Plekhanov v Yanchenko

A defendant who wishes to contest jurisdiction must file an acknowledgment of service and make the jurisdiction application within the prescribed period. Failure to do so results in deemed acceptance of jurisdiction under CPR r. 11(5). The court may extend time retrospectively, applying the relief from sanctions principles, but an extension requires a serious analysis of the breach, any good reason, and the interests of justice. Litigants in person are not generally entitled to a lower standard of compliance. Where jurisdiction has been accepted and no defence is served within the applicable time, default judgment may be entered. A late certificate of service does not invalidate default judgment if service itself is proved.

Mr Plekhanov claimed US$786,530 from Mr Yanchenko under a written agreement concerning restoration of the balance of an investment account. The agreement was governed by English law and contained an English jurisdiction clause, alongside a provision requiring negotiations in the event of a dispute.

Mr Yanchenko served an acknowledgment of service late, attempted to challenge jurisdiction through defective and late filings, and did not serve a defence. He argued that the jurisdiction clause had not been complied with, that the claim had been compromised, and that pre-action requirements had not been followed.

The court determined the jurisdiction application and the claimant’s application for default judgment.

1. Jurisdiction application dismissed. The acknowledgment of service was not filed within the prescribed period. The subsequent jurisdiction application was also late and was not made in the form required by CPR Part 11. Under CPR r. 11(5), Mr Yanchenko was therefore deemed to have accepted the court’s jurisdiction.
2. The court had power to grant a retrospective extension of time, applying by analogy the three-stage approach identified in Zumax Nigeria Ltd v First City Monument Bank plc [2016] 1 CLC 953 (CA): whether the breach was serious or significant, whether there was a good reason, and what justice required having regard in particular to efficient litigation and proportionate cost. The breaches were serious and significant, no good reason was established, and the overall circumstances did not justify an extension.
3. Mr Yanchenko’s status as a litigant in person and his first language did not justify a lower standard of compliance. The approach in Barton v Wright Hassall LLP [2018] 1 WLR 1119 (SC), supported by the authorities there discussed, applied. The rules were accessible, repeated warnings had been given, and the claimant would suffer prejudice from further delay.
4. The court nevertheless considered the merits. Clause 9 was an English jurisdiction agreement within Article 25(1) of the Brussels I Recast Regulation. The negotiation requirement was insufficiently clear to operate as a condition precedent, but, even if enforceable, it had been satisfied by the parties’ physical and telephone discussions. The alleged compromise and pre-action arguments did not defeat jurisdiction.
5. Default judgment entered. The defendant had filed no defence within the applicable period. The late filing of the certificate of service did not invalidate the application because service was proved. Applying Flame SA v Primera Maritime (Hellas) Ltd [2009] EWHC 1973 (Comm), the defence deadline had expired. No extension was justified. Judgment was entered for US$786,530 plus statutory interest.

First-instance decision. No earlier judgment or appeal is stated in the judgment.