McGILL LAW JOURNAL
[Vol. 23
A Casenote on Henry v. Geoprosco International
In refuting the judgment of Denning L.J. in In re Dulles’ Settle-
ment (No.2),’ the English Court of Appeal in Henry v. Geoprosco
Internationa dealt a fatal blow to a line of jurisprudence widely
followed in the Commonwealth. The occasion for this attack on the
possibility of reserved appearance to protest jurisdiction before a
foreign court arose in Canada.
On the 27th of May 1970, the plaintiff-appellant entered into an
agreement, in writing, with the defendant-respondents in Calgary,
Alberta. The defendants were a limited liability company, registered
in Jersey in the Channel Islands, with their head office in London,
England. Under the written agreement, the defendants had agreed to
employ the plaintiff as a member of an oil well work-over party in
the Trucial States. Clause 13(b) of the agreement was an arbitration
clause, and by Clause 14 the parties subjected the agreement to
English law. A few days after the agreement was signed, the plaintiff
assumed his duties in the Trucial States, but on September 22nd
1970 the defendants summarily dismissed him indicating that they
had reasons to justify their actions. As a result of this dismissal, the
plaintiff instituted an action in the Alberta Supreme Court claiming
a sum of $42,502.22 by way of damages for wrongful dismissal. The
plaintiff contended that the Alberta Court had jurisdiction on the
grounds that the contract was in fact made in Calgary. Accordingly,
Alberta was claimed to be the loci contractus.
The defendants were advised in England to retain counsel in
Alberta for the limited purpose of contesting the claim of jurisdiction
made by the plaintiff before the Supreme Court of Alberta. Both
the Trial and the Appellate Divisions held against the defendants
on the question of jurisdiction; at both levels, the Court decided in
favour of the claim of jurisdiction, on the ground that Alberta was
the loci contractus.
The Supreme Court of Alberta then proceeded to hear the case
on its merits, and as the defendants took no part in these proceedings,
awarded $41,879 in damages by default.
1[1951] Ch.842, [19513 2 All E.R. 69.
2 [1976] 1 Q.B. 726. See Collier (1975) 34 Camb.L.J. 219 and Solomons (1976)
25 Int. & Comp.L.Q. 665.
19771
COMMENTS – COMMENTAIRES
In order to have the Alberta judgment enforced, the plaintiff
went before the Queen’s Bench Division in England 3 In these pro-
ceedings the defendants raised the only defence open to them, namely,
that they had not voluntarily submitted to the jurisdiction of the
Alberta courts. Relying on Cheshire,4 Dicey5 and Denning L.J. (as he
then was) in In re Dulles’ Settlement (No.2),0 the defendants argued
that an appearance before a court to protest jurisdiction did not in
any way amount to a submission to jurisdiction. Adopting this argu-
ment, Willis J. at first instance gave judgment for the defendants:
The real issue between the parties on the merits was whether the de-
fendants had committed a breach of contract and wrongfully dismissed
the plaintiff in circumstances which entitled him to damages, or whether
it was the plaintiff who was in breach of contract in circumstances which
justified the defendants in dismissing him. This issue was never before
the Albertan Court in document or argument. The defendants’ case on
the merits went by default, and it is not, I think, in any way to be
assumed that by taking no further part in the proceedings after failing
to secure a stay they were conceding the case on the merits. They
clearly wanted to contest the claim not in the Albertan Court but by arbi-
tration, and were urging the Alberta Court not to assume jurisdiction.
What happened seems to me to be within the words of Lord Justice Den-
ning, in the well-known passage in Re Dulles’:
“I cannot see how anyone can fairly say that a man has voluntarily sub-
mitted to the jurisdiction of a court when he has all the time been
vigorously protesting that it has no jurisdiction. If he does nothing
and lets judgment go against him in default of appearance he clearly does
not submit to the jurisdiction. What difference in principle does it make
if he does not merely do nothing but actually goes to the court and
protests that it has no jurisdiction? I can see no distinction at all. I quite,
agree, of course, that if he fights the case not only on the jurisdiction
but also on the merits he must then be taken to have submitted to the
jurisdiction, because he is then inviting the court to decide in his favour
on the merits, and he cannot be allowed at one and the same time to
say that he will accept the decision on the merits if it is favourable to
him and will not submit to it if it is unfavourable. But when he only
appears with the sole object of protesting against the jurisdiction, I do
not think that he can be said to submit to the jurisdiction. … ” Their sole
object, to my mind, was to protest against the jurisdiction, and, by taking
them, the defendants did not voluntarily submit to the jurisdiction of the
Albertan Courts.1
3 [1974[ 2 Lloyd’s Rep. 536.
4Private International Law 9th ed. (1974), 638-39.
5 Conflict of Laws 9th ed. (1973), Rule 180 and pp.996-97.
0 Supra, note 1.
7 Supra, note 3, 539.
1
120
McGILL LAW JOURNAL
[Vol. 23
In a unanimous decision of the Court of Appeal, the plaintiff’s appeal
was allowed.” This decision fundamentally altered that part of
private international law governing the question of jurisdiction in
proceedings before a foreign court and it is this which makes Henry
v. Geoprosco worthy of comment.
Both academics and the courts agree that despite the strong view
to the contrary of Buckley L.J. in Harris v. Taylor,9 a person does
not voluntarily submit to the jurisdiction of a foreign court when his
appearance before it is for the limited purpose of protesting juris-
diction. As Professor Cheshire wrote in 1935:
On principle it would seem that appearance limited to a protest against
the foreign jurisdiction cannot properly be said to constitute submission.10
Professor Cheshire maintained, that as a matter of judicial policy,
Harris v. Taylor was wrong in denying the defendant- the right to
protest the jurisdiction of the court without involving himself in li-
tigation on the merits.” He also attempted to undermine the author-
ity of Harris v. Taylor:
It is submitted, though without conviction, that there was one fact
in the proceedings which prevents Harris v. Taylor from being regarded as
a decisive authority for the crude proposition that every form of protest
against jurisdiction is sufficient to render the defendant amenable to the
Court. This was that the defendant did more than protest the jurisdiction,
for he expressly pleaded that there was no cause of action against him
according to Manx law. This would appear to be an attack on the merits
of the plaintiff’s claim, and therefore in itself a sufficiently strong reason
for preventing a denial of submission.12
In subsequent editions, both Cheshire and his editors have maintain-
ed this stance. In the current edition North,’ 3 having first referred
to Harris v. Taylor as a “troublesome case”,’4 proceeded to state
the rule in the following way:
Despite this decision [Harris v. Taylor], however, it can be said with
some asurance that to protest is not necessarily to submit.’5
Rule 180 of the current edition of Dicey’s Conflict of Laws has
remained unchanged throughout nine editions:
Subject to the Exceptions hereinafter mentioned, a court of a foreign
country has jurisdiction to give a judgment in personam capable of
enforcement or recognition in England in the following Cases:
8 The unanimous decision of the Court, comprised of Lord Justices Cairns,
Roskill and Browne, was written by Roskill L.J.
9 [1915] 2 K.B. 580, 587-88 per Buckley LJ.
‘oPrivate International Law 1st ed. (1935), 494.
“Ibid., 495-96.
12 Ibid., 496 (italics added).
13 P.M. North, fellow of Kebel College, Oxford.
14 Cheshire’s, Private International Law 9th ed. (1974), 638.
15 Ibid.
1977]
COMMENTS — COMMENTAIRES
If the judgment debtor, being a defendant in the original
First Case –
court, submitted to the jurisdiction of that court by voluntarily appearing
in the proceedings otherwise than for the purpose of protecting, or
obtaining the release of, property seized, or theatened with seizure, in
the proceedings or of contesting the jurisdiction of that court.10
Thus, until 1951, both Cheshire and Dicey relied on a combination
of slender judicial authority17 and their own academic standing to
meet and ‘refute the view expressed by Buckley LJ. in Harris v.
Taylor. The judgment of Denning L.J. in In re Dulles’ Settlement
(No.2) was, therefore, of the greatest significance to the distinguished
authors. The dispute in that case concerned the wardship of an
infant 8 and as a part of the proceedings, the mother sought an
order for the infant’s maintenance. The infant’s father, an American
citizen resident outside the jurisdiction of the English Court, in-
structed counsel to appear for the limited purpose of opposing the
mother’s application under the Guardianship of Infants’ Act, 1925.11
The father lost his claim to be appointed the infant’s guardian and
the child was awarded to the mother. The Court proceeded to hear
her claim for the infant’s maintenance but the father took no further
part in the proceedings. At the conclusion of the hearing, Romer J.
refused to make an order for maintenance on the grounds that the
father had not submitted to the jurisdiction of the Court with re-
ference to the claim for maintenance. The mother appealed to the
Divisional Court 9 of the Queen’s Bench on behalf of the infant and
the appeal was heard by two judges, Sir Raymond Evershed M.R.
and Denning L.J. It was in the course of affirming the decision of
Romer J., and dismissing the appeal that Denning L.J. wrote the
passage which later came to be considered as the cornerstone of
jurisdiction in private international law.
I cannot see how anyone can fairly say, that a man has voluntarily sub-
mitted to the jurisdiction of a court, when he has all the time been vigor-
ously protesting that it has no jurisdiction. If he does nothing and lets
judgment go against him in default of appearance, he clearly does not
submit to the jurisdiction. What difference in principle does it make,
if he does not merely do nothing, but actually goes to the court and
protests that it has no jurisdiction? I can see no distinction at all.20
10 Conflict of Laws 9th ed. (1973), 993 (italics added).
1 Tallack v. Tallack Broekema [1927] P.211, 222 per Lord Merrivale.
18 The facts are found in the earlier proceedings concerning this dispute
reported as In re Dulles Settlement. Dulles v. Vidler [1951] 1 Ch.265. Roskill
L.J. gives a summary of the facts in his judgment, supra, note 2, 742-43.
a 15-16 Geo.V, c.45.
19 The authority of a decision of the Court of Appeal, a branch of the Queen’s
Bench, is higher than a decision of the Divisional Court of the Queen’s Bench.
Two judges preside in the latter; three preside in the former.
20 Supra, note 1, 850.
McGILL LAW JOURNAL
[Vol. 23
Denning L.J. distinguished Harris v. Taylor which he found to be an
authority on res judicata and not on jurisdiction,2 ‘ so strengthening
the position taken by Cheshire and Dicey. The Canadian authors
adopted this line of authority; 22 Williston and Rolls agreed that In re
Dulles’ Settlement (No.2) expressed “the more sensible view”. 23 It
is this monumental edifice of authority which the Court of Appeal
in England brought tumbling down like a house of cards in Henry
v. Geoprosco.24 The view expressed by Denning L.J. in In re Dulles’
Settlement (No.2) was totally rejected. In their unreserved accept-
ance25 of Buckley L.J.’s reasoning in Harris v. Taylor the Court of
Appeal tersely refuted the authority of both Cheshire and Dicey:
We need hardly say that we have considered with the utmost care and
respect the views expressed by the editors of Dicey’s Conflict of Laws in
successive editions of that work, by way of criticism of Harris v. Taylor,
culminating in the views expressed in the 9th ed. (1973) to which we have
already referred, as well as the views of Professor Cheshire in various
editions of Cheshire’s Private International Law. But however distinguished
the authors and editors of these textbooks the law must be taken to
be as laid down by the courts, however much their decisions may be
criticized by writers of such great distinction. 2
The Court of Appeal found that for almost 150 years,2 7 beginning
with Buchanan v. Rucker28 in 1808, the law was as set forth by
Buckley L.J. in the following passage from Harris v. Taylor:
When the defendant was served with the process he had the alternative
of doing nothing. He was not subject to the jurisdiction of the Court,
and if he had done nothing, although the Court might have given judgment
against him, the judgment could not have been enforced against him
unless he had some property within the jurisdiction of the Court. But
the defendant was not content to do nothing; he did something which
he was not obliged to do, but which, I take it, he thought it was in his
interest to do. He went to the Court, and contended that the Court had no
jurisdiction over him. The Court, however, decided against this contention
and held that the defendant was amenable to its jurisdiction. In my
opinion there was a voluntary appearance by the defendant in the Isle of
Man Court and a submission by him to the jurisdiction of that Court.
If the decision of the Court on that occasion had been in his favour he
would have taken advantage of it; as the decision was against him, he
was bound by it and it became his duty to appear in the action and as
21 Ibid., 851.
22See Castel, Canadian Conflict of Laws (1975), 224 and the Ontario Rules
of Practice, R.R.O. 1970, Reg.545.
23The Law of Civil Procedure (1970), vol.1, 21-22.
24 Supra, note 2, 74246.
25 Ibid., 746.
26 Ibid.
27Ibid., 73942.
28 (1808) 9 East 192.
1977]
COMMENTS – COMMENTAIRES
he chose not to appear and to defend the action he must abide by the
consequences which follow from his not having done so. 29
Having thus established the respectability and the antiquity of the
rule,30 the Court of Appeal “with the most profound respect”‘,- for
Denning, proceeded to refute his view32 in In re Dulles’ Settlement
(No. 2). Of the several reasons which the Court advanced33 to support
their overruling Denning, there were three which could be con-
sidered basic. First, the Court thought that Denning had misunder-
stood the facts of Harris v. Taylor in concluding that it was not an
authority for jurisdiction but for res judicata. (As previously in-
dicated, it was on this ground that Denning L.J. distinguished Harris
v. Taylor from the Dulles case.) Secondly, it was implicit that the
Court thought that the portion of Denning’s judgment in which
he distinguished Harris v. Taylor was, in any event, obiter, thus not
warranting the attention it had received from the academics and
from the Bench. Thirdly, the Court noted that In re Dulles’ Settle-
ment (No. 2) was a decision of the Divisional Court of the Queen’s
Bench presided over by two judges; such a judgment is of no
authority when it conflicts with a previous decision of the Court of
Appeal. In any event, the Court of Appeal possessed the power to
overrule In re Dulles’ Settlement (No. 2) and this the Court did
without hesitation.
Having thus re-established the rule espoused by Buckley L.J.,34
RoskillL.J., for the Court, formulated the law on submission to a
foreign jurisdiction as follows:
Taking this view of the decided cases which bind this court, it seems to
(1) The
us that they justify at least the following three propositions:
English courts will not enforce the judgment of a foreign court against
a defendant who does not reside within the jurisdiction of that court, has
no assets within that jurisdiction and does not appear before that court,
even though that court by its own local law has jurisdiction over him. (2)
English courts will not enforce the judgment of a foreign court against
a defendant who, although he does not reside within the jurisdiction of
that court, has assets within that jurisdiction and appears before that
court solely to preserve those assets which have been seized by that court.
(3) The English courts will enforce the judgment of a foreign court against
a defendant over whom that court has jurisdiction by its own local law
(even though it does not possess such jurisdiction according to the English
rules of conflict of laws) if that defendant voluntarily appears before
29 Supra, note 9, 587-88.
so Ibid.
31 Supra, note 2, 745.
32Supra, note 1, 850.
33Supra, note 2, 744-45.
3 Supra, note 9, 587-88.
McGILL LAW JOURNAL
(Vol. 23
that foreign court to invite that court in its discretion not to exercise the
jurisdiction which it has under its own local law.3 5
This decision, in refuting the views of Cheshire and Dicey
naturally affects Canada and other Commonwealth countries where
the courts closely follow these authorities in deciding issues of
private international law. In the past, the courts have held that a
person may protest the jurisdiction of a foreign court without
thereby submitting to its jurisdiction. Henceforth, this issue will
have to be resolved differently since the defendant may be con-
sidered to have submitted to the foreign court’s jurisdiction. As a
result of Henry v. Geoprosco International, subsequent decisions in
Commonwealth courts in this area of law will, in all likelihood,
undergo a radical change and the standard works on private in-
ternational law will require rewriting. Until the House of Lords re-
examines the authorities, courts and academics alike must take
6 for “the law
cognizance of the three rules laid down by Roskill L.
must be taken to be as laid down by the courts, however much their
decisions may be criticized by writers of … great distinction” 7
M.L. Marasinghe*
3 5 Supra, note 2, 74647.
36 Ibid.
37t Ibid., 746.
* Research-Fellow, Max-Planck-Institut for Private International Law, Ham-
burg, and Professor of Law, University of Windsor.
