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On 16 July 2021, the High Court decided that the ‘necessary or proper party’ jurisdictional gateway (CPR PD6B, paragraph 3.1(3)) cannot be used to bring a foreign defendant into the jurisdiction where the anchor defendant could have contested jurisdiction but voluntarily accepted service of the claim form, and granted the Second Defendant’s application to set aside service out.

This significant decision considers the function of anchor defendants and the scope of the anomalous ‘necessary or proper party’ jurisdictional gateway. In reaching its conclusion the Court followed the House of Lords decision in John Russell & Co Ltd v Cayzer Irvine & Co Ltd [1916] 2 AC 298. The judgment leaves open the question whether the Court of Appeal’s decision The Benarty [1983] 1 Lloyds Rep 361 confines the principle to cases in which the anchor defendant voluntarily submitted to the jurisdiction after issue of the claim form, but not those in which the defendant voluntarily submits prior to the issue of the claim form – because the question did not arise on the facts of the case.

The decision also serves as a further reminder that the risk of multiple proceedings will not serve as a trump card when considering the issue of forum conveniens. Indeed, such a risk may carry no weight when brought about solely by the voluntary submission of an anchor defendant.

Adam Baradon and Barnaby Lowe acted for the successful Second Defendant.

The judgment is available here.

Clerks

Staff