The areas of work in which we have particular expertise, experience and excellence.
The areas of work in which we have particular expertise, experience and excellence.
Articles, News | Mon 2nd Oct, 2023
This week’s Dekagram is all about jurisdiction and in particular the application of the post-Brexit rules on service outside the jurisdiction. As anticipated, Brexit has led to an avalanche of contested applications around jurisdiction, some of them relating to proceedings issued prior to Exit Day, and many more to proceedings initiated under the new rules. No matter how often the courts attempt to frame these jurisdictional issues as being perfectly simple factual enquiries, which might as well be conducted on paper, there seems to be an insatiable desire on the part of litigants to ventilate them in costly applications – and who shall blame them? A successful jurisdictional challenge can, and often does, see off a claim entirely. So it is that a thorough working knowledge of the latest caselaw in the area is indispensable for all cross border practitioners.
The Application of the New Jurisdictional Rules under CPR 6.33(3): Transitional Proceedings
In CA Indosuez (Switzerland) SA v Afriquia Gaz SA [2023] EWCA Civ 1072 the Court of Appeal turned its collective mind to the application of the new CPR Part 6.33(3) to claims issued prior to Exit Day and during the transitional phase immediately preceding that date.
The respondents to the appeal (the buyers) had entered into a transaction for the purchase of commercial butane from the first Part 20 defendant (the seller). The sale contract was subject to the exclusive jurisdiction of England and Wales. The seller invoiced the buyers and asked for payment to its account with the claimant bank, to which the invoice sum had been assigned. The buyers paid the sums to the seller’s account at UBS instead of to the claimant. UBS refused to return the funds. In the main proceedings, the claimant issued proceedings against the buyers, who denied the claim and disputed the validity of the assignment. The buyers issued a Part 20 claim against UBS alleging that, if they were liable to the claimant, then UBS had been unjustly enriched. The Part 20 claim was issued the day before the expiry of the EU exit implementation period.
The claim form was endorsed with the assertion that the buyers were permitted to serve the claim on UBS in Switzerland pursuant to Article 6(2) of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988, which provided for a person to be sued in third party proceedings in the court seised of the original proceedings. Swiss law applied to the claims. The buyers duly served the Part 20 claim form on UBS in Switzerland without obtaining the court’s permission to serve out of the jurisdiction. UBS made jurisdictional challenges, which were the subject of the appeal. The judge at first instance held that an amendment to CPR6.33(3) relating to service out of the jurisdiction, which came into effect at the end of the implementation period, did not introduce a requirement to obtain the court’s permission to serve out of the jurisdiction transitional claim forms issued but not served before the UK ceased to be a party to the Convention, and that the English court had not lost the jurisdiction it had had under Article 6(2) at the date of issue of the Part 20 claim by reason of the intervening settlement of the main proceedings.
UBS appealed to the Court of Appeal, which rejected its appeal. The Court held that in amending CPR6.33, Parliament must have been aware that the Lugano Convention continued to apply in relation to transitional claims, having made provision for that outcome in Regulation 4(16)(a) of the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019. In that context, CPR6.33(3) had to be read as permitting service of those claims which continued to be governed by that instrument. There was no policy reason why the court’s permission should begin to be required for the service abroad of a relatively small number of transitional claims under the Convention.
Further, the question of whether Article 6(2) applied fell to be considered at the date of issue of a third party claim. UBS contended that the court was obliged to make a further assessment as to whether it continued to apply if the main proceedings settled between issue and the hearing of the jurisdictional challenge. The Court held that there was no support in the Convention or any EU authority for the proposition that jurisdiction, once founded at the date of issue, could subsequently be lost. That proposition directly conflicted with and undermined the principle of legal certainty, as it could result in a Part 20 claimant who had issued and served proceedings under Article 6(2) finding their claim ousted from a properly chosen jurisdiction, outside a relevant limitation period and with no remedy against the Part 20 Defendant in any jurisdiction (cf in this respect Canada Trust Co v Stolzenberg [2002] 1 A.C. 1, [2000] 10 WLUK 361).
Determination of whether a claim fell within Article 6(2) required an exercise of judgement by the court. However, that discretion was not as to whether to accept jurisdiction under Article 6(2), but as to whether the proceedings should be permitted to proceed as a matter of domestic procedural rules (applying the decision in Kinnear v Falconfilms NV [1996] 1 W.L.R. 920, [1994] 1 WLUK 570), and it would be contrary to the purposes of the Convention if a court had discretion to decline to accept jurisdiction which would otherwise have been established under Article 6(2). The Part 20 claim was therefore allowed to proceed notwithstanding that by the time the jurisdictional challenge was heard the main claim had settled and there was nothing to ‘anchor’ the Part 20 claim to.
Comment
Respectfully, it seems to this author that this decision must be right. Where a claim form was issued prior to Exit Day, it cannot be right that it can be affected by subsequent alterations to the Rules. Furthermore, the points made in respect of subsequent settlement of the main claim must also be right, otherwise the absurd situation would arise where a main claim could not be settled for fear of losing jurisdiction in a Part 20 claim, which given the current long court delays might not be determined for many months (if not years, if Lady Brownlie’s experience is anything to go by). This might result in a defendant in a main claim not being able to accept a claimant’s advantageous offer of settlement, forcing it to reject such an offer in order to maintain its Part 20 claim – in circumstances in which it is axiomatically the fact that the Part 20 defendant would be disadvantaged by such a rule. Although this may appear to be an obvious result, it is nevertheless reassuring that the Court of Appeal has endorsed this approach to settlement in cases involving Part 20 proceedings.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.
The Application of the New Jurisdictional Rules under CPR 6.33(2B)(b): Jurisdiction Clauses
In Pantheon International Advisors Limited v Co-Diagnostics Inc [2023] EWHC 1984 (KB), Master Stevens was asked to determine a jurisdictional dispute which centred on, inter alia, a discrete issue of contract law and the application of the new CPR 6.33(2B)(b). The decision constitutes a useful illustration of the court’s approach to the claimants’ burden of establishing a ‘good arguable case’.
Background
In June 2021, the Claimant (“Pantheon”) issued a claim against the Defendant (“CDX”) in which it was alleged that CDX owed sums for services provided by Pantheon pursuant to a contract allegedly entered into in 2018 (the “alleged 2018 contract”). Pantheon contended that permission to serve out on CDX was not required on the basis that contract contained an exclusive jurisdiction clause in favour of the English courts and reliance was placed on CPR 6.33(2B)(b). In September 2021, Pantheon served the claim form on CDX out of the jurisdiction.
CDX filed an acknowledgement of service in which they sought to contest jurisdiction. So far as material to this case note, CDX’s principal contention was that the alleged 2018 contract was not a valid or binding agreement between the parties: the alleged 2018 contract was not signed by CDX and the surrounding evidence did not establish a mutual intention for the parties to be bound by it. In consequence, CPR 6.33(2B)(b) had no application.
Relevant principles
CPR 6.33(2B)(b) is a new provision introduced in April 2021 as part of the EU exit arrangements consequent upon Brexit. CPR 6.33(2B)(b) provides that a claimant does not require permission of the court to serve out on a defendant outside of the UK where “[…] for each claim made against the defendant to be served and included in the claim form—[…] (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim”.
It was common ground between the parties that Pantheon needed to satisfy the court that it has a “good arguable case”: see, e.g., Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Kaefer Aislamientos v AMS Drilling Mexcio [2019] EWCA Civ 10. At [18], Master Stevens identified the three key limbs to that test (see, also, Lord Sumption at [9] in Brownlie and Green LJ at [73]-[80] in Kaefer):
As to the dispute regarding the existence of a contract, Master Stevens noted that there can be no acceptance by silence and that conduct will only amount to acceptance if it is clear objectively that a party did an act with the intention of accepting the offer: [28]. The issue was approached as follows:
“[…] under limb (i) of the “good arguable case” test I need to establish that the claimant has the better argument that there is a “plausible evidential basis” for finding that the alleged 2018 contract is legally binding such that it satisfies the contractual gateway requirement of CPR 6.33(2B) (b) . I do not need to do so to the standard of the balance of probabilities. Where there is an issue of fact about it, then under the second limb I need to use common sense and if there is a dispute between witnesses to ascertain if the matter can be decided using the documents alone. Finally, if I am unable to form a decided conclusion on the evidence, the ultimate limb (iii) test is one combining a good arguable case with plausible evidence which is not necessarily conditional upon relative merits, but merely raising the issue is not enough to get the claimant home on the point.” [53].
Conclusions
Applying that approach to the material before the court, Master Stevens determined that Pantheon had a good arguable case as to the existence of a binding agreement. The reasons were that the disclosed documents contained ‘clear expression’ that terms were negotiated and agreed [55(i)-(ii)]; there were documents which showed performance of tasks (consideration) contemplated by the alleged 2018 agreement [55(iii)]; the absence of a signed counterpart contract by the defendant was not fatal given the surrounding documentary evidence [55(iv)]; and CDX produced insufficient evidence of Pantheon’s alleged lack of performance under the alleged 2018 contract [55(vi)]. Master Stevens determined further that “there is no apparent reason to suppose from the material before me currently that the parties were not of one mind as to their choice of jurisdiction and governing law” given the existence of the jurisdiction clause in the 2018 contract: [67]. Accordingly, it was appropriate for the claim form to be served on CDX without the court’s permission in reliance on CPR 6.33(2B)(b).
About the Author
Henk Soede was called to the Bar in 2019. He has developed a specialist practice in the field of travel and private international law and is a contributing editor to the leading practitioner text in this area, Saggerson on Travel Law and Litigation (7th Ed.). Henk has built up expert knowledge in all private international law matters, including issues relating to jurisdiction, foreign applicable law and the enforcement of foreign judgments. He also acts in contractual disputes between travel business which necessitate detailed understanding of the package travel legislation landscape. He is presently instructed by a major UK tour operator as sole counsel in a high value arbitration concerning the Covid-19 pandemic and various indemnity provisions linked to liability under package travel legislation. Henk is listed in the Legal 500 2023 as a Rising Star.
Call: 1997 Silk: 2023
Call: 2019
