When a defendant believes proceedings shouldn’t have been brought in the courts of England and Wales at all, they can apply under CPR 11 to challenge the court’s jurisdiction. Get this application right, and it can bring a claim to an end before it properly starts. Get it wrong, or pursue it unreasonably, and the costs consequences can be significant.

For solicitors advising on cross-border or service-related disputes, understanding how costs follow a jurisdiction challenge is just as important as understanding the substantive test itself.

What Is a Jurisdiction Challenge Under CPR 11?

CPR 11 sets out the procedure for disputing the court’s jurisdiction to try a claim. A defendant who wants to challenge jurisdiction must do so within 14 days of filing an acknowledgment of service, and the application must be supported by evidence. If a defendant files an acknowledgment of service but doesn’t make a CPR 11 application within that window, they’re treated as having accepted that the court has jurisdiction, so timing here is critical.

Jurisdiction can be challenged on several grounds, including defective service, an argument that England and Wales isn’t the appropriate forum (forum non conveniens), or the existence of a jurisdiction clause pointing to a different court entirely. Where a defendant has been served outside the jurisdiction, they may also challenge whether the claimant had permission to serve out, or whether a recognised “gateway” for jurisdiction actually applies.

The Costs Consequences of a Successful Challenge

Where a defendant successfully challenges jurisdiction, the general rule under CPR 44.2 applies as it would to any other application: the unsuccessful party, here the claimant, will usually be ordered to pay the defendant’s costs of the application. In practice, this means a claimant who issued proceedings in the wrong forum can face a costs order before the substantive dispute has even been considered, on top of having to start again elsewhere if they still wish to pursue the claim.

Because jurisdiction applications often involve detailed evidence on service, forum, or contractual jurisdiction clauses, the costs of successfully resisting proceedings on jurisdictional grounds can be substantial, even though the underlying merits of the claim are never reached.

The Costs Consequences of an Unsuccessful Challenge

Where a jurisdiction challenge fails, the defendant will typically be ordered to pay the claimant’s costs of the application, again reflecting the general rule that costs follow the event. The claim then proceeds in the usual way, but the defendant has incurred a costs liability for an application that, with hindsight, was never going to succeed.

This is one of the key strategic considerations before bringing a CPR 11 application: a jurisdiction challenge isn’t a low-risk, no-cost way of testing the water. It carries the same costs exposure as any other contested application, and a weak challenge can add cost and delay without ultimately changing where the case is heard.

Indemnity Costs and Jurisdiction Challenges

Costs on a jurisdiction challenge aren’t always assessed on the standard basis. Where a party has behaved unreasonably – for example, by ignoring a clear and previously agreed jurisdiction clause, or by pursuing an application with little realistic prospect of success – the court retains discretion to order costs on the indemnity basis instead.

This removes the requirement that any doubt over reasonableness be resolved in the paying party’s favour, making the assessment considerably more favourable to the party receiving costs.

This possibility gives real weight to the underlying merits of a jurisdiction challenge. A claimant who has clearly ignored an exclusive jurisdiction clause when issuing proceedings, or a defendant who challenges jurisdiction on tenuous grounds simply to cause delay, both risk a costs order that goes beyond standard recovery.

Jurisdiction Challenges and Third-Party Costs

Jurisdiction issues don’t only arise between a claimant and defendant. In Gorbachev v Guriev, the Court of Appeal considered how costs should be dealt with where a non-party challenged jurisdiction in response to a disclosure application made against them. The trustees involved successfully argued that the usual principle protecting non-parties who resist disclosure applications – that they should generally recover their costs unless they’ve behaved unreasonably – should still apply, even though they had also raised, and lost, a jurisdiction argument along the way.

The case is a useful illustration that costs principles around jurisdiction challenges can interact with other, more specific costs rules, and that treating a jurisdiction argument as entirely “self-standing” for costs purposes isn’t always the right approach.

What This Means in Practice

For claimants, the key lesson is to check service and jurisdiction carefully before issuing proceedings, particularly in any dispute with an international or contractual jurisdiction element, the costs of getting it wrong can be incurred before the real dispute is even engaged with.

For defendants, a jurisdiction challenge under CPR 11 can be a powerful tool, but only where there’s a genuine basis for it. Bringing one speculatively, or failing to properly evidence it within the 14-day window, carries real costs risk rather than being a cost-free first move.

Quick FAQs

What happens if a defendant misses the 14-day deadline to challenge jurisdiction? They’re treated as having accepted the court’s jurisdiction to try the claim, and can no longer challenge it under CPR 11.

Can indemnity costs be awarded on a jurisdiction challenge? Yes, where a party’s conduct in bringing or resisting the challenge is found to be unreasonable, the court has discretion to order costs on the indemnity basis rather than the standard basis.

Does losing a jurisdiction challenge mean losing the whole case? No. If a challenge fails, the substantive proceedings simply continue in the usual way – the defendant has only lost the jurisdiction argument, not the underlying claim.

How Greener Costs Can Help

Our team of costs lawyers and costs draftsmen advises solicitors on the costs implications of jurisdiction challenges and other contested applications, including how indemnity costs risk should factor into litigation strategy. If you’d like advice on costs exposure where jurisdiction has been challenged in your case, get in touch with the Greener Costs team today for a free, no-obligation discussion; call us on 01204 263047 or email info@greenercosts.co.uk.