Once proceedings have been filed, and unless it is possible to settle a case or obtain early determination, a claimant’s overriding desire is often to get to trial, prove its case and recover what is owed. Conversely, the strategy for many defendants can be to delay and obfuscate, causing the claimant to incur as much time, cost and pain as possible in the hope that the claimant ultimately relents and foregoes its case or settles for a lower sum than it might otherwise recover.
If not before proceedings have commenced, these dividing lines are usually drawn soon after. Claimants can face having to prove that the courts have jurisdiction to entertain the claim and that the claim is sufficiently arguable to be allowed to proceed.
Unsurprisingly, given that the Commercial Court report in March 2026 identified that its caseload remains predominantly international – roughly 75% of cases involving parties or subject matter outside the UK – these types of challenges are particularly acute in international cases. What are some of the tricks of the trade that savvy defendants use?
1. Cost – the most obvious tactic employed by defendants is to seek to turn this battle before the war of trial into a war itself. Instead of adopting a focused and measured approach, the unruly defendant throws the kitchen sink at the claimant, adopting an aggressive approach instead of one that is proportionate and reasonable, and not yielding on any point of contention.
2. Security for costs – as well as needing to pay for its own costs, where the relief is available, a defendant will seek that the claimant provide security for the defendant’s costs as well. This often compounds the costs pressure on a claimant, who is required to raise funds for (at least) two sets of costs.
3. Multiple legal teams – instead of defendants being jointly represented, they will often instruct separate lawyers. This means that a claimant will face multiples of both correspondence and applications, and (potentially) multiples of security for costs and adverse costs risk.
4. Mini-trials – despite judicial authority being clear that these challenges should not turn into mini-trials, claimants are bombarded with swathes of factual and expert evidence to which to respond. Claimants will often have little option but to engage with the points raised to avoid any risk that any of them succeed.
5. Strike out/summary judgment – jurisdiction challenges are sometimes coupled with attempts to strike out a claim or for reverse summary judgment.
6. Full and frank disclosure – instead of raising a focused set of material allegations of breach of the duty of full and frank disclosure, defendants will go to town in asserting that the claimant has failed to comply with its obligations. Again, a claimant looking to protect its order – and its reputation – has little choice but to engage.
7. Service – the validity of service itself is another point of attack for an unruly defendant. Despite being on notice of the proceedings and being able to muster heavy challenges, defendants sometimes nevertheless claim that they were not properly served and that due process has not been followed. This regularly turns into a series of ancillary battles itself, resulting in numerous applications as claimants seek to protect themselves from any risk that their claim will fall by the wayside.
8. Gateways – related to service, where a claimant requires permission to serve out of the jurisdiction, a defendant may argue that there is no available gateway.
9. Forum non conveniens – where cases have an international dimension, it is very simple for a defendant to seek to establish forms of connection with other jurisdictions. The purpose is to persuade the court that the case should properly be held in another jurisdiction.
10. Jurisdiction – in an appropriate case, a defendant may argue that the court does not have the power to hear a claim on the basis of a construction of the relevant rules or law.
11. Appeals – even where the claimant successfully resists a challenge, that is not necessarily the end of the chapter. Defendants will seek permission to appeal, arguing that in the meantime any costs orders in favour of the claimant should be stayed and that any security for costs should not be released pending the outcome. This can mean more time, delay and cost for a claimant.
Faced with such a vast toolkit, how best does a claimant respond?
That will often depend on the claimant’s character and their available resources. The key is to hold your nerve. The most effective claimants play the long game, understanding exactly what the defendant is trying to achieve and that the defendant will often blow itself out or set itself up for a fall.
If, contrary to the unruly defendant, the claimant conducts itself reasonably, proportionately and pragmatically, and seeks to avoid being drawn into the defendant’s game, then this will hopefully curry favour with the court and result in high costs consequences for the defendant should the challenge fail.
Ideally, such a rap across the knuckles can encourage settlement or else deter a defendant from adopting a similar strategy when the substantive case commences. However, for the unruly defendant, any defeat and resulting costs are just viewed as a price to pay and a battle in the overall war, such that they may continue in the same vein as the substantive case proceeds.
Jon Felce is a partner at Cooke, Young & Keidan, London
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