Sucden Financial Limited v TMT Metals AG & Ors

Where a defendant continues a jurisdiction challenge by seeking appellate review, the court should preserve the defendant’s ability to decide whether to submit to the jurisdiction after the challenge is finally resolved. Under Civil Procedure Rules 1998, rule 11, this may require extending time for a second acknowledgment of service.

That protection does not necessarily require proceedings to be stayed. The court may direct service of a defence and other procedural steps while an appeal is pending, provided that compliance cannot constitute a submission to jurisdiction and the claimant indemnifies the defendant’s reasonable and proportionate costs if the jurisdiction challenge ultimately succeeds. The appropriate directions depend on the circumstances of the case.

The Court of Appeal had already dismissed Mr Gupta’s appeal against Robin Knowles J’s refusal to set aside permission to serve the claim on him out of the jurisdiction. The first-instance decision was [2025] EWHC 2006 (Comm).

This consequential application concerned the timetable for a further acknowledgment of service and defence. Mr Gupta sought an extension until the final resolution of any application or appeal to the Supreme Court, to avoid prejudicing his jurisdictional position. Sucden sought directions requiring a defence while offering a limited undertaking. The central issue was how proceedings should progress while a potential further jurisdiction appeal remained outstanding.

1. The application was allowed in part. The court extended the deadline for Mr Gupta to file a second acknowledgment of service until 14 days after the final relevant appellate event, including the resolution of any Supreme Court appeal. This preserved his right, if his jurisdiction challenge ultimately failed, to decide whether to submit to the English court’s jurisdiction or allow the proceedings to continue undefended.

2. Rule 11 of the Civil Procedure Rules 1998 distinguishes the initial acknowledgment used to challenge jurisdiction from a further acknowledgment filed after that challenge fails. Because rule 11(8) treats the latter as acceptance of jurisdiction, the court held that its timing had to be extended so that a proposed Supreme Court appeal would not be rendered nugatory.

3. The court nevertheless declined to put the proceedings into stasis. It agreed with the approach in Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd [2018] EWHC 1216 (Ch) and Município de Mariana v BHP Group (UK) Limited [2023] EWHC 2607 (TCC): a defendant may be required to serve a defence and take further procedural steps pending a jurisdiction appeal without thereby submitting to jurisdiction. There is no equivalent of rule 11(8) for those steps.

4. That course was appropriate because the jurisdiction challenge had failed twice, there were two independent grounds of jurisdiction, the allegations concerned events over four years old and alleged dishonesty, and the claim had already been delayed for three years. Mr Gupta was accordingly to serve a defence within 28 days of sealing of the order dismissing the appeal, subject to applying for more time.

5. The defence direction depended on Sucden undertaking not to treat compliance with directions as submission to jurisdiction, including for enforcement purposes, and to indemnify Mr Gupta for reasonable and proportionate compliance costs if his jurisdiction challenge succeeded before the Supreme Court. If Sucden did not give those undertakings, time for the defence would instead run until 14 days after Mr Gupta filed a further acknowledgment of service.

• Court of Appeal (Civil Division): In this consequential ruling, the court fixed protective directions following dismissal of the jurisdiction appeal, including an extended deadline for a further acknowledgment of service.
• Court of Appeal (Civil Division): The court had dismissed Mr Gupta’s appeal against the jurisdiction decision in [2026] EWCA Civ 986 .
• Commercial Court: Robin Knowles J dismissed Mr Gupta’s application to set aside permission to serve proceedings out of the jurisdiction: [2025] EWHC 2006 (Comm) .