The Dekagram: 24th March 2025

The current glut of cases on service outside the jurisdiction and on jurisdictional challenges more generally continues, and with no sign yet of the EU acceding to the UK’s attempt to join the Lugano Convention club, we see no reason why this type of satellite litigation should cease any time soon. We detect a willingness on the part of the English courts to accept jurisdiction, not only in group claims such as the UEFA litigation (on which more here: The Doctrine of Foreign Acts of State Clarified: Abram and Others v UEFA [2025] EWHC 483 (KB) – Deka Chambers – Barristers Chambers), but in individual claims as well.

Service out of the Jurisdiction: Crossroads Corporate Finance (UK) LLP v Ontario Management Ltd [2025] 3 WLUK 160

This case concerned a Claimant company which claimed that it had provided financial advice and had not been appropriately renumerated.  Whilst the First and Second Defendants were companies registered in England, the Third Defendant was an individual who was resident in Germany. Whilst the Third Defendant had solicitors in England, they had been instructed not to accept service of proceedings.

Therefore, the Claimant had to serve the documents in Germany.  The Claimant had followed the appropriate procedure and delivered proceedings to the Foreign Process Section of the High Court, however, the proceedings were not served in Germany within the lifetime of the claim form.

As a result, the Claimant applied for and was granted without notice orders both for permission to serve outside of the jurisdiction and for permission to extend time for service.

This judgment concerned the Third Defendant’s application to set aside those orders.  The Third Defendant’s application had two reasons behind it: first it claimed that the Claimant had failed to comply with their duty of full and frank disclosure and secondly, it claimed that there was no good reason to extend time, as proceedings had been issued towards the end of the limitation period (six years, as it was a contractual claim), and no reasonable steps had been taken to serve the proceedings within the prescribed period.

The Third Defendant’s application was refused.  The Court applied the case of ST v BAI (SA) (t/a Brittany Ferries) [2022] EWCA Civ 1037, where the Court of Appeal made clear that whilst it may be “lacking in prudence” to leave the service of documents in a foreign jurisdiction until close to the expiry of limitation, that is not a factor which overwhelms all other factors. 

Indeed, in this case, it was relevant to the assessment of whether there was a good reason to extend time for service that:

• The Claimant had not left service to the very last minute (albeit they could have acted more promptly).
• The Claimant had taken reasonable steps to effect service, namely attempting to liaise with the Third Defendant’s solicitors; applying for alternative means of service (albeit unsuccessfully); attempting to negotiate with the Third Defendant directly.
• The Claimant had also made the application to extend time within time (and not at the very last moment).
• The Third Defendant had been sent a copy of the claim form for information purposes and therefore was not prejudiced.
• Not allowing the application would cause delays (as there were other claims for which the limitation period had not expired), and prejudice the other Defendants.
• The delays in the Foreign Process Section and those caused by the German authorities were outside the Claimant’s control.

It was further found that the Claimant had not failed to exercise full and frank disclosure.  The Court applied the case of Alexander Tugushev v Vitaly Orlov, Magnus Roth, Andrey Petrik [2019] EWHC 2031 (Comm), which helpfully summarises the law on the duty to provide full and frank disclosure at without notice applications at paragraph 7.

To conclude, this case is a helpful reminder that even if limitation is soon expiring and service is necessary outside of the jurisdiction, there are steps that can be taken which will make an application for permission to extend time more likely to be successful.  These include providing a copy of the claim form to the Defendant, making the application to extend time as promptly as possible and evidencing that reasonable steps were taken to adhere to effect service as promptly as possible given the circumstances of the case.

About the Author

Megan Bithel-Vaughan gained tenancy having completed pupillage at Deka Chambers. She has already been led by Sarah Prager KC in a case of significant value involving complex issues around the interpretation of the Montreal Convention, and in particular the interplay between the operation of the partial compensation cap and contributory negligence.

Challenging the Jurisdiction of the English Courts: Alesayi v Bank Audi S.A.L. [2025] EWHC 440 (KB) and Da Silva & Others v Brazil Iron Ltd & Another [2025] EWHC 606 (KB)

The High Court has expressed its unwillingness to spend significant amounts of time on jurisdictional challenges on occasions too numerous to mention; and yet, here we all are, again. Regular readers, and indeed anyone who undertakes cross border claims, will know that although the Court regularly emphasises just how straightforward and easy it is to determine whether the courts of England and Wales should have jurisdiction over any particular matter, in fact the patchwork of rules, authorities and judicial trends renders the whole question of jurisdiction nightmarishly unpredictable. It’s almost as if we could do with either some definitive judicial guidance, or a wholesale reform of the rules governing jurisdiction. In the absence of either, however, we plough on, taking note of the plethora of (sometimes conflicting) authorities, all of which tell us that whether or not the courts will accept jurisdiction remains a matter falling within the wide discretion of the court and therefore not suitable for appeal or other satellite litigation.

Disclosure in jurisdictional challenges

In Alesayi v Bank Audi S.A.L. [2025] EWHC 440 (KB) the defendant was partially successful in its appeal against interlocutory case management orders in its jurisdictional challenge. Briefly, the Masters at first instance had made various orders for disclosure in relation to the defendant’s challenge to the jurisdiction of the courts of England and Wales. The defendant appealed these orders.

The claimant in the main action (and respondent in the appeal) is a Saudi Arabian national who has become a British citizen, having previously been granted indefinite leave to remain in the UK. The appellant/defendant bank is a joint stock company based in Beirut, Lebanon. The claimant holds ten accounts with the defendant bank and, by a letter dated 22^nd August 2022, asked the bank to transfer certain of his funds to bank accounts in Switzerland. By a letter dated 5^th September 2022, the bank refused to comply with the transfer request, for reasons which need not detain us but which revolve around the Lebanese banking crisis which came to a head in 2019 and hasn’t improved since. The claimant alleges that he is a consumer domiciled in the UK and has a consumer contract for banking services with the defendant. As such, and because the defendant directed banking services to the UK, he maintains, he is entitled to serve the appellant out of the jurisdiction as of right. He seeks, as a matter of Lebanese law, a mandatory order for specific performance requiring the appellant to undertake the transfers requested.

The defendant responded to the service of proceedings by challenging the jurisdiction of the English courts on the basis that the banking agreement between the parties features an exclusive jurisdiction clause in favour of the courts of Lebanon. The claimant had served the bank out of the jurisdiction pursuant to s.15B(2)(b) of the Civil Jurisdiction and Judgments Act 1982 and so it was fundamental to proper service having been effected that he should be able to show that the bank fell within s.15E and in particular that the banking agreement was:

“a contract which has been concluded with a person who—

(i) pursues commercial or professional activities in the part of the United Kingdom in which the consumer is domiciled, or

(ii) by any means, directs such activities to that part or to other parts of the United Kingdom including that part,

and which falls within the scope of such activities”

The disclosure ordered by the Masters was said by the claimant to go to the issue of whether or not the bank directed its activities to the UK.

The parties did not agree as to the legal test for ordering disclosure in the context of a jurisdictional challenge, the claimant contending that once a prima facie case for jurisdiction has been established, disclosure should be ordered if it is necessary for the fair disposal of the challenge, and the defendant asserting that disclosure in such circumstances should only exceptionally be ordered.

On appeal Dexter Dias J, in considering a line of authorities dealing not only with jurisdictional but other issues, made the overarching point [at 48] that:

“Observations about unusualness, exceptionality or rarity without more should not be substituted for the applicable test, accurate though they may be about the black swan occurrence of cases that in fact meet the test.”

Simply because a judge, even a very eminent one, may have considered that it would be likely to be rarely that a test might be satisfied does not mean that courts should thereafter determine cases on the basis that they would grant applications only if exceptionality were proven, and it is a fallacy to suggest otherwise. As a matter of logic this must be right – and, respectfully, it is helpful for the High Court to have reminded practitioners of the fact. As a result, so Dexter Dias J held, the two-stage test contended for by the claimant was the appropriate legal test; there was no need to show that the case was exceptional, although as a matter of fact it was likely that it would be unusual for a litigant to meet the test: “Satisfying the two-stage test is “out of the norm” because the two-stage test is hard to meet.”

Having found for the claimant on the legal test, however, the judge went on to consider whether the Masters had been correct to grant the disclosure orders made. In doing so he repeated [at 52] the often heard refrain that it will only be in rare cases that disclosure is ordered in this context, or that the appellate courts should be troubled with a jurisdictional challenge:

“I concur with the appellant that disclosure in a jurisdiction challenge should in general be limited and is likely to arise only rarely or exceptionally. I recognise that there must be the “clearest possible demonstration” that the disclosure sought is necessary for the just disposal of the application. If this arduous element, which is materially equivalent to the reasonable necessity test, is not met, there should not be disclosure. Necessity is a hard test to meet. It is not met by evidence that may assist or support the party’s case generally. The test is far more demanding. The court’s intrusive and coercive power can only be exercised if disclosure is necessary rather than desirable. This feeds into the “pragmatism” the appellant justifiably proposes: this is an interlocutory application and is invariably determined on the written evidence.”

Alas! He then found it necessary to grant the appeal in part, but only in part, thus rather undermining the point; in Alesayi, not only was disclosure ordered, but an appeal on an interlocutory case management decision in a jurisdictional challenge was partially successful. As the judge noted, the parties’ combined costs of dealing only with the disclosure element of the challenge had reached £750,000 by the time he heard the appeal; a sum personal injury practitioners can only gawp at in astonishment. It remains to be seen whether his remonstrance that it “would have been better for both parties and better use of court time if they had expended their money and their energy on fighting the merits of the claim” will be heeded by litigators in future cases; or whether the result of the appeal will prove to be an irresistible inducement to parties to apply for disclosure and/or to appeal interlocutory case management orders in jurisdictional challenges.

Comparison of legal systems in jurisdictional challenges

Another area in which the courts’ words and deeds can sometimes betray a certain dissonance is in the consideration of rival jurisdictions and whether their legal systems might be inadequate to the task of hearing a particular claim. As a matter of judicial comity the English courts have repeatedly stated that it is only extremely rarely that they will accept jurisdiction on the basis that the English legal system is more capable of dealing with a case fairly than that of the rival jurisdiction.

Which brings us to Da Silva & Others v Brazil Iron Ltd & Another [2025] EWHC 606 (KB), in which the High Court accepted jurisdiction over a claim brought by 103 Brazilian claimants in respect of a Brazilian mine alleged to be operated by English companies. The claim, which is governed by Brazilian law, is for environmental and physical damage to land, and for various forms of harassment on the part of mine employees. Other claims have also been brought in Brazil against various parties, though not these defendants.

Against this backdrop, the defendants challenged the jurisdiction of the English courts on the basis that the claim should more appropriately be dealt with by the Brazilian courts. The challenge failed.

The Brazilian experts instructed by the parties (Mr Reis for the claimants and Mr Britto for the defendant) gave the following fascinating insight as to the Brazilian legal system [21]:

“a. A large number of environmental claims are filed in the courts of Brazil (though Mr Reis points to procedural or structural difficulties which they may face).

b. Brazilian law provides for multiple claims to be joined where there is a sufficient connection between them, though Mr Reis emphasizes that the effectiveness of this course depends on the homogeneity of the damages suffered. Mr Britto considers that the present claims would be joined, but Mr Reis considers that the diversity of the ways in which the alleged victims were affected means that joinder would not be practical or efficient.

c. There is provision under Brazilian law for claims by persons aged over 60 to be processed with greater priority, though the experts differ on whether this would make a difference in the present case.

d. The Bahia CPA is based on the same “harmful fact” as this litigation but the CPA could not be directed against the English Defendants. Individual and collective material damages and collective “moral” damages will be recoverable if the CPA succeeds. The experts differ as to whether the claimants could recover individual moral damages. The experts differ on whether the Office of the Federal Public Defendant has sufficient resources to complete the CPA effectively.

e. Ordinary civil claims for the same cause of action can be brought in Brazil despite the existence of the CPA.

f. Under Article 4 of the Environmental Crimes Law, if the Claimants sue BIML and are awarded damages, and BIML cannot financially bear the loss, they could enforce their judgment against the Defendants.

g. Brazilian law provides for “free legal assistance” under Article 5, LXXIV of the Federal Constitution, where a litigating individual cannot bear the costs of hiring a lawyer. Such individuals have a right to representation by the Public Defender’s Office.

h. There is also “free legal aid” under Law 1.060/1950 and Article 98 of the Civil Procedure Code, which exempts a litigant from paying “procedural fees or costs, such as fees of lawyers (losing party fees), experts, accountants or translators, possible indemnities to witnesses, costs such as DNA tests and others necessary for the case, deposits for filing appeals or other procedural acts, expenses for sending documents and publications, and other expenses provided for in §1 of Art. 98 of the CPC”. Mr Reis adds that many expenses are not covered by free legal aid, such as per diem expenses of the parties’ witnesses and the cost of “expert assistants” (see the next paragraph).

i. Mr Reis also states that except in exceptional cases, a party must advance payment to their expert and then recover it from the State. Also, the costs which are not covered include “the payment of expert assistants appointed by the parties”, whereas defendant companies can always pay their expert assistants. It was explained to me that in Brazil’s inquisitorial system, the Court appoints an expert to report to the Court whilst individual parties typically appoint expert or “technical assistants” to put forward expert evidence on their behalf.

j. Brazilian lawyers are permitted to enter into a contingency fee agreement (“CFA”). These can provide for success fees of up to 30% of the damages recovered, though market practice varies between ceilings of 10% and 20%. The Civil Procedure Code provides, in addition, for the losing party to pay costs in the same or a similar range.

k. There are examples of Brazilian lawyers who have agreed to represent clients in environmental claims based on such CFAs. Mr Britto believes such cases are quite common. Mr Reis believes they are exceptional and that lawyers work in this way “where there is clear evidence of environmental damage and a high probability of success in litigation”.

l. In respect of the present cases and having regard to an estimate of the damages which each claimant could recover and the costs of bringing the claims, Mr Reis calculates that the claimant’s law firm would sustain a significant loss overall. Mr Britto disagrees.

m. Mr Britto considers it highly likely that the claimants would find lawyers to represent them in this case. Mr Reis believes that the case is not capable of generating interest from any lawyer.

n. Mr Britto believes that the Office of the Public Defender has sufficient resources to provide effective assistance to the Claimants in individual cases. Mr Reis believes that an insufficiency in the number of federal public defenders means that a significant number of regions have insufficient assistance and that the state of Bahia is among the most affected.

o. Pro bono representation exists in Brazil. Mr Britto believes that lawyers could agree to fund these claims in that way. Mr Reis believes it would be unfeasible in this case because of the high operating costs arising from the number of claimants, the likely duration of the case and the need for complex analysis of environmental damages and the use of paid experts.”

Bourne J concluded that Brazil was the forum with which the action had the greater connection, but that the claimants would not be able to obtain substantial justice in that jurisdiction. He came to this conclusion [at 107] because “the evidence reveals a real risk that the Claimants will not be able to fund, or obtain funding for, legal representation of the kind necessary to litigate these claims to a proper conclusion”.

This, the judge emphasised, was not a criticism of the Brazilian legal system per se – but a determination made on the facts of this particular case, namely that:

1. The claims are of relatively low value, both individually and in aggregate;
2. The claimants are of limited means and live in very remote areas, making consultation with legal representatives more difficult;
3. The claims will be complex and expensive to run, and whilst in England they can be undertaken on the basis of conditional fee agreements, in Brazil the availability of legal aid and CFAs is more limited. Recognising this, the defendants had offered undertakings to pay some of the costs of bringing the claims in Brazil, but this was not regarded as a solution to the problem because it would give rise to conflicts of interest and to the possibility of delay caused by quibbling over instruction and expenses.

In coming to his conclusion Bourne J reflected on three authorities in which funding considerations led to a similar conclusion – Connelly v RTZ Corp Plc [1998] AC 854, Lubbe v Cape Plc [2000] 1 WLR 1545, and Lungowe v Vedanta Resources Plc [2019] UKSC 20 – all group claims arising out of the working of mines abroad alleged to have been operated by English companies. There is no reason why his reasoning should not be followed outside this context, however, if, as Bourne J considered, it is “a case of that exceptional kind, where there is not merely a difference in the availability of funding in the two jurisdictions but a real risk that substantial justice will not be obtained in the foreign jurisdiction” due to lack of funding.

It is tentatively suggested therefore that we may see an increasing focus on funding (or the lack of it) in foreign jurisdictions, in an attempt to persuade judges hearing jurisdictional challenges that the claims can only be brought satisfactorily within the English courts.

Ironic, really, given the almost complete lack of civil legal aid within this jurisdiction.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.