Responding to a claim - Disputing the court's jurisdiction

Learning Outcomes

This article outlines the procedure for a defendant who wishes to dispute the court's jurisdiction to try a claim issued against them in England and Wales. It covers the initial steps required under the Civil Procedure Rules (CPR) Part 11, including acknowledging service and making the formal application. It also clarifies the vitally important distinction between challenging the court’s jurisdiction in principle and asking the court not to exercise a jurisdiction it has (for example on forum non conveniens grounds), and shows how those issues intersect with service rules under CPR Part 6 and permission for service out of the jurisdiction. The section further explains the supporting evidence required, typical grounds for challenge (such as exclusive jurisdiction clauses, defective service, and forum non conveniens), the consequences of failure to comply with time limits, and the orders the court may make. After working through the content, readers can confidently calculate time limits, select the correct procedural route (including when a s.9 Arbitration Act 1996 stay is appropriate rather than a Part 11 application), and avoid steps that risk submitting to the court’s jurisdiction.

SQE1 Syllabus

For SQE1, you are required to understand the practical steps and rules for disputing the court’s jurisdiction under CPR Part 11, including acknowledgment of service, the application process, time limits, and the consequences of non-compliance, with a focus on the following syllabus points:

• the procedure for acknowledging service when intending to dispute jurisdiction
• the time limits for acknowledging service and filing the application notice
• the consequences of failing to follow the correct procedure
• the basic concept of disputing jurisdiction.
• how a Part 11 application interacts with service under CPR Part 6, including challenges to validity of service and permission to serve out
• when a stay under s.9 Arbitration Act 1996 (arbitration agreement) is the correct route rather than a Part 11 jurisdiction challenge
• the effect of ticking the wrong box on the acknowledgment of service, and steps that may amount to submission to the court’s jurisdiction
• the range of orders available under CPR 11(6) and what each order achieves in practice

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Within how many days of deemed service of the particulars of claim must a defendant file an acknowledgment of service if they intend to dispute the court's jurisdiction?
   1. 7 days
   2. 14 days
   3. 21 days
   4. 28 days
2. After filing an acknowledgment of service indicating an intention to dispute jurisdiction, within how many days must the defendant file the application notice under CPR Part 11?
   1. 7 days
   2. 14 days
   3. 21 days
   4. 28 days
3. What is the primary consequence if a defendant files an acknowledgment of service indicating an intention to defend the claim on its merits, instead of disputing jurisdiction?
   1. The defendant is barred from raising any defence later.
   2. The defendant is deemed to have accepted the court's jurisdiction.
   3. The claimant automatically wins the case.
   4. The case is automatically transferred to a different court.

Introduction

When a defendant is served with a claim form and particulars of claim issued from a court in England and Wales, they may believe that the court does not have the legal authority or is not the appropriate place to hear the dispute. This legal authority of a court to hear a case is known as its jurisdiction. The defendant has a specific procedure to follow if they wish to challenge this.

Key Term: Jurisdiction
The legal power and authority of a court to hear and determine a case or make orders.

The process for disputing the court's jurisdiction is governed primarily by CPR Part 11 ('Disputing the court’s jurisdiction'). It involves a two-stage process that must be followed within strict time limits. Failure to comply with this procedure can result in the defendant being treated as having accepted the court's jurisdiction. Challenges under Part 11 may take different forms:

• arguing the court has no jurisdiction at all (for example, because service of the claim form was invalid or permission to serve out was never obtained), or
• accepting that the court has jurisdiction but inviting the court not to exercise it (for example, because there is an exclusive jurisdiction clause in favour of another country’s courts, or because England and Wales is not the appropriate forum).

Although closely related, a request to stay proceedings in favour of arbitration (where there is a binding arbitration clause) is not a jurisdiction challenge under Part 11; the correct mechanism is usually an application for a mandatory stay under section 9 Arbitration Act 1996.

Procedure for Disputing Jurisdiction

A defendant who wishes to dispute the court’s jurisdiction to try the claim (or argue that the court should not exercise its jurisdiction) must follow the steps outlined in CPR Part 11.

Step 1: File an Acknowledgment of Service

The first essential step is for the defendant to file an acknowledgment of service under CPR Part 10 within 14 days of deemed service of the particulars of claim. Use the deemed service rules to calculate time accurately (see CPR 2.8 on clear days and CPR 6.14/6.26 for deemed service rules). Where particulars of claim are served with the claim form, the 14-day period for the acknowledgment runs from the deemed service of the claim form.

Key Term: Acknowledgment of Service
A formal document filed by the defendant at court indicating their intention in response to the claim, such as intending to defend the claim or dispute jurisdiction.

It is important that when completing the acknowledgment of service form (Form N9), the defendant explicitly ticks the box indicating an intention to contest jurisdiction. Ticking the box for intending to defend the claim will result in the defendant being deemed to have accepted the court's jurisdiction (CPR 11(5)).

Filing the acknowledgment of service correctly serves two main purposes:

• It prevents the claimant from obtaining default judgment against the defendant for failing to respond to the claim.
• It signals the defendant's intention to challenge the court's authority without submitting to it.

Key Term: Default judgment
A judgment that can be entered against a party who fails to respond to a claim (by acknowledgment of service or defence) within the CPR time limits, without the court considering the merits of the case.

Where a jurisdictional challenge is contemplated, do not file a defence. Filing a defence, engaging with the merits, or seeking relief that assumes the court’s jurisdiction can amount to submission to the court’s jurisdiction and undermine the Part 11 challenge. The safe course is to file the acknowledgment of service indicating an intention to contest jurisdiction and then make the Part 11 application within the time limit.

Step 2: Make the Application

The second step requires the defendant to make a formal application to the court under CPR Part 11(1). This application must be made within 14 days after filing the acknowledgment of service (CPR 11(4)(a)). The application is made using the general interim applications procedure (CPR Part 23).

Key Term: Application notice
The standard court form (N244) used to ask the court to make an order before trial. It sets out the order sought, the legal basis, hearing details, and is supported by evidence (commonly a witness statement).

The application must be supported by evidence, typically in the form of a witness statement. The evidence should set out clearly and concisely the facts that underpin the challenge and exhibit any critical documents. Common grounds include:

• A contractual agreement between the parties specifying a different jurisdiction (e.g., the courts of another country). Courts strongly uphold exclusive jurisdiction clauses, and a dispute covered by such a clause will usually be stayed.
• The courts of England and Wales not being the most appropriate forum to hear the dispute (forum non conveniens), for example because the factual matrix, witnesses, documents, or governing law point elsewhere.
• Service of the claim form being invalid (for example, service at the wrong address or by an impermissible method) or being out of time.
• Service out of the jurisdiction having been attempted without permission where permission was required, or permission having been granted on the wrong basis.
• A claim that was commenced but the claim form was not validly served within the time limit.

Key Term: Forum non conveniens
A common‑law principle under which a court with jurisdiction declines to try a case because another available forum is clearly more appropriate for the fair and efficient resolution of the dispute.

Key Term: Exclusive jurisdiction clause
A contractual term under which the parties agree that disputes falling within the clause will be determined only by the courts of a specified country.

Key Term: Service out of the jurisdiction
Serving a claim form on a defendant outside England and Wales. This generally requires either a permitted gateway under PD 6B and the court’s permission (CPR 6.36) or falls within limited categories where permission is not required.

If the principal complaint is that the litigation is brought in breach of an arbitration agreement, the appropriate route is normally a stay under section 9 Arbitration Act 1996 rather than a Part 11 application. In practice, a defendant may combine or sequence applications, but the correct statutory route should be identified and used.

In the application, the defendant should ask for appropriate relief under CPR 11(6), such as:

• a declaration that the court has no jurisdiction, or
• that the court should not exercise any jurisdiction it may have, and
• consequential orders (e.g., setting aside the claim form or service, discharging any interim order, or staying proceedings).

Include a clear draft order and ensure the application notice and evidence are served on the claimant in time for the hearing in accordance with CPR Part 23.

Consequences of Procedural Failure

Failure to make the application within the 14-day period after filing the acknowledgment of service has serious consequences. The defendant will be treated as having accepted the jurisdiction of the court (CPR 11(5)). Similarly, steps that engage the merits (e.g., filing a defence or taking directions on the substance) risk being treated as submission. If jurisdiction is accepted (by act or by default under CPR 11(5)), the litigation proceeds in the ordinary way and the defendant must comply with the usual deadlines for filing a defence.

Where a defendant fails to comply with the Part 11 time limit but a default judgment is later entered for failure to defend, it is possible to apply to set aside that default judgment under CPR 13 on mandatory or discretionary grounds. However, that does not revive a lost right to contest jurisdiction under CPR 11.

Worked Example 1.1

Alpha Ltd, a company based in England, is served with particulars of claim by Beta GmbH, a German company, on 1st March. Alpha Ltd believes the contract stipulates that disputes must be heard in Germany. Alpha Ltd files an acknowledgment of service on 10th March, indicating an intention to defend the claim on its merits. On 20th March, Alpha Ltd applies under CPR Part 11 to dispute jurisdiction. What is the likely outcome?

Answer:
Alpha Ltd's application to dispute jurisdiction is likely to fail. By filing an acknowledgment of service indicating an intention to defend the claim on its merits, Alpha Ltd is treated as having accepted the court's jurisdiction under CPR 11(5). Furthermore, the application under CPR Part 11 was made more than 14 days after filing the acknowledgment of service.

Exam Warning

Pay close attention to the dates provided in exam scenarios. Calculating the 14-day periods for acknowledging service and making the Part 11 application is important. Remember that filing an acknowledgment of service indicating an intention to defend submits the defendant to the jurisdiction. Avoid taking steps that touch the merits (e.g., filing a defence) before the Part 11 application has been determined. Also distinguish between disputing jurisdiction under Part 11 and applying to transfer proceedings to a different venue within England and Wales (CPR Part 30)—they are different applications serving different purposes.

Outcome of the Application

If the defendant successfully follows the procedure, the court will hear the application to dispute jurisdiction. The court’s powers are set out in CPR 11(6).

• If the court agrees with the defendant, it may make an order declaring it has no jurisdiction, setting aside the claim form and/or service, discharging any order made pre-service, or staying the proceedings (CPR 11(6)). Which remedy is granted depends on the nature of the defect and the ground of challenge:
  • for defective service or lack of permission to serve out, the court commonly sets aside service (and in an appropriate case the claim form);
  • for forum non conveniens or breach of an exclusive jurisdiction clause, a stay of the proceedings is often the appropriate order.

Key Term: Stay of proceedings
An order pausing the claim. A stayed claim does not proceed further unless and until the stay is lifted (or the stay terms are complied with). A stay can be final (bringing the English proceedings to an end in practice) or conditional.

• If the court disagrees with the defendant and dismisses the application, the acknowledgment of service filed previously ceases to have effect. The defendant must then file a further acknowledgment of service within 14 days if they intend to defend the claim on its merits (CPR 11(7)). The court will also give directions for the filing and service of the defence and may specify a new timetable.

In either event, costs are at the court’s discretion and generally follow the event. A defendant who unsuccessfully challenges jurisdiction can expect to pay the claimant’s costs of the application.

Revision Tip

Focus on the procedural steps and deadlines under CPR Part 10 and Part 11. Scenario questions often test understanding of the correct sequence and timing, and the consequences of getting it wrong. Ensure you are clear about the appropriate order sought: set aside service (service defective), declare no jurisdiction (no gateway/permission), or stay (exclusive jurisdiction clause or forum non conveniens).

Worked Example 1.2

Charlie, based in Scotland, is sued in the English courts by Dave, based in London, over a contract dispute. The contract contains no jurisdiction clause. Charlie believes a Scottish court is more appropriate. Charlie correctly files an acknowledgment of service indicating an intention to dispute jurisdiction within 14 days of service of the particulars of claim. He then files his application notice under CPR Part 11, supported by evidence, 10 days later. The English court dismisses his application. What must Charlie do next if he wishes to defend the claim?

Answer:
Since the court dismissed his application, Charlie's original acknowledgment of service ceases to have effect. Under CPR 11(7), he must file a further acknowledgment of service within 14 days of the court's order dismissing his application. This further acknowledgment would indicate his intention to defend the claim on its merits. The time for filing his defence will then be determined by the court’s directions and generally starts from the date of filing the further acknowledgment.

Worked Example 1.3

Delta SA (France) sues Echo Ltd (England) in the High Court. The contract between them contains an exclusive jurisdiction clause in favour of the Paris Commercial Court. The claim form and particulars are validly served at Echo Ltd’s registered office. Echo files an acknowledgment of service ticking “intend to contest jurisdiction” within 14 days and, within a further 10 days, applies under CPR 11(1) relying on the exclusive jurisdiction clause, exhibiting the signed contract. What is the court likely to do?

Answer:
The court is likely to order a stay of the English proceedings pursuant to CPR 11(6) on the basis that the parties’ exclusive jurisdiction clause points to the Paris Commercial Court. English courts generally uphold exclusive jurisdiction clauses unless strong reasons are shown not to do so. Costs will usually follow the event and be payable by the claimant.

Worked Example 1.4

Foxtrot LLC (USA) is served with an English claim form in New York, without the claimant having obtained permission to serve out of the jurisdiction. Foxtrot promptly files an acknowledgment ticking “intend to contest jurisdiction” within 14 days of deemed service and applies within the next 14 days under CPR 11, arguing that service out was invalid as no permission was sought and no gateway under PD 6B applies. What orders are appropriate?

Answer:
The court is likely to set aside service of the claim form (and may set aside the claim form itself if appropriate) because the claimant failed to obtain the court’s permission to serve out where permission was required. The court may also discharge any interim orders and award Foxtrot its costs of the application.

Practical points, evidence and common pitfalls

• Evidence: The witness statement should set out a clear chronology, deal with service (how, where, when), identify any jurisdiction clause relied on (exhibiting the contract), and address forum factors (location of witnesses, governing law, connection of the dispute to each forum, language, the availability of a fair trial in the alternative forum, and the risk of parallel proceedings).
• Timing: Compute the 14‑day periods carefully using CPR 2.8 and the deemed service rules in CPR 6.14 and 6.26. Where particulars are served separately, the acknowledgment deadline runs from service of the particulars; where served together with the claim form, it runs from deemed service of the claim form.
• Do not file a defence: Filing a defence or attending case management hearings on the merits risks submission. The Part 11 application is the proper procedural vehicle and suspends the need to plead a defence until the application is determined and directions given (CPR 11(7)).
• Forum vs venue: A challenge that England and Wales is not the appropriate forum is a Part 11 jurisdiction argument. By contrast, a domestic request to transfer the case between the High Court and County Court, or between hearing centres, is a CPR Part 30 transfer application and does not dispute jurisdiction.
• Arbitration clauses: Where a binding arbitration agreement applies, use a s.9 Arbitration Act 1996 application for a stay rather than Part 11. The grounds and relief are different, and the statutory stay is mandatory if the conditions are satisfied.
• Service defects: If the claim form has not been served in accordance with CPR Part 6 (e.g., wrong address, method, or out of time), challenge service via Part 11 and consider seeking an order setting aside service and discharging any interim orders (CPR 11(6)(c)).

Key Point Checklist

This article has covered the following key knowledge points:

• A defendant can challenge the court's jurisdiction under CPR Part 11 if they believe the courts of England and Wales lack authority or are not the appropriate forum.
• The process requires filing an acknowledgment of service (CPR Part 10) within 14 days of service of the particulars of claim, specifically indicating the intention to dispute jurisdiction.
• Following the acknowledgment, a formal application notice supported by evidence must be filed within a further 14 days (CPR Part 11).
• Steps that engage with the merits (e.g., filing a defence) risk submitting to the court’s jurisdiction and undermining the Part 11 challenge.
• Typical grounds include an exclusive jurisdiction clause, forum non conveniens, invalid service, or lack of permission to serve out of the jurisdiction.
• If the jurisdictional challenge succeeds, the court may declare no jurisdiction, set aside the claim form or service, discharge any interim orders, or stay proceedings (CPR 11(6)).
• If the jurisdictional challenge fails, the earlier acknowledgment ceases to have effect and the defendant must file a further acknowledgment within 14 days; the court will then give directions for filing a defence (CPR 11(7)).
• Where an arbitration clause applies, a s.9 Arbitration Act 1996 stay is the correct route rather than a Part 11 application.
• Costs of jurisdiction challenges generally follow the event.

Key Terms and Concepts

• Jurisdiction
• Acknowledgment of Service
• Application notice
• Forum non conveniens
• Exclusive jurisdiction clause
• Service out of the jurisdiction
• Stay of proceedings
• Default judgment