Jurisdiction Appeals: Court Of Appeal Decision Illustrates Steps Defendants Should Take To Protect Their Position Pending Appeal

The decision also shows the court's broad powers to make directions to progress the proceedings in parallel. 

The Court of Appeal has held that a defendant who lost a jurisdiction appeal should be granted an extension of time to file a further acknowledgment of service while they pursued an appeal to the Supreme Court, in order to avoid submitting to the court’s jurisdiction and therefore rendering the potential appeal nugatory. However, it directed the defendant to file a defence, subject to directions aimed at ensuring that this would not amount to a submission to jurisdiction: Sucden Financial Ltd v TMT Metals AG [2026] EWCA Civ 1080. 

Where a defendant wishes to challenge the court's jurisdiction to hear a claim, it is required to file an acknowledgement of service and then make its application to challenge jurisdiction within a set period. If the jurisdiction challenge fails, the acknowledgement of service ceases to have effect and the defendant has a further period to file a further acknowledgement, failing which it will be susceptible to default judgment being entered against it. If, however, the defendant does file a further acknowledgement, CPR 11(8) provides that it is treated as accepting that the court has jurisdiction.

The present decision illustrates the steps a defendant should take to protect its position pending an appeal against a decision rejecting its jurisdiction challenge. In particular, it should seek an extension of time to file a further acknowledgement of service, so as to avoid submitting to the court's jurisdiction pending appeal as well as the risk of having default judgment entered against it. 

The decision also shows that a defendant may not be able to prevent the claim going ahead pending its jurisdiction appeal. The court may make procedural directions which allow the action to be progressed in parallel, such as the filing of the defence, provided that the defendant’s jurisdictional position is protected. 

As in the present case, however, the claimant is likely to be required to give undertakings to the court not to treat compliance with the procedural directions as a submission to the court’s jurisdiction, and to indemnify the defendant against costs incurred in doing so if the jurisdiction challenge ultimately succeeds. 

Background

The relevant claim concerns allegations for fraudulent misrepresentation and unlawful means conspiracy brought by the claimant (Sucden) against the second defendant (Mr Gupta), a Dubai resident. The principal loss claimed is the loss of the ability to recover a debt due from the first defendant. 

The High Court granted Sucden permission to serve proceedings on Mr Gupta out of the jurisdiction. It held that the tort jurisdictional gateway was satisfied on the basis that alleged damage was sustained in England (in that Sucden, itself in England, was induced to delay pursuit of the debt). 

Mr Gupta appealed the order granting permission to serve out, but was unsuccessful. The Court of Appeal ([2026] EWCA Civ 986) agreed that the tort gateway was satisfied because damage was sustained in England, though it said that the damage should properly be characterised not as the delay in pursuing the debt but as the fact that the debt ceased to be recoverable during the period of delay. As the debt was payable in England, the loss was suffered in England. The Court of Appeal also found that the tort gateway was satisfied on the basis that there was a good arguable case that a substantial and efficacious act constituting the tort – namely a fraudulent misrepresentation – was made at a meeting in London.

Under the High Court's order, Mr Gupta's deadline for filing a second acknowledgement of service was extended to 14 days after an unsuccessful appeal, and the defence 14 days thereafter. However, because he wanted to allow for the possibility of a further jurisdiction appeal to the Supreme Court, Mr Gupta asked the Court of Appeal to vary the order. 

Mr Gupta was concerned that, under CPR 11(8), in complying with the terms of the order he would be deemed to have submitted to the court’s jurisdiction, rendering any potential jurisdiction appeal meaningless. He therefore sought an extension of time for service of any further acknowledgment of service and defence, so that the time would run from the final resolution of any application for permission or appeal to the Supreme Court, or the expiry of the relevant time limits.

Decision

The Court of Appeal granted the requested extension of time to file the acknowledgment of service, but not the defence (subject to Sucden providing appropriate undertakings to the court). Foxton LJ gave the leading judgment, with which the Master of the Rolls and Laing LJ agreed. 

Extension of time to file a further acknowledgment of service

Foxton LJ stated that the court must ensure that its order would not render Mr Gupta’s proposed appeal nugatory by a submission to the jurisdiction. Further, should his jurisdiction challenge fail, Mr Gupta should have the right to decide whether he wished to defend the proceedings. 

Accordingly, he was satisfied that it was appropriate to order that the deadline for any further acknowledgment of service be extended to 14 days after the final resolution of any appeal to the Supreme Court, or dismissal of the application for permission or appeal, or expiry of the relevant time limits. 

Extension of time to file a defence

In contrast to the filing of a further acknowledgment of service, Foxton LJ could see no reason why an order should not be made requiring Mr Gupta to serve his defence, or for further directions, on the basis that such steps would not constitute a submission to the jurisdiction. Whereas the filing of a further acknowledgement is treated as a submission to the court’s jurisdiction pursuant to CPR 11(8), Foxton LJ noted that there is no equivalent provision for the filing of a defence. That is a procedural step which may be complied with without automatically being considered an acceptance of jurisdiction. 

Foxton LJ considered it highly desirable to progress the claim despite the pending jurisdiction challenge for various reasons, including because the jurisdiction challenge had failed both at first instance and on appeal, jurisdiction had been found to exist on two independent grounds, and there had been limited progress since the claim had been filed three years prior. 

Foxton LJ therefore directed Mr Gupta to file his defence within 28 days of the sealing of the Court of Appeal’s order dismissing the appeal, subject to Sucden offering undertakings to the court: (i) not to treat any steps taken by Mr Gupta prior to filing the further acknowledgment of service as a submission to the jurisdiction of the court; and (ii) to indemnify Mr Gupta against any reasonable and proportionate costs incurred in complying with the court’s directions, if the jurisdiction challenge ultimately succeeded, and not to treat any steps taken by Mr Gupta to enforce the indemnity as a submission to jurisdiction. 

If Sucden were to refuse to offer undertakings in the above terms, then the court would grant an extension for the filing of the defence to 14 days after the filing of any further acknowledgment of service, thereby protecting Mr Gupta’s position in relation to submission to the jurisdiction.