Koninklijke Philips N.V. v Xiaomi Inc

Where a defendant withdraws a jurisdiction challenge under CPR Part 11, the protection against serving a defence under CPR rule 11(9) ceases. The defendant should ordinarily seek an extension of time for serving the defence.

That consequence does not prevent the court from extending time under its case-management powers where the parties previously agreed that no defence was required before an imminent jurisdiction hearing. The court should consider whether an immediate defence would provide proportionate benefit, having regard to existing evidence, duplication, preparation burdens and the efficient determination of the pending application.

Philips brought patent infringement and FRAND proceedings against Xiaomi companies. Xiaomi UK initially challenged jurisdiction under CPR Part 11 and sought, alternatively, a case-management stay. Following a consent order, the parties agreed that the defendants need not file a defence before a May 2021 jurisdiction hearing.

Xiaomi UK later accepted that it had no proper CPR Part 11 challenge but continued to seek a case-management stay. Philips applied for an unless order requiring a defence by 7 May 2021. Xiaomi UK sought an extension of time until at least the jurisdiction hearing. The central issue was whether the earlier agreement should continue to govern despite the withdrawal of the jurisdiction challenge.

1. The application for an unless order was refused. Time for Xiaomi UK to serve its defence was extended until at least the hearing of the jurisdiction application, with further directions left to the judge hearing that application.

2. Under [2009] EWHC 1973, where a defendant withdraws a jurisdiction challenge under CPR Part 11, the protection afforded by CPR rule 11(9) ceases. The defendant must then seek an extension of time if it requires further time to serve its defence. [2020] EWHC 1201 confirmed that principle and treated an alternative approach as heterodox.

3. The consent order expressly linked the agreement not to file a defence before the May hearing to CPR rule 11(9). Its contractual or procedural basis was therefore affected when Xiaomi UK conceded that it had no CPR Part 11 challenge. Nevertheless, the court retained discretion to regulate the proceedings in the particular circumstances.

4. The existing witness evidence sufficiently set out Xiaomi UK's position for determining the case-management stay. Requiring a full defence before the jurisdiction hearing would largely duplicate that evidence, distract from preparation for the hearing and compete with the parties' timetable for reply evidence. It would therefore provide little proportionate benefit.

5. The court continued the parties' agreement as a pragmatic and proportionate case-management solution. If the jurisdiction challenge failed, Xiaomi could not rely on the delay caused by the jurisdiction applications in opposing any later application for expedition. Any necessary defences should ordinarily be served after the jurisdiction application had been determined.

First-instance decision on interlocutory applications. The judgment records earlier orders by Mann J and Bacon J in the same proceedings, but no appellate history.