UK: Dipping A Toe In The Water – Can You Have It Both Ways?

Last Updated: 29 August 2017
Article by John Darnton

England is rightly proud of its judicial history. For many, it is a wonderful place to litigate, but for others this is not the case.

A question that often arises, especially for offshore trustees, is whether or not to 'submit to the jurisdiction'. But what amounts to a submission to the court's jurisdiction? This is a question recently considered by Registrar Briggs in Dennis v TAG Group Limited and Others [2017] EWHC 919 (CH). Sitting in the Companies Court Registrar Briggs considered what might constitute a submission to the court's jurisdiction and concluded that two of the respondents, who were resident outside the jurisdiction, had submitted to the court's jurisdiction by participating in and resisting an injunction application made by the claimant.

As will be apparent from the title to this case it was not a matrimonial dispute. The circumstances are rather more complicated than this article can do justice to but, in brief, the claimant was a 25% shareholder, director and employee in a company incorporated in England and Wales, and was until November 2016 the Chief Executive Officer and Chairman. The other 75% of the issued share capital was held jointly by one company incorporated in Jersey and another incorporated in the Kingdom of Bahrain.

Notice was given of a board meeting of the company to consider resolutions placing the claimant on garden leave for 12 months and giving an interim executive committee delegated authority to manage the company. The claimant claimed that he had suffered unfair prejudice as a result of those resolutions.

The claimant's solicitors sought undertakings from the two offshore companies that they would not pass the resolutions and then applied for an injunction to prevent that happening. The application for an injunction was refused but the question which arose was whether by taking part in the injunction proceedings the two defendants had submitted to the jurisdiction of the court. They contended that their solicitors had reserved their position as to jurisdiction throughout the correspondence leading up to the injunction hearing. It was said that there had been no submission to the jurisdiction and that the defendants had had no real option but to defend the injunction application otherwise they could have faced an order being made against them. They argued that an inference of submission to the jurisdiction could not be drawn where a party was simply defending an injunction application.

In his judgment Registrar Briggs set out a useful summary of guidance to be drawn from the authorities as follows:

  • a person submits to the jurisdiction if they voluntarily recognise that the court has jurisdiction;
  • they do not submit if they play no part in the proceedings;
  • they may submit if they take a step in the proceedings without making it clear that they wish to dispute jurisdiction as a preliminary issue;
  • the court may infer voluntary submission from the circumstances using the 'objective disinterested bystander' test;
  • when making an inference, the court will have regard to whether the step or act said to create an effective waiver of the right to contest jurisdiction was unequivocal and cannot be explained, except on the assumption that the party in question accepts the court's jurisdiction;
  • if a party states in correspondence that he is not going to submit to the jurisdiction but that statement conflicts with their conduct, such as to leave an objective observer in doubt of waiver or submission, the prior statement is unlikely to prevail; and
  • once submission has been made, it cannot be revoked.

The court held that the objective test applied to any situation where jurisdiction is challenged and that there is no special carve-out for injunction applications. The voluntary submission, or waiver of right to contest jurisdiction, must be unequivocal. Having considered the facts in this particular case, the only possible explanation for the actions (and inactions of the respondents in this case) was an intention to have their cases tried in England.

Often, solicitors will state in correspondence that their client's rights are reserved on the issue of jurisdiction. This decision suggests that using such words may not be sufficient and that seeking to oppose an application for an interim injunction may amount to a voluntary submission to the jurisdiction.

The recent trend in matrimonial cases seems to be towards encouraging offshore trustees to take part in English family proceedings on the basis that such involvement will enable the court to make better informed decisions. Many trustees remain hesitant about taking up an invitation to be joined or take part in proceedings unless, for example, there are assets within England which could be at risk. A number of jurisdictions have firewall legislation designed to protect the trust by conferring exclusive jurisdiction on the local court over matters concerning their trust. In a recent Guernsey case a trustee applied to the Royal Court of Guernsey for directions as to whether or not it should submit to the jurisdiction of a foreign court. This was a case involving a funded unapproved retirement benefit scheme and the Royal Court directed the trustee to submit to the jurisdiction of the Family Division of the High Court of England for the purposes of taking part in the ongoing matrimonial proceedings in order to provide disclosure and assistance within those proceedings. This was not withstanding the Guernsey firewall provisions. It will be interesting to see whether this decision which, in effect, involved a work place pension scheme over which the trustee had very little discretion will be extended towards family trusts where greater discretion exists.

The important message is that companies, trusts and individuals who wish to be able to maintain their stance that they have not submitted to the jurisdiction of the English court need to tread carefully. This is especially so when threatened with an injunction application. The language used may be crucial and it may not be sufficient just to say that the position or jurisdiction is reserved. A more positive statement objecting to jurisdiction may be advisable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

John Darnton
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.