Whether defendant had submitted to the jurisdiction by resisting an injunction application
The defendants were a Jersey and Bahraini company. The English solicitors of the Bahraini company advised that they were not instructed to accept service of the claim form and stated that "all our client's rights, including as to jurisdiction... are fully reserved". The claimant then issued an application for an injunction and the defendants participated in, and resisted, that application. It was argued that they had thereby submitted to the jurisdiction of the English court. The respondents countered that they had had no real option but to defend the injunction and that this should not be treated as a submission to the jurisdiction.
It is an accepted principle that a person who appears merely to contest the jurisdiction of the English court does not thereby submit. It must instead be shown that they have taken some step which is only necessary or useful if the objection to jurisdiction had been waived. The defendants sought to argue that the position is different in relation to injunctions because there is no acknowledgement of service form (alerting the defendant that it can contest jurisdiction) and a party is entitled to defend an injunction application without being taken to have submitted to the jurisdiction.
The judge held that those arguments arose from a mis-reading of earlier cases and that there was no special carve-out for injunction applications: "It would be perfectly possible to defend such an application by contesting jurisdiction at the hearing of the injunction" (paragraph 20). Similarly, if a defendant seeks a declaration that the English court has no jurisdiction and at the same time applies separately for security for costs, that will not amount to a voluntary submission. Further, the language used by the solicitors did not protect the defendants: "To reserve is not the same as informing the Court or other party that "we are not properly here"". The language used did not inform the court that the respondents intended to challenge jurisdiction.
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