Navig8 PTE Limited v Al -Riyadh Co

Where a foreign defendant challenges the jurisdiction of the English court, a summary judgment application should ordinarily be listed after the jurisdiction challenge, not immediately following it at the same hearing. The defendant must have a real opportunity, after the jurisdiction challenge has been decided, to decide whether to submit to the English jurisdiction and defend the merits. It should not be required to incur the expense of preparing for the merits while its jurisdiction challenge remains pending. Listing both applications together is appropriate only in very rare cases. A court deciding a listing application should not assess the merits of the proposed summary judgment application or treat the defence as hopeless. The ordinary sequence may be maintained where postponement causes no undue delay or material prejudice.

Navig8 PTE Limited, a Singaporean time charterer, brought proceedings seeking an anti-suit injunction and declarations concerning cargo claims pursued by Al-Riyadh Co in Jordan. Al-Riyadh, a Jordanian company, acknowledged service while indicating an intention to challenge the English court’s jurisdiction under CPR 11. It then applied under CPR 11 to set aside service. Navig8 subsequently applied for summary judgment on two declaratory claims.

The issue was whether the jurisdiction challenge and the summary judgment application should be listed together, so that summary judgment could potentially be heard immediately after the jurisdiction challenge.

1. Applications not listed together. The jurisdiction challenge was to be listed first. The summary judgment application was to await the outcome of that challenge and be listed subsequently if necessary.
2. Under CPR 11(7), a foreign defendant whose jurisdiction challenge fails ordinarily receives a further period of 14 days to decide whether to enter a further acknowledgment of service and contest the claim on its merits. That procedural opportunity should be real and should arise after the jurisdiction challenge has been heard and decided.
3. It is contrary to principle to require a foreign defendant challenging jurisdiction to prepare for the merits before the jurisdiction issue is determined. The fact that the proposed summary judgment application may involve only a short construction point, or that the claimant considers the defence hopeless, does not justify deciding the merits at the listing stage.
4. The principles in European Capital Trade Finance Ltd v Antenna Hungaria RT [1995] CLC 530 and Speed Investments Ltd v Formula One Holdings Limited [2005] 1 WLR 1233 were applied. Listing the applications together is appropriate only in very rare cases, having regard both to the defendant’s procedural opportunity after the jurisdiction challenge and to the unfairness of requiring premature merits preparation.
5. Moloobhoy v Kanani [2012] EWHC 1670 (Comm) was distinguishable. It concerned a domestic defendant within the jurisdiction, so the underlying considerations applicable to a foreign defendant served out of the jurisdiction did not apply.
6. There was no undue delay or unfairness in proceeding sequentially. The summary judgment sought would not itself immediately affect the Jordanian proceedings, and there was no evidence of imminent prejudice to Navig8.