The escalation of jurisdiction battles

Following his team’s successful resistance of a heavy jurisdiction challenge, (Durnont Enterprises Limited v Fazita Investment Limited & Ors) Partner Jon Felce provides some comments about the features of these increasingly regular battles.

With the most recent Portland Communications’ Commercial Courts Report revealing that 93 different nationalities had been represented in the Commercial Court for the year to March 2025, it is perhaps unsurprising that jurisdiction battles increasingly appear to be part of the staple diet of commercial litigators.

Whilst these applications are not supposed to be a mini-trial, that does not seem to stop defendants seeking to challenge jurisdiction from throwing the proverbial kitchen sink at such applications, leading to mountains of evidence and lengthy hearings. In Durnont, this led to a five-day hearing (plus two days of pre-reading), and in another recent case in which the firm was involved (Magomedov) the hearing was two weeks. Jurisdiction skirmishes can often therefore end up being longer than many commercial trials, especially in complex high value cross-border cases where there are multiple defendants with separate legal representation (in Durnont, there were three sets of legal representatives for example; in the aforementioned Magomedov hearing there were twelve). Sometimes this results from the sheer scale of the allegations being raised and the volume of alleged conspirators and their separate interests, in other cases the decision to instruct different legal teams is a tactical ploy to increase cost and costs risk for claimants, and to seek to muddy the waters as much as possible.

It is perhaps unsurprising that jurisdiction hearings are taking so long when defendants are casting their net far and wide. They have an array of potential arguments available to them.

1. Serious issue to be tried: does the case get over the merits hurdle? Whilst this is a reasonably low bar for claimants to overcome, defendants will often rely upon tomes of evidence in support of their contention that the case is sufficiently weak that it should not be heard.
2. Service: Frequently, service is attempted without a smile. Instead of simply accepting service without prejudice to any arguments as to jurisdiction, defendants will seek to obfuscate and delay, turning what should be a straightforward exercise into weeks and months of shadow boxing. This is especially the case when defendants need to be served overseas, and multi- and bilateral conventions are engaged and/or local law becomes relevant. Claimants are regularly faced with the need to make multiple applications, such as to extend the validity of the claim form, for alternative service, to dispense with service, to retrospective validate service and the like.
3. Jurisdictional gateways: If service can be effected overseas, then the question arises whether there is actually a jurisdictional hook on which the claim can proceed. Whilst there are various gateways available, these are often challenged and it pays for a claimant to have multiple gateways up its sleeve. Consequently, the path to establishing jurisdiction often resembles a decision tree. It is therefore important to stress test alternatives to seek to ensure that all intended defendants can be caught if the primary route fails.
4. Appropriateness of England as a forum: even if there is a path to jurisdiction, is England the appropriate forum? There is a tried and tested menu of factors on which defendants will seek to rely.
5. Full and frank disclosure: applications for permission to serve defendants out of the jurisdiction are made without notice and this engages the claimant’s duties of full and frank disclosure and fair presentation. Defendants will frequently comb the application and without notice hearing transcript in an effort to identify any arguments that the duties have been breached. Whilst caselaw makes clear that any such grounds should be limited and focussed, this does not stop defendants throwing a barrage of allegations against claimants.
6. Ancillary applications: even where some defendants can be served of right, such to undercut their ability to challenge jurisdiction (for example, where there is an exclusive jurisdiction clause), they will often make complementary applications to support the jurisdiction challenges of those that cannot be served as of right. For example, in Durnont, the claimant faced applications for strike out and reverse summary judgment, as well as applications for security for the costs of the jurisdiction challenges.

When one puts all these factors together, it is perhaps unsurprising that jurisdiction challenges are becoming so large. As a result, for claimants it is important to get your ducks in a row when identifying your defendants, formulating your claims and ascertaining the jurisdictional bases for seising jurisdiction. This can reduce the scope for the defendants to raise a challenge. Put your defendant’s hat on and play devil’s advocate in anticipation of an almighty fight. It may be a stretch to say that defendants will put all their eggs in one basket in an effort to get rid of a claim by way of a jurisdictional challenge, but if not all of their eggs they will often look to scramble a fair few.

The core team in Durnont comprised Jon Felce (Partner), Joseph Martin (Senior Associate) and Leonore Carron-Desrosiers (Senior Associate).