Special Briefing: Continuing Developments in Jurisdiction under Common Law Rules

There have been a number of recent developments in relation to jurisdiction in cases to which Regulation (EU) No. 1215/2012 (‘recast Brussels’) applies; but as 31^st December 2020 recedes into memory, and with it the mechanistic approach to jurisdiction adopted under recast Brussels, those cases which deal with English common law principles, as expressed in the CPR, will assume greater importance, at least unless and until the UK accedes to the Lugano Convention. Sarah Prager and Henk Soede of 1CL acted for the Part 20 Claimant in a recent case which explores many of the issues raised in these ‘rest of the world’ claims

Introduction

In On The Beach Limited v Meeting Point Youtravel Tourism LLC, 20^th January 2021, the High Court was asked to analyse a number of the service provisions under the CPR, as well as their underlying principles. For practitioners involved in cross-border claims, the judgment provides a useful illustration of the “place of business” analysis under CPR 6.3(1)(c) and 6.9 and also of a scenario where the court exercised its discretion under CPR 6.15 and 6.36/37.

Factual background

The litigation underlying this decision relates to a catastrophic injury suffered by a child while on holiday in Spain in the summer of 2015. The holiday was booked through On The Beach Limited (“OTB”). Proceedings were issued on behalf of the child on 10^th April 2019 against OTB and four Spanish companies. Liability is denied and these proceedings are ongoing.

On 28^th November 2019 OTB brought an additional claim against Meeting Point Youtravel Tourism LLC (“Meeting Point”), a company incorporated under the laws of the UAE and registered and domiciled in Dubai. The basis of the additional claim is that Meeting Point supplied overseas holiday accommodation to OTB and had entered into a Deed of Indemnity (the “Deed of Indemnity”) whereby it agreed to indemnify OTB against claims relating to holiday accommodation. Although OTB deny liability in the underlying claim, it is alleged that this Deed of Indemnity would cover any such liability in any event. OTB took advice regarding the difficulties involved in serving proceedings in Dubai, and on 4^th December 2019 proceedings were personally served at an address at 55 The Strand London, which is the registered address of Youtravel.com Limited (“Youtravel”). It was considered that Youtravel was a place of business of Meeting Point, and that the requirements for service under CPR 6.3(1)(c) and CPR 6.9 had therefore been met. Meeting Point filed an acknowledgement of service in which it indicated its intention to contest jurisdiction.

By an application dated 20^th December 2019, Meeting Point sought a declaration that the court does not have jurisdiction to hear the Part 20 claim, alternatively that it should decline jurisdiction, and that service of the Part 20 proceedings was invalid. OTB made a cross-application by which – if Meeting Point were successful in its application – it sought:

• Permission to serve Youtravel as Meeting Point’s agent pursuant to CPR 6.12;
• Permission to serve at an alternative address, namely Youtravel’s address, pursuant to CPR 6.15;
• Permission to dispense with service pursuant to CPR 6.16; or
• Permission to serve out of the jurisdiction pursuant to CPR 6.36 and 6.37.

Meeting Point’s application

The majority of the evidence and oral argument in this case related to the question of whether Youtravel was a “place” where Meeting Point carried on its activities or a place of business of Meeting Point, as required for service under CPR 6.9. Bourne J was directed, first, to Adams & Others v Cape Industries Plc and Another [1990] 1 Ch 433 and Slade LJ’s authoritative guidance on when a company incorporated in one country is “present” in another (see 530ff). Though it is impracticable to summarise that guidance here, the relevant factors include (but are not limited to):

• Whether the fixed place of business from which the UK domiciled business operates was originally acquired for the purpose of enabling it to act on behalf of the foreign company;
• The extent to which the foreign company directly reimburses the UK domiciled business for the cost of accommodation at the fixed place of business and the cost of staff;
• The degree of control exercised by the foreign company over the UK domiciled business;
• The extent to which the UK domiciled business has authority to enter into contracts on behalf of the foreign company without submitting them for approval;
• The extent to which the UK domiciled business transacts as principal exclusively on its own behalf; and
• The extent to which the businesses share brand names or trademarks.

Bourne J also considered the decision in Noble Caledonia Ltd v Air Nuigini Ltd [2017] EWHC 1095 (QB), which is in many respects a similar case. In Noble Caledonia, Gilbart J identified the critical issue as “whether [the agent] has been a representative of [the principal], carrying on its [the principal’s] business for more than a minimal period, from [the agent’s] offices, or have the activities of [the agent] been those of its own business”: [34].  Bourne J approached the analysis with this issue in mind.

Witness evidence relating to the relationship between Youtravel and Meeting Point was obtained from senior directors of both companies, their mutual parent company and OTB. In terms of the guiding factors in Adams, the central points were as follows:

• Counsel for Meeting Point highlighted that Youtravel is not a subsidiary of Meeting Point and that they are instead distinct entities within the same corporate group ([16]). Although Meeting Point’s sales and marketing, customer services support and invoice processing were outsourced from Youtravel, Meeting Point’s senior management noted that they did not exercise control over Youtravel’s staff ([17]). Youtravel charges Meeting Points for its services and does not contribute to the financing of Youtravel’s business ([24]).
• OTB emphasized that when Meeting Point was incorporated, the commercial decision makers moved to Dubai but the operations team and day-to-day office staff remained in London, so that in effect the London office is both a sales arm and operation arm of Meeting Point ([28]). Prior to this, Youtravel was the entity which previously carried on the activities taken over by Meeting Point when the latter was created ([26]). OTB submitted that this close relationship indicated that, in reality, Youtravel’s offices are a place of business of Meeting Point ([26]).
• The premises at 55 Strand were acquired by Youtravel for Youtravel’s use and are not paid for by Meeting Point. The office is occupied by staff of Youtravel and not by any staff of Meeting Point ([23]).
• Meeting Point noted that Youtravel is free to contract with parties other than Meeting Point ([25]). However, there was no evidence that Youtravel had transacted with any client other than Meeting Point ([30]). In effect, Youtravel’s sole client appeared to be Meeting Point. Accordingly, it was submitted that Youtravel was a “mere puppet” of Meeting Point ([30]).
• It was noted that Youtravel had only limited authority to contract on behalf of Meeting Point ([22]). The same was relied on by OTB to evidence the fact that this was not the scenario described in Adams where the UK agent “never makes contracts in the name of the overseas corporation” ([31]). On the contrary, Youtravel could and did enter into contracts on Meeting Point’s behalf.
• In terms of the promotional material, Meeting Point uses the brand “Youtravel” or “Youtravel.com”, the latter being a trademark which it owns ([27]). It was further noted that Meeting Point’s trading literature referred to “Youtravel Dubai” and “Youtravel London” and notes the Youtravel website gives postal addresses in both places ([27]).

Bourne J accepted that ‘from branding and online promotion and the generally close connection between the two companies, an outside observer could readily conclude that “Youtravel.com” is a business which trades in both Dubai and London’ [37], but taking everything together, he found that Youtravel was not a place of business of Meeting Point and that service of the claim form had not been effected under CPR 6.3(1)(c) and 6(9). On the face of the judgment, the determinative factors were that Meeting Point and Youtravel had two separate corporate identities; the two companies have separate finances and different employees; and the premises at 55 Strand are occupied and paid for by Youtravel, not Meeting Point ([39]-[40]).

OTB’s application for permission under CPR 6.12

Under CPR 6.12, the court may, on application, permit a claim form relating to a contract to be served on the defendant’s agent where a) the defendant is out of the jurisdiction; b) the contract to which the claim relates was entered into within the jurisdiction with or through the defendant’s agent; and c) at the time of the application either the agent’s authority has not been terminated or the agent is still in business relations with the defendant.

Meeting Point did not dispute that these threshold conditions were satisfied. However, CPR 6.12(2)(c)(iii) implicitly required an applicant under this rule to show that “service out of the jurisdiction cannot be effected” ([44]). Bourne J construed that as meaning “a real impediment to service, going beyond mere inconvenience” ([44]). Although the court was taken to the findings of an advice which set out the difficulties of serving legal proceedings in Dubai, it was held that this advice did not evidence that “service out of the jurisdiction cannot be effected” ([47]).

Notably, Bourne J considered that if he retained a discretion to make an order permitting service in a scenario where the requirement at CPR 6.12(2)(c)(iii) had not been proven, then he would have made such an order ([48]). This was because the threshold conditions had been satisfied; Meeting Point were fully aware of the underlying proceedings; and the prospect of causing further delay to the underlying proceedings was undesirable ([48]).

OTB’s application for permission to serve under CPR 6.12 was thus rejected.

OTB’s application under CPR 6.36 and 6.37

Under CPR 6.36, a claim can be served out of the jurisdiction with the permission of the Court if any of the grounds set out in para 3.1 of PD6B apply. Para 3.1(4) was satisfied, as the claim was an additional claim under Part 20 and Meeting Point were a necessary or property party to this claim, and so was para 3.1(6)(c), as the Part 20 claim was based on a Deed of Indemnity which contained an English law clause ([53]-[54]).

CPR 6.37 required OTB to show, in addition, that England and Wales is the proper place in which to bring the claim. Bourne J found for OTB on this point on the basis that the underlying litigation (in which OTB was a defendant) was being pursued in England and the Deed of Indemnity contained an English law clause ([57]). This conclusion was arrived at on the dual assumption that a) the exclusive jurisdiction clause in the main was contract was not applicable and b) the relevant contracts between the parties were not concluded in London. If either of those assumptions were untrue, the case in favour of England and Wales being the forum conveniens would be strengthened ([57]).

Counsel for Meeting Point took the further point that a claimant may only issue a claim form against a foreign defendant, without having first obtained permission for service out, provided that, if the case is not one where service may be effected without permission, the claim form is endorsed by the court “not for service out of the jurisdiction” (per para 5.4.3 of the Queen’s Bench Guide) ([60]-[62]). It was submitted that the claim form served was not endorsed in this way and that it was therefore defective. Bourne J held this did not affect the validity of the Part 20 claim form – it was highly unlikely para 5.4.3 was intended to have such an effect, as it was not replicated in any rule or practice direction ([63]). Further, since no attempt had been made to serve the additional claim outside the jurisdiction, the absence of the requisite endorsement had no practical effect ([63]).

OTB was therefore granted permission to serve the Part 20 claim outside of the jurisdiction, along with any necessary extension of time ([64]).

OTB’s application under CPR 6.15

Under CPR 6.15, the court may, where there is good reason to do so, make an order permitting service by an alternative method or at an alternative place. In reliance on this provision, OTB sought an order permitting service at Youtravel’s address. It was however common ground that CPR 6.15 cannot be used to circumvent the ordinary requirement to obtain permission to serve proceedings out of the jurisdiction. This meant that the application under CPR 6.15 must show, first, that service out of the jurisdiction would be permissible and, second, that service nevertheless should be permitted at an alternative place ([49]) (see, also, David Foxton QC (as he then was) at [17] in Marashen Ltd v Kenvett Ltd [2017] EWHC 1706 (Ch)).

The test under CPR 6.15 is whether there is “good reason” to make the order. In contrast with CPR 6.16, it is not a test of exceptionality: see Abela v Baadarani [2013] UKSC 44 per Lord Clarke at [33].  Drawing from the dicta in Abela at [36], Bourne J determined that “a critical factor” when deciding whether to exercise the discretion under CPR 6.15 was the defendant’s awareness of the content of the claim form. This factor was present ([68] and [70]). A further factor was the issue of delay in the underlying proceedings and that this would plainly be exacerbated in the event an order was not granted under CPR 6.15. In the event such an order was made, Bourne J was not told of any prejudice that would be caused to Meeting Point ([68]).  Although the instant case was distinct from Abela in the sense that it was possible to serve proceedings in Dubai via diplomatic channels (whereas in Abela service overseas by diplomatic channels was impractical), Bourne J found that the factors set out above were sufficient to meet the “good reason” test under CPR 6.15.

OTB was thus granted permission to serve outside the jurisdiction, as set out above, and permission to serve at an alternative address – namely, Youtravel’s address at 55 Strand.

OTB’s application under CPR 6.16

Bourne J held that there were not sufficient “exceptionally circumstances” to justify making the order, as there was at least one avenue by which service could still be effected (i.e., serving in Dubai) even if it had not already been effected.

Conclusion

The judgment in this case is a helpful reminder of the principles that apply to various service provisions under the CPR. Of particular note is the court’s lengthy analysis of the “place of business” requirement under CPR 6.9 and the decisions in Adams, Noble Caledonia and Abela.

It was a particular feature of the case that there was no issue but that the party to be served had been made aware of the proceedings well within the time for service, and had been able to instruct solicitors and take legal advice without delay. Its own terms and conditions specified the courts of England and Wales as the appropriate forum within which any claims against it should be brought, and it had not identified any other forum as being more appropriate, particularly in the light of the underlying claim being brought within the jurisdiction. The effect of acceding to its application would have been that proceedings would have to be re-issued and served outside the jurisdiction, at considerable cost, and with considerable delay not only to the Additional Claim but also to the underlying claim. Interpreting the law in such a way as to delay matters by well over a year, even assuming that a further jurisdictional challenge would not then be made, cannot, in the view of the authors, be correct. One need only consider the example of FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996, currently under consideration by the Supreme Court for the second time, to understand the potential for cost and delay arising out of these jurisdictional challenges. It is to be hoped that as the common law jurisdictional rules are applied to more and more claims a more proportionate approach to them will develop.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

Sarah Prager and Henk Soede, instructed by Travlaw LLP, acted for the successful Part 20 Claimant in this case.