## Facts

- Somportex Ltd., an English company, negotiated with Philadelphia Chewing Gum Corp., a Pennsylvania manufacturer, for Somportex to distribute “Tarzan” chewing gum in England.
- Somportex alleged a binding contract was concluded by telephone on December 17, 1966, and that it was governed by English law; Philadelphia maintained negotiations never ripened into a contract.
- Relying on the negotiations, Somportex opened an irrevocable letter of credit exceeding US$100,000 in favor of Philadelphia or its agents.
- In early 1967, Philadelphia withdrew from the negotiations; Somportex treated the withdrawal as a breach and sued in England for damages for breach of an agreement allegedly made on or about December 17, 1966.
- Somportex obtained leave to serve the writ out of the jurisdiction based on assertions that the contract was made in England or was governed by English law.
- Philadelphia entered a conditional appearance in England and applied to set aside the writ/service for lack of jurisdiction, arguing no contract existed and, alternatively, that any agreement was neither made in England nor governed by English law.
- A Master dismissed Philadelphia’s application to set aside, but ordered the dismissal not drawn up for seven days and permitted Philadelphia to withdraw its appearance within that same period.
- Philadelphia withdrew its appearance within the seven days; Somportex appealed, contending the conditional appearance became unconditional upon dismissal of the jurisdiction challenge.

## Issues

1. Whether entering a conditional appearance and unsuccessfully moving to set aside service/writ constitutes submission to the court’s jurisdiction.
2. Whether a defendant may withdraw an appearance after losing its jurisdiction challenge, and whether such withdrawal negates submission.
3. How rules governing service out of the jurisdiction interact with the concept of “submission” by a foreign defendant.

## Decision

- The Court of Appeal allowed Somportex’s appeal.
- Upon dismissal of Philadelphia’s application to set aside service/writ, Philadelphia’s conditional appearance became unconditional as a matter of English practice.
- That conversion constituted submission to the English court’s jurisdiction.
- Philadelphia’s subsequent withdrawal of its appearance could not retrospectively undo the legal effect of the prior submission.

## Legal Principles

- A conditional appearance is provisional only until the jurisdiction challenge is determined.
- If a defendant’s application to set aside service or the writ is dismissed, the conditional appearance becomes an unconditional appearance, amounting to submission to jurisdiction.
- A later attempt to withdraw an appearance does not negate submission that has already occurred upon an adverse jurisdiction ruling.
- At the service-out stage, the court may proceed on affidavits and an arguable jurisdictional basis; the merits of contract formation are not finally determined on the application to set aside.

## Conclusion

The Court of Appeal held that a foreign defendant that appears conditionally and loses its motion to set aside service/writ has submitted to the court’s jurisdiction, and it cannot avoid that result by withdrawing its appearance after the adverse ruling.


Somportex Ltd. v. Philadelphia Chewing Gum Corp., [1968] 3 All E.R. 26 (C.A.)