Challenging court jurisdiction

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When the claimant has commenced proceedings, the defendant(s) may seek to challenge the court’s jurisdiction to determine the issues in dispute. There are a number of considerations for both the claimant(s) and the defendant(s) in this regard. For understanding of what is meant by the term ‘jurisdiction’ when dealing with cross-border litigation, see Practice Note: Jurisdiction—a guide for dispute resolution practitioners. The Practice Note explains the importance of determining which court has jurisdiction and how the courts of England and Wales (English courts) will determine whether they have jurisdiction to determine a particular dispute. When determining jurisdiction, there are a number of jurisdictional regimes the courts may apply and sometimes it can be difficult to determine which is the appropriate one. Once the relevant jurisdictional regime has been identified, navigating through it in terms of both its scope and application is also not always straightforward. The Practice Note aims to assist with this process by identifying the main jurisdictional regimes and it also considers issues relevant to jurisdiction such as jurisdiction agreements, the domicile of the defendant, staying proceedings in favour of a court with jurisdiction

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Latest Dispute Resolution News

Disclosure of confidential arbitration documents to facilitate policing of an undertaking (Bourlakova & others v Edelweiss Investments Inv)

Arbitration analysis: The High Court England and Wales, ordered disclosure of documents relating to an arbitration in Moscow to which the respondent (Edelweiss) was party. Although the applicable arbitral rules imposed confidentiality on the arbitration, (i) there were exceptions to the confidentiality; and (ii) in any event, there was no prospect of criminal prosecution for disclosure. The confidentiality considerations were outweighed by the potential risk to Edelweiss’ assets from an arbitration award, particularly given the policy in favour of enforcement of arbitral awards under the New York Convention. Written by Jennifer Haywood, barrister, arbitrator and mediator at Serle Court.

Fixed costs do not apply to wrongful interference with goods (Executors of the Estate of Kenneth Collins v Chief Constable of Thames Valley Police)

Dispute Resolution analysis: The claimant intimated a claim against the police for wrongful interference with goods which was settled pre-action after the defendant’s Part 36 Offer. They could not agree whether fixed costs applied to the case: the claimant asserted that wrongful interference implied an intentional tort which would have been allocated to the multi-track had proceedings been issued. They also argued that costs-only proceedings were exempt from fixed recoverable costs, by reason of the Civil Procedure (Amendment No 2) Rules 2023. The judge agreed the claim involved an intentional tort by the police and thus fixed costs did not apply. He ruled against the claimant on the transitional provisions, holding that the claim would otherwise have been caught. Written by David Juckes, barrister at Hailsham Chambers.

A consent order has the effect of a ‘judgment’ for the purposes of engaging the cost consequences in CPR 36.17 (Thomas v Secretary of State for the Home Department)

PI & Clinical Negligence analysis: The parties to a claim for unlawful detention agreed damages in the sum of £16,000. This was a sum higher than four Part 36 offers previously made by the claimant. The parties submitted a consent order recognising the agreed quantum in full and final settlement. The issue of costs was not agreed. The court held that the usual cost consequences in CPR 36.17 applied. The true effect of the consent order was to enter judgment in favour of the claimant. It was immaterial that the Order did not use the word ‘judgment’, that the order was agreed by way of settlement, or that there had not been a trial resulting in a judgment by a court. Written by Kyran Kanda, barrister at St Philips Chambers.

Costs recoverability following split-liability Part 36 offers (Smithstone v Tranmoor Primary School)

Dispute Resolution analysis: In this case, the Court of Appeal gave guidance on what constituted a ‘judgment’ for the purpose of CPR 36.17(1). Further, the court held that split-liability Part 36 offers can engage the costs recoverability provisions set out in CPR 36.17(4), thereby effectively overruling the arguments which culminated in the decision in Mundy v TUI UK Ltd. However, this was not the end of the matter. Dismissing the appeal, the Court of Appeal held that on the facts of this case, the outcome was less advantageous than the proposals contained in the claimant’s Part 36 offer. Further, the court held that there was no reason to depart from the fixed costs regime, and that it would not be ‘unjust’ to confine the claimant’s solicitors to fixed costs recoverability. Now that the uncertainty which followed Mundy has been clarified by the court, this could mark a resurgence in parties making split-liability Part 36 offers. Written by Charlotte Payne, barrister at 7KBW.

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