KB-2025-001929 - [2025] EWHC 2966 (KB)

When one examines the defendant’s application dated 10 June 2025, two vital features are clear. First, the defendant stated in terms in its acknowledgement of service that it intended to contest this court’s jurisdiction. The claimants recognise that in their skeleton argument at para 4.3. It is difficult for the claimants to aver otherwise given that on 28 May 2025, Mr Du wrote to this court in these terms:

“This document is submitted in anticipation of the Defendant’s intended challenge under CPR 11.1, as noted in their Acknowledgment of Service dated 27 May 2025. It outlines the basis for jurisdiction including the UK location of services, damages, contractual conduct, and the Defendant’s UK incorporation.”

Second, that the substance of the defendant’s application leaves no room for doubt but that the court’s jurisdiction was contested on the basis of the arbitration clause in the SA. Put another way: a jurisdiction dispute is the obvious consequence of reliance on the arbitration clause. There can be no other sensible interpretation. It is also of significance that the defendant’s stay application on 10 June 2025 was filed on the last day for a CPR 11(4) application to dispute the court’s jurisdiction and the defendant took the section 9/Part 62 route to challenge, in my view correctly.

Examining matters in light of Bean LJ’s judgment in Pitalia, the three documents referred to at para 36 of his judgment as making “the intentions clear” can be compared with this case.

One must look at the circumstances in the round. Ticking the box is plainly not in itself sufficient to challenge jurisdiction. Looking more widely, I conclude that this is a case where the approach of the Court of Appeal in Pitalia would directly apply if a Part 11 application were necessary, although I have indicated that I do not consider it was. The defendant did not make an express Part 11 application disputing jurisdiction. To the extent that it should have done so, this can only amount to a technical and procedural error. It is precisely the purpose of CPR 3.10 to correct such errors.

I cannot accept the claimants’ submission in their skeleton argument (para 4.6) that the defendant’s stay applications cannot amount to a valid jurisdiction challenge. It is clear at all points that the defendant disputed this court’s jurisdiction in favour of the arbitral proceedings relying on the validity of clause 3 of the SA. Thus the claimants’ argument that the defendant’s conduct “amounts to procedural evasion and forum manoeuvring, and seriously undermines the integrity and coherence of the CPR 11 jurisdictional process” misses the point. The defendant is not improperly seeking to manoeuvre or manipulate forum. The defendant seeks to enforce an arbitration clause in what it claims to be a valid contract entered to by both the defendant and Orange.

I cannot see how there can be any material prejudice to the claimants resulting from the jurisdiction challenge under section 9 as opposed to Part 11. Nothing in the substance of the defendant’s challenge changes. The arguments are identical. The defendant still relies on the arbitration clause in the SA. The claimants still dispute the validity of that clause and indeed the existence of the SA in its entirety. Nothing in those implacably entrenched positions changes. I note the pragmatic and principled approach of Bacon J in Tintometer at para 61:

“It is therefore appropriate to grant relief so as to correct the defendants’ errors of procedure in not ticking the “dispute jurisdiction” box on the acknowledgement of service form and not expressly raising a r. 11 application in their strike out application.”

In the instant case, Shein did “tick” the jurisdiction dispute box. That does not require remedying. However, it did not expressly raise a Part 11 application and if that were procedurally required, I exercise my discretion to correct the error under CPR 3.10, although I remain unconvinced it was necessary. As a result, the defendant will not “be treated as having accepted that the court has jurisdiction to try the claim” under CPR 11(5). Instead, as in Pitalia, and in the event it is necessary, the defendant’s stay applications will also be treated as if made as an application disputing jurisdiction under CPR 11(1).

The claimants’ application for a declaration that the defendant is to be treated as having accepted this court’s jurisdiction is dismissed.