Iain Shovlin v Paul Careless & Ors

For enforcement of a foreign judgment at common law, voluntary submission depends on whether the defendant objectively made an unequivocal representation, by words or conduct, that objection was not taken to the foreign court’s jurisdiction. The court must assess all the circumstances and the totality of the conduct. A final foreign ruling on jurisdiction does not create an automatic point beyond which subsequent conduct constitutes submission. The foreign court’s own characterisation is relevant and may be decisive where it is consistent with the English approach. A party in default may attend a prove-up hearing without thereby becoming an active participant or making a general appearance. A short intervention on a non-jurisdictional issue, while expressly maintaining a special appearance and not seeking to participate further, did not amount to voluntary submission.

The claimant sought to enforce in England a Californian default judgment for US$10,066,353 against the defendants. The claim was brought at common law, and the parties agreed that the judgment was final and conclusive and for a definite sum. The issue was whether the Californian court had international jurisdiction over the defendants because they had voluntarily submitted to it.

The defendants had unsuccessfully challenged personal jurisdiction in California. At a later prove-up hearing, their attorney appeared specially and briefly suggested that the Californian court dismiss the proceedings under the statutory five-year rule for failure to prosecute. He stated that he was not opposing the prove-up and did not seek to file a brief. The central issue was whether that conduct constituted a general appearance under Californian law or an unequivocal submission under English law.

1. English law test. The claimant bore the burden of proving the foreign court’s competence. Voluntary submission required an objective and unequivocal representation by word or conduct that objection was not taken to the relevant jurisdiction. The court had to examine the whole context and the totality of the conduct. The test applied equally to submission to an English or foreign court.
2. Effect of the earlier jurisdiction ruling. The fact that the Californian court had finally rejected the jurisdictional challenge did not create a hard stop after which any further conduct amounted to submission. Timing was relevant, but the defendants could still maintain their primary position that the Californian court lacked jurisdiction, provided their conduct was not unequivocal.
3. Californian law. Under the applicable Californian principles, a general appearance involved active participation in a manner recognising the court’s authority to proceed, or seeking a step beneficial to the defendant or detrimental to the claimant other than a jurisdictional challenge. The label “special appearance” was relevant but not determinative. The question remained one of mixed fact and law assessed objectively.
4. Default and the prove-up hearing. A defendant against whom default had been entered was ordinarily out of court and could not take active steps, advance contentions on the merits, or make a motion until default was set aside. The defendants remained in default at the prove-up hearing. Their attorney made only brief submissions after being questioned by the judge, did not raise an informal motion, did not oppose the prove-up, and accepted that he could not file a brief. His conduct therefore did not amount to active participation or a general appearance under Californian law.
5. Judicial estoppel. If the conduct could otherwise have amounted to a general appearance, Californian judicial estoppel would have prevented the claimant from relying on that position. The claimant had successfully maintained at the prove-up hearing that the defendants had made only a special appearance and could not participate actively. That position was totally inconsistent with the case advanced in England.
6. Disposition. The Californian court’s characterisation was a decisive consideration because it was consistent with the English approach. The claimant failed to establish voluntary submission under either Californian or English law. The claim to enforce the judgment was dismissed.