Partner Abigail Healey and Associate Genevieve Douglas examine inadvertent submission to the jurisdiction of the English courts

Partner Abigail Healey and Associate Genevieve Douglas discuss unintentional submission to the jurisdiction of the English courts, and provide practical takeaways to help litigants avoid inadvertent submission, in Thomson Reuters PLC Magazine.

Abigail and Genevieve’s article was published in Thomson Reuters PLC Magazine, 26 June 2025.

Introduction

In cross-border disputes, one of the most critical and contested issues can be whether the court that the claimant has chosen to bring its claim before has the jurisdiction to hear the claim. In that context, a party wishing to challenge the jurisdiction of the English courts should take care not to unwittingly submit to the jurisdiction. A misstep at this stage can shape the trajectory of litigation, carrying significant procedural and strategic implications.

Any defendant who wishes to challenge the jurisdiction of the English courts to hear the claim should consider very carefully engaging in any act which might arguably constitute a submission to the jurisdiction. The ramifications of submission are significant and could be disastrous to the litigation strategy: if a defendant is found to have submitted to the jurisdiction, it would prevent them from being able to challenge jurisdiction, regardless of subsequent protestations.

While some procedural steps would almost certainly amount to submission, others fall into a grey area where context, timing and intent are important factors. In this article, we consider some of the principles emerging from recent cases as to which acts might – or might not – constitute submission.

We also provide practical guidance to avoiding some of the more common pitfalls and maintaining an optimal position for challenging jurisdiction.

Legal framework

The leading authority on this subject remains Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA Civ 226, where the Court of Appeal recognised two categories of submission:

1. Common law submission (or waiver), where the defendant’s conduct is inconsistent with maintaining a jurisdictional challenge and amounts to voluntary acceptance of the court’s jurisdiction. Such an act must clearly convey to the claimant and the court that the defendant is unequivocally renouncing its right to challenge the jurisdiction. The court will consider whether a disinterested bystander with knowledge of the case would regard the acts of the defendant (or the defendant’s solicitor) as inconsistent with making and maintaining a challenge to the jurisdiction.
2. Statutory submission is deemed to have occurred when a defendant fails to comply with the rules it must follow to challenge the jurisdiction of the English courts under Part 11 of the Civil Procedure Rules (“CPR”). In that situation the “disinterested bystander test” has no application; the sole issue is whether the conditions set out at CPR r.11(5) and (8) are met.

These categories are considered mutually exclusive: once one form of submission is found, the jurisdictional door is closed, regardless of subsequent protestations or procedural manoeuvres.

Statutory submission

CPR Part 11 sets out the rules a defendant must follow to challenge the English court’s jurisdiction. A defendant wishing to challenge jurisdiction must:

• File an acknowledgment of service within the time required (CPR r. 11(2));
• State clearly in the acknowledgment that they intend to dispute jurisdiction (CPR r. 11(1)); and
• Make an application disputing jurisdiction within the applicable deadline (CPR r. 11(4)).

If these steps are not followed, CPR r. 11(5) deems the defendant to have accepted the court’s jurisdiction. Likewise, under CPR r. 11(8), if the court refuses to grant a declaration of no jurisdiction under CPR r. 11(1) and the defendant continues with proceedings, they are treated as having submitted.

As confirmed in Hin-Pro International Logistics Ltd v Compania Sud Americana De Vapores SA [2015] EWCA Civ 401, merely filing an acknowledgment of service does not amount to submission. However, failing to follow up with a jurisdictional challenge within the required time will.

Steps that have been found to constitute statutory submission include:

• Failing to file an acknowledgement of service and/or failing to indicate that jurisdiction is disputed, as required by CPR 10.1(3)(b) and CPR 11(2): Williams v The Federal Government of Nigeria & Anor [2023] EWHC 1891 (KB))

• Filing an acknowledgment of service indicating that jurisdiction is disputed but failing to make any application to dispute the court’s jurisdiction under CPR 11(1): Moonbug Entertainment Ltd v CCM Touring LLC and another [2024] EWHC 793 (Comm). This will be so even where a defendant makes an application, before filing the acknowledgment of service, to set aside an order granting the claimant an extension of time for service of the claim form: Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; [2008] 1 W.L.R. 806.

• Failing to bring an application to challenge jurisdiction within the time limit in CPR 11(4): Uphill v BRB [2005] EWCA Civ 60.
• Failing to notify the court of a stay in Commercial Court proceedings, making the stay ineffective to extend the time to challenge jurisdiction: Griffin Underwriting Ltd v Varouxakis (Free Goddess) [2018] EWHC 3259 (Comm).

Submission by conduct

Even if procedural rules are followed, a defendant may still be found to have submitted to the jurisdiction. This arises where the defendant takes a step considered to be inconsistent with a jurisdictional challenge.

Conduct amounting to submission includes:

• Taking a step that addresses the merits of the case without simultaneously disputing jurisdiction. For example, applying to strike out a claim for disclosing no cause of action (Astro Exito Navegacion SA v WT Hsu [1984] 1 Lloyd’s Rep. 266) or requesting substantive disclosure to support a merits-based defence (Caltex Trading Pte Ltd v Metro Trading International Inc [1999] 2 Lloyd’s Rep 724).
• Applying to extend time to file a defence without expressly maintaining a jurisdictional challenge, as seen in Aelf MSN 242 LLC v Surinam Airways [2021] EWHC 3482 (Comm).
• Engaging with interlocutory relief such as injunctions, unless explicitly done “without prejudice to jurisdiction”. In Dennis v Tag Group Ltd [2017] EWHC 919 (Ch), the court held that resisting an injunction on the merits constituted submission, despite reservations noted in correspondence.

The risk is particularly acute where parties seek urgent procedural relief before bringing a jurisdictional challenge. In Williams v Federal Government of Nigeria [2023] EWHC 1891 (KB), the defendants’ application for further information to advance a defence was deemed inconsistent with their jurisdictional challenge.

Steps that do not constitute submission

Not all procedural steps taken by a defendant will amount to submission to the jurisdiction.

The English courts draw a clear distinction between steps that are properly ancillary to a jurisdictional challenge and those that are indicative of an intention to accept the court’s authority. As a general principle, where a defendant’s conduct is objectively consistent with the maintenance of a jurisdictional challenge – particularly where steps are taken with appropriate reservations or solely to preserve procedural rights it will not be treated as submission. The decisive question is whether the conduct, viewed in its context, clearly signals an intention to defend the claim on the merits.

The following steps have been found not to constitute submission:

• Filing an Acknowledgment of Service: Under CPR 11(3), filing an acknowledgment of service—even one indicating an intention to defend—does not of itself amount to submission. Pursuant to CPR 11(2), this is a necessary step before any jurisdiction challenge can be made and is explicitly carved out by the rules. The acknowledgment of service must, however, be followed by an application to challenge jurisdiction within the applicable time limit to avoid statutory submission under CPR 11(5). See Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; Pitalia v NHS England [2023] EWCA Civ 657; SMAY Investments Ltd v Sachdev [2003] EWHC 474 (Ch).

• Application for an extension of time to challenge jurisdiction: Despite the provisions of CPR r. 11(4) and 11(5), a defendant may apply for an extension of the time, and the court has the power to grant such an extension retrospectively — even if the application is made after the deadline under CPR r. 11(4), as confirmed in Sawyer v Atari Interactive Inc [2005] EWHC 2351 (Ch).
• Application to strike out a claim and for disclosure of documents strictly relating to jurisdiction, after an application challenging the jurisdiction has been made: Zumax Nigeria Ltd v First City Monument Bank plc [2014] EWHC 2075 (Ch).
• Application for security for costs limited in scope to the jurisdictional challenge: Lhoneux Limon Co v Hong Kong Banking Corp (1886) 33 Ch. D. 446.
• Application to set aside default judgment on jurisdictional grounds: Where the defendant applies to set aside a default judgment solely on jurisdictional or service grounds (not merits), the courts have not treated this as submission (Tradin Organic Agriculture BV v Gold Grain Gida Tarim [2024] EWHC 1562 (KB)).
• Resisting interim injunctions or freezing orders: An appearance to challenge interim relief—such as proprietary injunctions or asset preservation orders—is not of itself a submission, provided the challenge does not engage with the claim’s merits and the jurisdictional objection is clearly maintained. (Almeqham v Al-Sanea [2025] EWHC 322 (Ch); SMAY Investments Ltd v Sachdev [2003] EWHC 474 (Ch)).

• Application to strike out parts of the claim at the same time as applying for a stay on forum non conveniens grounds: PJSC Bank “Finance and Credit” v Zhevago [2021] EWHC 2522 (Ch).

Steps that may constitute submission depending on the circumstances

There exists a category of procedural conduct which may be construed as amounting to submission, depending on the circumstances. The assessment is necessarily fact-sensitive and turns on whether the conduct, viewed objectively, is consistent with an intention to contest jurisdiction or, conversely, indicative of acquiescence to the court’s authority. The absence of an express reservation of rights, delay in asserting a jurisdictional objection, or engagement with the merits of the dispute may, in certain circumstances, tip the balance towards a finding of submission. Courts will scrutinise both the substance and timing of such steps to determine their legal effect.

By way of example:

• Applying for an extension of time to file a defence: The courts take a fact-sensitive approach to such applications. Where a defendant applies for more time to serve a defence without reserving the right to challenge jurisdiction, this may be treated as submission (Aelf MSN 242 LLC v Surinam Airways [2021] EWHC 3482 (Comm)). However, in SMAY Investments Ltd v Sachdev, the court found that the application, when accompanied by a clear reservation of jurisdictional rights, did not amount to submission.
• Participating in injunction proceedings: While resisting an injunction does not, per se, constitute submission, the courts look closely at the party’s conduct. In Dennis v Tag Group Ltd [2017] EWHC 919 (Ch), engagement with the substance of the injunction, rather than its jurisdictional propriety, contributed to a finding of submission. The same risk arises if interim orders regulate the parties’ conduct until trial.
• Applications to set aside default judgment: Where the application is timely and raises issues of service or jurisdiction only, courts have generally found no submission (Winkler v Shamoon [2016] EWHC 217 (Ch); Tradin Organic Agriculture BV). Conversely, where there is delay or focus on the merits (Simon Bain Building Services Ltd v Cardone [2023] EWHC 2916 (Ch)), submission may be inferred. The decision in Newland Shipping & Forwarding Ltd v Toba Trading FZC [2017] EWHC 1416 (Comm) illustrates this risk: the court considered that taking any substantive step to challenge judgment on the merits might amount to submission.
• Delayed assertion of jurisdictional objection: Failure to object promptly to jurisdiction, especially after procedural engagement, can result in deemed submission. In Moonbug Entertainment Ltd v CCM Touring LLC [2024] EWHC 793 (Comm), the defendants filed acknowledgments of service, requested extensions to serve a defence, and participated in CMC preparations—all without issuing a jurisdiction challenge. The court concluded that their conduct, even with equivocal reservations, amounted to submission.
• Inconsistent or misleading procedural conduct: In Al-Aggad v Al-Aggad [2024] EWHC 226 (Comm), the defendant was found to have submitted by pursuing a forum non conveniens stay while remaining silent on defective service. The court held that proceeding in this way was tantamount to accepting service and, consequently, the court’s jurisdiction.

Key takeaways: avoiding unintentional submission to jurisdiction

To preserve the right to challenge jurisdiction effectively, defendants must tread carefully in the early stages of litigation. The following principles provide a strategic roadmap to avoid arguments of inadvertent submission:

• Act promptly: File an acknowledgment of service and apply to challenge jurisdiction within the prescribed time limit. Delay or procedural ambivalence can close off jurisdictional defences permanently.
• Expressly reserve the right to challenge jurisdiction: Given the short period of time within which a decision must be made whether to contest jurisdiction, a defendant would be well advised in case of doubt to file an acknowledgment of service stating an intention to contest jurisdiction and seek to agree / obtain an extension of time to apply under CPR Part 11, in order to preserve a right to do so.
• Deadlines must be adhered to: If the application challenging jurisdiction is made out of time, an application for an extension of time can be made retrospectively, but a defendant should not delay in so doing.
• Correspondence and filings: Clearly state in all communications (including email correspondence) and court filings that such steps are being taken without prejudice to the defendant’s right to challenge the English court’s jurisdiction. All documents should be marked “without prejudice to jurisdiction”.
• Merits of the claim: Tread carefully if taking any step which might be considered to be engaging with the merits of the claim. If it is considered necessary or appropriate to do so, then ensure that it is made clear at the time that the step is being taken without prejudice to jurisdiction.
• Exercise caution in interim relief proceedings: If resisting an application for interim relief, avoid engaging with the merits of the underlying claim and make it clear that the application is opposed without accepting the court’s jurisdiction.
• Seeking interim relief: If seeking interim relief (such as security for costs or for further information), ensure that it is limited in scope to the jurisdiction challenge.
• Avoid conduct suggesting tactical delay or acquiescence: Silence, delay, or participation in procedural matters without an express reservation can amount to tacit acceptance of jurisdiction. The courts will consider the totality of conduct, not just isolated acts.

It is apparent from recent cases, only some of which are the focus of this article, that defendants can unwittingly submit to the jurisdiction of the English courts despite their intention to challenge jurisdiction.

Any defendant to English litigation would be well-advised to obtain legal advice as early as possible and before taking any step in relation to the litigation if it wishes to avoid arguments concerning submission.