’s ability to maintain its jurisdictional position if a further appeal succeeded. [Para 49][Para 50][Para 67][Para 68]
- Whether undertakings from the Claimant were sufficient to protect the Appellant against any risk that compliance with case-management directions would amount to a submission to jurisdiction. [Para 70][Para 83][Para 90][Para 96]
Arguments of the Parties
Claimant's Arguments
- The Claimant asked the Court to refuse any further extension of time and offered an undertaking not to argue that compliance with the acknowledgment-of-service and defence timetable would amount to a submission to jurisdiction if the Appellant later succeeded before the Supreme Court. [Para 70][Para 71]
Appellant's Arguments
- The Appellant submitted that he should retain the ordinary opportunity, after final resolution of his jurisdictional objections, to decide whether to submit to the jurisdiction without prejudicing his enforcement position in the meantime. [Para 72][Para 73]
- The Appellant relied on CPR 11 and on authority saying that a failed jurisdiction challenge normally leaves a defendant 14 days to decide whether to submit to jurisdiction by filing a further acknowledgment of service. [Para 39][Para 40][Para 41][Para 42][Para 43][Para 72][Para 73]
- The Appellant also said the Claimant’s undertaking was insufficient and that no indemnity for costs had been offered. [Para 74]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA Civ 226, [2015] 1 WLR 4225 | The correct course after losing a jurisdiction challenge and wishing to appeal is to seek an extension of time for acknowledgment of service sufficient to preserve the appeal. [Para 45][Para 46] | Cited as the leading authority showing that an extension may be granted so an appeal is not rendered nugatory. [Para 45][Para 46] |
| Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2012] EWCA Civ 169 | There can be a risk that filing a further acknowledgment of service and a defence may amount to an appearance or submission to jurisdiction. [Para 52][Para 53][Para 54] | Used to illustrate the tension between progressing the case and preserving the jurisdictional challenge. [Para 52][Para 53][Para 54] |
| Barclays Bank plc v ENPAM [2015] EWHC 2857 (Comm), [2015] 2 Lloyd's Rep 527 | The court may order the action to continue to close of pleadings while stating that compliance will not amount to submission to jurisdiction, with party consent. [Para 55] | Relied on as an example of case-management directions that preserve the defendant’s jurisdictional position. [Para 55] |
| Goldman Sachs International v Novo Banco SA [2015] EWHC 2371 (Comm), [2015] 2 CLC 475; [2016] EWHC 346 (Comm) | The court may make directions to progress proceedings, including requiring a defence, where appropriate safeguards are in place. [Para 56][Para 57][Para 58][Para 59][Para 60][Para 61][Para 62] | Used to support the proposition that directions can be framed so that compliance does not count as a submission to jurisdiction. [Para 56][Para 57][Para 58][Para 59][Para 60][Para 61][Para 62] |
| Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd [2018] EWHC 1216 (Ch), [2018] RPC 655 | It may be appropriate to require a defence and later procedural steps while avoiding any order that would force a second acknowledgment of service. [Para 63] | Supported the Court’s view that case-management directions can proceed without creating an impermissible submission-to-jurisdiction risk. [Para 63][Para 90] |
| Município de Mariana v BHP Group (UK) Limited [2023] EWHC 2607 (TCC) | The decision whether to stay or progress proceedings pending a jurisdiction appeal depends on the circumstances of the case, including the stage reached and the interests of justice. [Para 64][Para 65] | Used to reinforce that the issue is fact-sensitive rather than one of principle. [Para 64][Para 65][Para 66] |
| European Capital Trade Finance Ltd v Antenna Hungaria RT [1995] CLC 530 | After a failed jurisdiction challenge, a defendant may prefer to let the claim proceed by default if enforcement in its home jurisdiction is unlikely. [Para 72][Para 73] | Cited by the Appellant to explain why he should retain the choice whether to file a further acknowledgment of service. [Para 72][Para 73] |
Court's Reasoning and Analysis
Judge Foxton held that the court plainly had jurisdiction to make directions for the progression of proceedings while a jurisdiction appeal was pending, but that the appropriateness of such directions depended on the circumstances. [Para 67][Para 68]
The Court noted that the jurisdiction challenge had already failed at first instance and on appeal, and that the case involved two independent jurisdictional bases, meaning the Appellant would have to succeed on both to defeat jurisdiction entirely. [Para 76][Para 77][Para 78]
The Court also considered the age and seriousness of the litigation, including that the proceedings were several years old and involved allegations of dishonesty, and that the case had stalled at the jurisdictional stage because of the Appellant’s litigation choices and the need to resolve the jurisdiction dispute. [Para 79][Para 80][Para 81][Para 82]
At the same time, the Court accepted that any order had to preserve the Appellant’s right to pursue further appellate review without making that appeal useless or forcing an unintended submission to jurisdiction. [Para 83]
For that reason, Judge Foxton extended the time for filing a second acknowledgment of service to 14 days after the latest of the relevant appeal-related events, including the expiry or dismissal of permission applications and the final resolution of any granted appeal. [Para 84][Para 85][Para 86][Para 87][Para 88][Para 89]
The Court further held that it could require the Appellant to serve a defence and comply with further directions without creating a submission to jurisdiction risk, because CPR 11(8) had no equivalent effect in that context and the authorities supported such directions. [Para 90]
The Court therefore proposed a timetable under which the defence would be served within 28 days of the sealing of the Court of Appeal’s order, subject to the Appellant’s ability to seek any further extension from the Commercial Court if needed. [Para 91]
To protect the Appellant if Supreme Court permission or an appeal succeeded, the Court said the Claimant would need to give undertakings not to treat compliance as a submission to jurisdiction and to indemnify reasonably and proportionately incurred compliance costs. [Para 92][Para 93][Para 94][Para 95][Para 96]
Holding and Implications
Conditional refusal of the Appellant’s extension application. If the Claimant offered the stated undertakings, the Court would refuse the Appellant’s request to postpone the defence deadline until 14 days after any further acknowledgment of service; if the Claimant did not offer those undertakings, the defence deadline would be extended to 14 days after any further acknowledgment was filed. [Para 97]
The practical effect was to keep the proceedings moving while preserving the Appellant’s jurisdictional position, and the judges on the panel agreed with Judge Foxton’s order. No broader precedent beyond that procedural management outcome was stated. [Para 90][Para 91][Para 97][Para 98][Para 99][Para 100][Para 101]
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