Ablynx NV & Anor v Vhsquared Ltd & Ors

An order requiring a defendant to serve a Defence can be made without compromising a pending challenge to the court’s jurisdiction. Such an order is not automatic. The court must assess the parties’ competing prejudice, including the costs of preparing the Defence and any risk of delay or wasted argument concerning submission to the jurisdiction. Where the prompt progress of proceedings principally depends on an impending appeal, the appropriate course may be to leave procedural directions to the appellate court.

The claimants sought an order requiring the defendants to serve their Defence within a few weeks and sought a trial date. The defendants were challenging the jurisdiction of the English court and had appealed, with permission, against an earlier order refusing a stay under the Brussels I Regulation recast. The claimants relied on Deutsche Bank AG London Branch v Petromena ASA, [2015] EWCA Civ 226, and Conversant Wireless Licensing SARL v Huawei Technologies Company Limited, [2018] EWHC 2016 (Ch). The central issue was whether the claimants would suffer sufficient prejudice if no immediate order for service of the Defence were made.

1. The application for an immediate order requiring service of the Defence was refused. The time for service of the defendants’ second acknowledgment of service was extended until the appeal had been finally determined.

2. Following Deutsche Bank AG London Branch v Petromena ASA, [2015] EWCA Civ 226, and Conversant Wireless Licensing SARL v Huawei Technologies Company Limited, [2018] EWHC 2016 (Ch), the court held that requiring service of a Defence could be ordered without affecting the defendants’ challenge to jurisdiction. The authorities did not establish that such an order should be made automatically.

3. The relevant question was the balance of prejudice. The claimants faced possible delay, but an order made before the appeal would not materially accelerate resolution if the appeal were expedited. The defendants would incur the costs of preparing a Defence and might incur further costs addressing an argument in Brussels that service and the fixing of a trial date amounted to submission to the English jurisdiction.

4. The decisive practical consideration was whether the Court of Appeal considered that the appeal merited expedition. If it did, it could give directions for the pleadings or remit that issue to the Patents Court. The balance of prejudice therefore favoured making no order requiring immediate service of the Defence.

The judgment records that the defendants had permission to appeal the substantive part of an earlier order dated 29 March 2019, which had refused a stay. The defendants undertook to seek expedition of that appeal. No citation for the earlier judgment is stated.