Sucden Financial Limited v TMT Metals AG & Ors [2026] EWCA Civ 1080

[2026] EWCA Civ 1080Case No CA-2025-002647
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 2006 (Comm)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Robin Knowles J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/08/2026
Before
SIR GEOFFREY VOS(MASTER OF THE ROLLS)LADY JUSTICE ELISABETH LAINGLORD JUSTICE FOXTON
Between
SUCDEN FINANCIAL LIMITEDRespondent/Claimant(1) TMT METALS AGAppellant/(2) PRATEEK GUPTADefendants(3) MINE CRAFT LIMITEDAppellant
Andrew Trotter (instructed by Fox Williams LLP) for Second DefendantJason Robinson KC and Charles Littlewood (instructed by Macfarlanes LLP) for Claimant
Approved JudgmentThis judgment was handed down remotely at 2pm on Monday 10 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]On 31 July 2026, the court handed down judgment ([2026] EWCA Civ 986) dismissing Mr Gupta’s appeal against the decision of Mr Justice Robin Knowles (“the Judge”) of 30 July 2025. The Judge had dismissed Mr Gupta’s application to set aside the order granting Sucden permission to serve these proceedings on Mr Gupta out of the jurisdiction.[2]In his order addressing the issues arising consequential on his judgment,

the Judge made the following directions for the future conduct of the proceedings:

“The deadline for the Second Defendant to file an acknowledgment of service/defence is extended as follows: a. If the Second Defendant makes an application for Permission to Appeal the refusal of the Jurisdiction Application to the Court of Appeal and permission is refused, the deadline for filing an acknowledgment of service is extended until 14 days after that refusal. In this scenario, the deadline for the Defence is extended until 14 days after the aforementioned deadline for filing the acknowledgment of service. b. If the Second Defendant makes an application for Permission to Appeal the refusal of the Jurisdiction Application to the Court of Appeal and this application is granted, but ultimately the appeal is unsuccessful then the deadline for filing an acknowledgment of service is extended until 14 days after the outcome of the appeal and the deadline for the Defence is extended until 14 days after the aforementioned deadline for filing the acknowledgment of service. c. If the Second Defendant makes an application for Permission to Appeal the refusal of the Jurisdiction Application to the Court of Appeal and this application is granted, and the appeal succeeds in whole or in part, the timetable of these proceedings following the outcome of the appeal is to be agreed or dealt with as directed by the Court of Appeal. d. If the Second Defendant does not make an application for Permission to Appeal the refusal of the Jurisdiction Application to the Court of Appeal, the Second Defendant may file an Acknowledgment of Service by 4pm on 10 November 2025, this being 14 days after the day on which the 21 day deadline for making an application for Permission to Appeal to the Court of Appeal expires. In this scenario, if an Acknowledgment of Service is filed, the deadline for filing a Defence is extended until 24 November 2025. If an Acknowledgment of Service is not filed in this scenario, the deadline for filing a Defence is 10 November 2025.”
[3]Mr Trotter asks the court to vary that order to allow for the possibility that Mr Gupta might decide to seek permission to appeal to the Supreme Court. He submits that:
“in order to avoid his right of appeal being rendered nugatory, Mr Gupta therefore seeks directions that time for service of any further acknowledgement of service and Defence run from the final resolution of any such application or appeal, or the expiry of time for making them.”
[4]Mr Gupta’s concern arises from the terms of CPR 11: i) This provides that a defendant served with a claim who wishes to dispute the court’s jurisdiction should file an acknowledgement of service, but provided a timely challenge is made to the court’s jurisdiction, the filing of that first acknowledgement of service will not prejudice any jurisdictional challenge (CPR 11(1) to (3)). ii) If that jurisdictional challenge fails, the acknowledgement of service filed ceases to have effect, and the defendant has 14 days to file a further acknowledgement of service (CPR 11(7)). iii) However, if the defendant does file a further acknowledgement of service, “he shall be treated as having accepted that the court has jurisdiction to try the claim” (CPR 11(8)).

The progression of proceedings during a pending appeal on jurisdiction

[5]The usual course adopted when a party who has lost a jurisdiction challenge seeks to appeal to this court is set out in Deutsche BankAG London Branch v Petromena ASA [2015] EWCA Civ 226, [2015] 1 WLR 4225. Floyd LJ stated at [35]:
“ … The correct course for a defendant who has failed in a jurisdiction challenge and who wishes to appeal is to ask for an extension of time for filing the acknowledgment of service sufficient to enable his application for permission to appeal, or his appeal, to be determined. It is quite unrealistic to suppose that a sensible claimant, or if not the court, would refuse such an extension when the effect of such a refusal would be to render the appeal nugatory. … .”
[6]At [52], Longmore LJ stated:
“The course to be followed by a defendant, who wishes to appeal from a judge's decision that the English court has jurisdiction to try a claim and does not wish a judgment in default to be entered while it is appealing, is to ask the judge to extend the time for acknowledgment of service pending an appeal or (if she refuses permission to appeal) pending an application for permission to this court and thereafter, if permission is given, the appeal.”
[7]However, extending the time for filing a further acknowledgement of service and for the service of a defence while an unsuccessful jurisdictional challenge is pursued on appeal can entail considerable delay in the progress of the action. That outcome may be particularly unattractive if the jurisdictional challenge appears weak, and where, as in this case, it has already been rejected twice.[8]Those tensions have, not surprisingly, led to attempts to formulate orders which allow the action to be progressed to some degree while any jurisdiction appeal is pursued, while preserving the defendant’s jurisdictional position if the appeal later succeeds.[9]In Toshiba Carrier UK Ltd v KME Yorkshire Ltd [2012] EWCA Civ 169, a jurisdictional challenge to claims for compensation for breach of EU competition law was dismissed. The Court decided to give permission to appeal against that decision, leading the claimants to argue that directions should be given for the filing of acknowledgement of service and a defence while the appeal was pursued, in return for the claimants undertaking not to treat such conduct as a submission to jurisdiction, and the court ordering it would not have that effect. The defendants denied that these measures would provide effective protection, pointing both to CPR 11.8 and Article 24 of the Brussels Convention which provides:
“a court of a Member State for which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction ….”
[10]Kitchin LJ accepted that there was “a very real risk” that, even if the claimants undertook not to treat the filing of a second acknowledgement of service and a defence as the entering of an appearance, and the court made an order in those terms, the effect of CPR Part 11.8 and Article 24 was the defendant might be found to have entered an appearance nonetheless.[11]In Barclays Bank plc v ENPAM [2015] EWHC 2857 (Comm), [2015] 2 Lloyd’s Rep 527, Mr Justice Blair rejected the defendant’s jurisdiction challenge. When the defendant sought permission to appeal, Blair J made an order which provided for the action to continue to the close of pleadings, pending the determination of the application for permission to appeal, and ordered that the steps taken by the defendant in complying with his directions in the meantime would not amount to a submission to the jurisdiction. That order recorded the consent of both parties to the fact that compliance with the court’s directions would not amount to submission to the jurisdiction should the appeal subsequently succeed. The directions given went up to close of pleadings, when a CMC was to take place.[12]After Mr Justice Hamblen had rejected a jurisdictional challenge in Goldman Sachs International v Novo Banco SA ([2015] EWHC 2371 (Comm), [2015] 2 CLC 475), Lord Justice Longmore granted permission to appeal, and directed the parties to seek to agree a similar order to that made by Blair J in the ENPAM case. An issue was raised as to the court’s jurisdiction to make an order of that type, which Longmore LJ remitted for determination in the Commercial Court.[13]The matter came before Blair J and his decision is reported at [2016] EWHC 346 (Comm). By that stage, the court’s jurisdiction to make an order of that kind was not in dispute. Blair J held that it was appropriate to make such an order in that case, noting that the proceedings raised “an important question” which was of wider public interest ([18]). As to the terms of the[14]Toshiba is not referred to in Goldman Sachs but both decisions were cited to Mr Justice Henry Carr in Conversant Wireless Licensing SARL v Huawei Technologies Co Ltd [2018] EWHC 1216 (Ch), [2018] RPC 655. Henry Carr J gave permission to appeal against his decisions on justiciability and a forum conveniens challenge, in a case in which the claimants were asking the court for a declaration as to the terms of a FRAND licence. The claimants asked him to make directions to progress proceedings while the appeal was pending, which the defendant resisted on the basis that requiring it to enter an acknowledgment of service and otherwise participate in the action would render its jurisdictional appeal nugatory. At [19], Henry Carr J distinguished between making an order which would require a defendant to enter a second acknowledgement of service, which he accepted would not be appropriate, and requiring the defendant to serve a defence and take subsequent steps in the proceedings. He considered the balance of prejudice if a stay of proceedings were to be ordered or refused, and concluded that the appropriate course was to extend time for the filing of a second acknowledgement of service, but to order the defendant to serve its defence and to fix a trial date.[15]Finally, in Município de Mariana v BHP Group (UK) Limited [2023] EWHC 2607 (TCC), Mrs Justice O’Farrell faced a similar issue following her rejection of a jurisdictional challenge by one of the defendants, Vale. After referring to Toshiba, Goldman Sachs and Conversant, she observed at [21] that the wording of CPR 11.8 presented a “potential difficulty” to any order requiring Vale to file a further acknowledgement of service while it was seeking to appeal the rejection of its jurisdiction challenge. For that reason, she made an order extending the time for Vale to file any further acknowledgement of service ([21]), but she found that there was no similar difficulty in making other directions. At [26], after referring to a number of decisions in which applications for a stay pending a jurisdictional appeal had been made with varying outcomes, she stated:
“What emerges from those authorities is that the decision is not one of principle but depends on the circumstances in each case; including the stage at which the proceedings have reached, the nature and extent of the procedural steps yet to be undertaken, the imperative of making immediate progress in the case, and the interests of justice for all parties to the proceedings, pending final determination of any appeal.”
[16]In that case, the claimants had undertaken not to treat any steps taken by Vale pursuant to the court’s order as amounting to a submission to the jurisdiction, and had undertaken to indemnify Vale against any reasonable and proportionate costs incurred in complying with the court’s directions should its jurisdictional appeal succeed. Accepting those undertakings, O’Farrell J rejected Vale’s application to stay the proceedings pending the final determination of its appeal and made an order for it to serve its defence, and for disclosure and the exchange of evidence.[17]There can be no doubt as to the court’s jurisdiction to make directions for the progression of proceedings pending a jurisdiction appeal. Indeed, that will be the default position unless the defendant obtains an extension of time for the filing of a further acknowledgment of service and defence. However, the appropriateness of such an order will depend on the circumstances of each case.

The parties’ submissions

[18]Sucden asks the court to refuse Mr Gupta’s application for an extension of time to file a further acknowledgement of service and his defence, and offers an undertaking that it will not argue that the filing and service of the acknowledgment of service and defence constitute a submission to the jurisdiction in the event that Mr Gupta obtains permission to appeal and succeeds in that appeal before the Supreme Court.[19]Sucden had advanced a similar argument before the Judge.[20]Mr Gupta submits that he should not be deprived of the usual opportunity to decide, following final resolution of his jurisdictional objections, whether to submit to the jurisdiction of the English court, without prejudicing his position in relation to enforcement in the meantime. Mr Trotter relies in this regard on the fact that CPR 11 is intended to give a defendant whose jurisdiction challenge fails a further 14 days to decide whether to defend the claim or not. He refers to European Capital Trade Finance Ltd v Antenna Hungaria RT [1995] CLC 530, where Rix J stated: “[w]hen … a challenge to jurisdiction fails, if it does, the defendant has another 14 days to decide whether it wishes to submit to the jurisdiction by lodging a further acknowledgment of service. At that point, the defendant may prefer … to allow the action to proceed against it by default on the basis that … a default judgment rendered against it in England cannot be enforced against it in its home jurisdiction”.[21]Mr Gupta also expressed concerns as to the terms of the undertaking offered by Sucden, and the fact that no indemnity as to costs incurred has been offered.

Ruling

[22]In this case, there are a number of reasons why in my view it is highly desirable that these proceedings are not, in Blair J’s words, put into stasis pending the final determination of any application by Mr Gupta to challenge this court’s decision before the Supreme Court: i) The jurisdiction challenge has failed both at first instance and on appeal. ii) We have found that there are two, independent, grounds on which the court has jurisdiction. Mr Gupta would need to succeed in relation to both grounds to establish that the courts of England and Wales lacked jurisdiction. iii) The proceedings arise from events which took place over 4 years ago, and involve allegations of dishonesty. iv) The proceedings were commenced three years ago, but have yet to progress beyond the stage of the jurisdictional challenge so far as Mr Gupta is concerned. That has been the consequence of Mr Gupta’s refusal to authorise the solicitors acting on his instructions for TMT to accept service of the claim against him, the time taken to effect service, and the need to resolve the jurisdiction challenge at first instance and in this court.[23]However, any order for directions made by the court must ensure that Mr Gupta’s proposed appeal should not be rendered nugatory by a submission to jurisdiction, and that he retains the right, after the final determination of the jurisdiction challenge and in the event that it fails, to decide not to defend the proceedings.[24]On that basis, and given the terms of CPR 11(8), I am satisfied that it is appropriate to extend the time for filing a second acknowledgement of service pursuant to CPR 11(7)(b) to 14 days after the later of the following events: i) the expiry of time for an application for permission to appeal pursuant to CPR 52.3B(b); ii) if an application for permission to appeal is made pursuant to CPR 52.3B and dismissed, the expiry of time for an application for permission to appeal pursuant to r.13(1) of the Supreme Court Rules 2024; iii) if an application for permission to appeal is made pursuant to rr.12-13 of the Supreme Court Rules 2024 and dismissed, the date on which that application is dismissed; iv) if permission to appeal is granted, the date on which the appeal is finally resolved.[25]Subject to the matters considered in the following paragraphs, I can see no reason why an order should not be made at this stage requiring Mr Gupta to serve his defence to the claim, nor why it would not be appropriate to make further directions, on the basis that no steps taken by Mr Gupta pursuant to those directions would constitute a submission to the jurisdiction. There is no provision equivalent to CPR 11(8) which would apply in this context. I agree with the views expressed in Conversant and Municipio that directions of this kind can be made without creating a risk that a defendant’s compliance with them will amount to a submission to the jurisdiction. Further, Mr Gupta will retain his right not to file a second acknowledgement of service if any appeal fails, leaving Sucden to pursue the proceedings on an undefended basis.[26]I would order that Mr Gupta’s defence be served within 28 days of the sealing of the Court of Appeal’s order dismissing the appeal, which effectively maintains the timetable set by the Judge, but without prejudice to Mr Gupta’s right to apply to the Commercial Court for an extension of time. If any application for permission to appeal to the Supreme Court is outstanding when statements of case close, the issue of further directions will be a matter for the Commercial Court.[27]To ensure that Mr Gupta’s position is properly protected while any attempt to appeal to the Supreme Court is pending, it would be necessary for Sucden to offer undertakings to the court as follows: i) not to treat any steps taken by Mr Gupta pursuant to the directions of the court in the period prior to the date of filing of any further acknowledgement of service by Mr Gupta, including any application by Mr Gupta for an extension of time within which to comply with such directions, as a submission to the jurisdiction of the court (whether for the purposes of these proceedings or for the purpose of enforcement of any judgment obtained in these proceedings); ii) to indemnify Mr Gupta against any costs reasonably and proportionately incurred in complying with the court’s directions in the period prior to the date of filing of any further acknowledgement of service by Mr Gupta in the event that Mr Gupta’s jurisdiction challenge succeeds before the Supreme Court, and not to treat any steps taken by Mr Gupta to enforce this indemnity as a submission to the jurisdiction of the court (whether for the purposes of these proceedings or for the purpose of enforcement of any judgment obtained in these proceedings).[28]If Sucden is willing to offer undertakings to the court in those terms, then I would refuse Mr Gupta’s application for an extension of time for service of his defence until 14 days after any further acknowledgement of service is filed. If Sucden is unwilling to offer undertakings in those terms, then time for the service of Mr Gupta’s defence will be extended to 14 days after the filing by Mr Gupta of any further acknowledgement of service.[29]I agree.

Sir Geoffrey Vos, Master of the Rolls

[30]I also agree.

order

i) He stated that it was “entirely reasonable for the party challenging jurisdiction to insist on the inclusion of a term in the order to the effect that the steps in question are not to be taken as a submission to the jurisdiction, together with an undertaking by the claimants not to take any such point” ([23]). ii) The order would specify that the respondent/claimant should indemnify the appellant/respondent against any costs incurred in complying with the directions if the jurisdiction appeal were to succeed, it being appropriate for those costs to be assessed on an indemnity basis in that eventuality ([24]). iii) In that case, where there were pending proceedings by Novo Banco against Goldman Sachs in Portugal, Blair J ordered that the documents served should be identified as “drafts” to avoid any misunderstanding as to their status ([28]).