The Dekagram: 11th May 2026

This week we focus on how, and where, to resolve disputes; and remind our readers (again) of the dangers of failing to comply with service requirements.

• Sarah Prager KC has news of another unsuccessful jurisdictional challenge;
• Conor Kennedy considers how to reconcile competing dispute resolution clauses in related contracts;
• William Dean takes another look at service requirements and the consequences of failing to comply with them.

Meanwhile, we note that the claim in the Dyson litigation has now settled without admission of liability; watch this space for what the author considers to be an inevitable avalanche of ESG related claims against English-registered companies operating abroad.

Determining the Appropriate Forum in Multiparty Cases

In the latest in a series of decisions rejecting challenges to the jurisdiction of the courts of England and Wales, Fox v (1) Steve Fellows Road Haulage Services Limited, (2) Francisco Manuel Museros Lopez, (3) AXA Seguros Generales SA de Seguros y Reaseguros, the Honourable Mrs Justice Heather Williams DBE has strengthened the ability and willingness of the English courts to consider employers’ liability claims with a cross border element.

The Facts

Mr Fox is an Englishman who, at the time of the accident which was the subject of the claim, had been working for many years as an HGV driver. He worked for the first defendant out of its depot in England, but was required in the course of his duties to transport goods to and from Spain, including from the second defendant’s warehouse in Onda, a staggeringly beautiful location (the town, not the warehouse). The third defendant provided the second defendant with public liability insurance for those premises.

On 9^th February 2023 Mr Fox was at the warehouse collecting a consignment of tiles when, as he walked across the warehouse floor, he was struck by a forklift truck which happened to be driven at the time by Mr Museros Lopez himself. As a result he sustained a very serious crush/degloving injury to his left foot, the type of injury all too familiar to personal injury specialists, and as is so often the outcome in such cases he subsequently developed sepsis in the foot and had to undergo a below-knee amputation upon his return to England. He has not been able to return to work since the accident.

Mr Fox brought a claim against his English employer on the basis of the non-delegable duty of care it owed to him in relation to his workplace; amongst other things, CCTV footage of the accident shows that there was no demarcation of vehicle and pedestrian areas within the warehouse, and he asserts that he had been provided with inadequate information as to the correct procedure for loading and unloading vehicles whilst on the premises. Proceedings were served on the first defendant within the jurisdiction and (perhaps unsurprisingly) it did not challenge the jurisdiction of the courts of England and Wales. It follows therefore that a trial of the issue of liability will take place as between the claimant and first defendant within this jurisdiction, subject to any settlement negotiations that may eventuate, liability being denied on behalf of the first defendant.

Mr Fox also issued proceedings against Mr Museros Lopez and his insurer, founded on the former’s status as warehouse owner, quasi-employer and vehicle driver, and on the direct right of action under Spanish law as against the latter as insurer. He sought and obtained permission to serve the Spanish defendants outside the jurisdiction, and in due course they challenge the jurisdiction of the English courts.

Meanwhile the first defendant filed and served a defence to the claim in which it denied liability, asserted that Mr Fox was the author of his own misfortune, and blamed Mr Museros Lopez for the accident. The first defendant also sought permission to bring a claim against the second and third defendants and for permission to serve them outside the jurisdiction. The second and third defendants resisted these applications on the basis that the claim for contribution or indemnity was premature and thus impermissible under Spanish law, and that the proper forum for consideration of the contribution claim was Spain.

The Challenges

The second and third defendants initially challenged jurisdiction on the ambitious grounds that the claim did not pass through any of the jurisdictional gateways to be found within CPR6PD6B. It was the claimant’s case that he passed through both the anchor defendant and tort gateways set out in paragraphs 3.1(3)(b) and 3.1(9)(a) respectively. These state that the claimant may serve a claim form out of the jurisdiction with the permission of the court under CPR rule 6.36 where, respectively:

(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –

(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.

(9) A claim is made in tort where –

(a) damage was sustained, or will be sustained, within the jurisdiction.

For reasons which were never ventilated because in the event the point was not pursued, the second and third defendants initially contended that Mr Fox could not satisfy these conditions, to which the only response the author could possibly give would be “Supremes in Brownlie” and “they cut his leg off in England”.

The second and third defendants did however pursue the contention that Mr Fox did not have a realistic prospect of succeeding in his claim against them. The second defendant argued that the claimant himself was to blame for the accident, and that under Spanish law he could not recover damages in respect of it; and the third defendant initially took the position that because there was an indemnity cap of €300,000 under the insurance policy, and the claim far exceeded that sum, there was no reasonable prospect of success as against it. This latter contention was wisely not pursued at the hearing.

The real crux of the challenge however was the contention that the proper forum for consideration of the claims against the second and third defendants was Spain, since the accident had occurred in Spain, the applicable standards were those of Spain, the applicable law was that of Spain, some of the documents and the witnesses as to liability were located in Spain, the language of the investigation as to liability was Spanish, and the paying party was located in Spain.

The Judgment

In a carefully reasoned judgment featuring a helpful precis of the authorities to date on the issue of jurisdiction in multiparty claims and indeed more generally, Mrs Justice Heather Williams DBE concluded that:

• Given that it is well-established that at the jurisdictional stage the court is not permitted to conduct a mini-trial of the facts, she was satisfied that the claimant had established that there was a serious issue to be tried in relation to the merits of his claim against the second defendant based on Article 1902 of the Spanish Civil Code (ie fault based liability). It followed that there was also a serious issue to be tried against the third defendant, whose liability is parasitic upon the liability its insured;
• The starting point for determination of the appropriate forum was the place of the accident – here, Spain;
• Furthermore, it is generally preferable for a case to be tried in the country whose law applies – here, Spanish law applies in relation to the claim as between the claimant and second and third defendants, although the applicable law was in dispute as between the first defendant on the one hand and the second and third defendants on the other;
• However, the English High Court is experienced in applying foreign law and competent to do so;
• Notwithstanding all of this, of the utmost importance was the consideration that if the challenge succeeded, it was inevitable that two trials would eventuate, in two different jurisdictions, with a risk of inconsistent findings of fact and law:

“The central concern that arises where there is a multiplicity of proceedings in different jurisdictions is the risk of inconsistent judgments… This is regarded as “a very important” factor in identifying the appropriate forum… Consequently, the Court looks for a single jurisdiction in which the claims against all the defendants may most suitably be tried… There is only one candidate in the present case, the jurisdiction of England & Wales.”

• Given that the claim as between the claimant and second and third defendants was to proceed in the English courts, it followed that those courts were also the appropriate forum in which to hear the claims between the defendants.

Comment

Interestingly in their challenge to jurisdiction in the main claim the second and third defendants relied upon what they asserted to be difficulties in enforcing an English judgment within the Spanish jurisdiction, much as AXA did in the jurisdictional challenge in Ibrahim v AXA Belgium KB-2023-003290. In that case Master Fontaine commented:

“…as one would expect, enforcement of a Belgium judgment in Belgium would be easier and quicker than enforcement of an English judgment in Belgium, particularly post Brexit.  That is a relatively neutral factor, in that it has not deterred the Claimant from preferring the jurisdiction of his home court.  Further, one might expect that the Defendant, part of a substantial international insurance group, would not require a judgment of this court to proceed through an enforcement process, and that they would honour the judgment of the English court…”

In Fox Williams J dealt with the issue in similar terms at paragraph 99 of her judgment:

“Ms McTague also relied upon the potential difficulties of enforcing a judgment of this Court against D2 and/or D3 in Spain (para 26 above). Huxford 3 suggests these difficulties are overstated (para 52 above). In any event, as Ms Prager KC submitted, it is a relatively unattractive argument for D2 and/or D3 to suggest that a factor in their favour at this stage is that if trial takes place in this jurisdiction they may choose not to comply with a judgment of the English Court; and it would be surprising if a well known company that was part of a multi-national group, such as D3 failed to do so. In the circumstances, I do not attach weight to the enforceability aspect.”

Might it now be taken as read that the English High Court will expect multinational insurers such as AXA to honour the judgments of the English courts? Time will tell, but it does certainly appear from this brace of cases that it is a tactical error to threaten to ignore the judgments of the very judges tasked with determining these applications, especially if you happen to be a multinational insurer encompassing an English entity regulated by an English enforcement authority.

Other than this relatively minor tactical point, the judgment is an encouraging one for claimants and for English employers seeking to anchor cross border employers’ liability cases within this jurisdiction, and also confirms the courts’ longstanding position that if it is at all possible to avoid the risk of irreconcilable judgments, it is better to do so. The entirety of the claim will now proceed in Mr Fox’s home court.

It is also worth noting that the task of the author in meeting the jurisdictional challenge was rendered much easier than it might have been by the fact that the witness statement supporting the ex parte application for permission to serve proceedings outside the jurisdiction comprehensively addressed the jurisdictional issues as they appeared likely to be at that time. It is impossible to overstate the importance of the evidence in support of ex parte applications, and in particular those applications which are likely to be revisited subsequently. Whilst it is inevitable that the evidence will and should nudge the judge in the desired direction, it must also set out the possible arguments running counter to the applicant’s position so that the judge has all matters before him or her on the application. In that respect, and in its command of the complex issues of fact and English and Spanish law, the witness evidence before the judge in Fox was irreproachable.

Sarah Prager KC, instructed by Rebecca Huxford of Stewarts Law LLP, acted for the claimant in this case.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, 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 few decades. 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, including serious sexual assault and cases involving children.

FH Holding Moscow v AO UniCredit Bank [2026] EWCA Civ 468: Competing Dispute Resolution Clauses, Anti-Suit Relief, and Foreign Seats

Introduction

In the recent case of FH Holding Moscow v AO UniCredit Bank [2026] EWCA Civ 468, the Court of Appeal considered how to reconcile competing dispute resolution clauses in related contracts.

The Facts

None of the parties to the Russian litigation had any presence in England, and the property in question was in Russia. The appellant claimant in the English proceedings was a Cypriot company which operated solely in Russia. The defendants and respondents in the English proceedings were Russian and Italian banks, and only the Italian bank had a branch office in London.

The appellant claimant was a borrower under a loan (“the Facility Agreement”). Under a default provision within the Facility Agreement, any default would entitle the Russian Bank to accelerate all of part of the loans so that they become immediately due and payable.

The Facility Agreement contained an arbitration clause which provided that any dispute arising out of or in connection with this agreement would be referred to and resolved by arbitration under the Vienna Rules, with the seat of arbitration to be Vienna.

By reason of section 6A of the Arbitration Act 1996, inserted into the 1996 Act by the Arbitration Act 2025, the arbitration clause was governed by Austrian law, that being the law of the seat. Section 6A had reversed the Supreme Court’s decision in Enka Insaat v OOO Insurance [2020] UUKSC 38, according to which the default rule was that the law applicable to an arbitration agreement was the governing law of the underlying contract.

In addition to the Facility Agreement, there was a Mortgage Agreement between the appellant claimant and the Russian bank. By this latter agreement, various properties in or around Moscow were provided as security for the loans provided under the Facility Agreement. The Mortgage Agreement was governed by Russian law, and contained a jurisdiction clause stipulating that any dispute arising out of or in connection with the Mortgage Agreement was to be referred to and settled by the Commercial Court of Moscow, in accordance with Russian law.

The Russian Litigation

The appellant claimant’s position was that it had not defaulted under the Facility Agreement, on the basis that Russian sanctions had made it unlawful under Russian law to make certain payments due under the Facility Agreement. The Russian bank disagreed, and issued proceedings in a Russian court seeking foreclosure of the secured assets.

The English Proceedings

The appellant claimant contended that the issue of whether there had been a default was subjected to arbitration in Vienna. It issued an application in England for an anti-suit injunction against the banks. Following a without notice application, HHJ Pelling KC granted permission to serve the application out of the jurisdiction on the Russian bank on the following grounds (inter alia):

• Pursuant to CPR PD 6B, para 3.1(3), on the basis that the Russian bank was a necessary and proper party to the anti=suit injunction claim against the Italian bank, over which the court had jurisdiction because the Italian bank had a branch in London;
• Pursuant to the same practice direction, paragraph 3.1(6)(c) on the basis that the injunction claim was made in respect of a contract (the Facility Agreement) governed by English law.

The application then came before Henshaw J, who set aside permission to serve out of the jurisdiction on the Russian bank, and dismissed the claim against the Italian bank.

The Court of Appeal’s View

On appeal, the Court of Appeal observed that as dispute as to whether there had been a default was capable of falling within both the arbitration clause in the Facility Agreement and within the jurisdiction clause int eh Mortgage Agreement. As such, these were competing dispute resolution clauses.

The English law principles to be applied in cases of competing dispute resolution clauses were summarised by Lord Justice Hamblen in BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2019] EWCA Civ 768,at para 68, as follows:

‘(1) Where the parties’ overall contractual arrangements contain two competing jurisdiction clauses, the starting point is that a jurisdiction clause in one contract was probably not intended to capture disputes more naturally seen as arising under a related contract …

(2) A broad, purposive and commercially-minded approach is to be followed …

(3) Where the jurisdiction clauses are part of a series of agreements they should be interpreted in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme …

(4) It is recognised that sensible business people are unlikely to intend that similar claims should be the subject of inconsistent jurisdiction clauses …

(5) The starting presumption will therefore be that competing jurisdiction clauses are to be interpreted on the basis that each deals exclusively with its own subject matter and they are not overlapping, provided the language and surrounding circumstances so allow …

(6) The language and surrounding circumstances may, however, make it clear that a dispute falls within the ambit of both clauses. In that event the result may be that either clause can apply rather than one clause to the exclusion of the other.’

The Court of Appeal agreed with the reasoning of Henshaw J, which can be summarised (in abridged form) as follows:

1. The dispute about whether a default had occurred fell within the scope of the Mortgage Agreement jurisdiction clause, as well as the Facility Agreement Arbitration Agreement.
2. The Mortgage Agreement had provided that execution could be levied by a judicial procedure as soon as an event of default had occurred, as distinct from after a separate arbitral process confirming the event of default.
3. Such construction of the documents did not render the Facility Agreement Arbitration Agreement nugatory. Disputes over the loans could very well arise outside the context of mortgage enforcement. For example, the lenders might seek an arbitration award that could be enforced against the Claimant, as opposed to seeking to enforce against the Russian properties.

Although the Court of Appeal reached its conclusion applying the English principles which the claimant appellant had invited it to apply, the court thought it was “by no means obvious that this is the appropriate approach” when the issue depended on interpreting a Russian law contract including a Russian jurisdiction clause and an arbitration agreement governed by Austrian law. It would have been an ambitious conclusion for the court to conclude, applying English law, that the Moscow court’s interpretation of the Russian law Mortgage Agreement might have been wrong.

The court further noted that, on both parties’ cases, there was a degree of fragmentation which could not be avoided. Whereas arbitration in Vienna might be a possibility in the event that the Moscow security proved insufficient, duplication would be a certainty on the claimant appellant’s case, because an award in Vienna would be a condition precedent to enforcement of the mortgage security. This seemed artificial to the Court of Appeal. A dispute as to whether there had been a default was exactly the sort of dispute which would be expected to arise in enforcement proceedings. The claimant appellant’s position, if accepted, would have substantially negated the lenders’ ability to enforce its security fully, such action to include the possibility of interim relief.

The decision on the arbitration agreement meant that it was unnecessary for the court to determine the claimant appellant’s other grounds of appeal, but the Court of Appeal did observe (obiter) in relation to the contention that the English court had jurisdiction over the Russian bank because the Facility Agreement was governed by English law, that such an argument would allow a claimant to use the contract gateway even where the real connection with this jurisdiction was minimal.

Analysis

Inconsistent dispute resolution clauses are not uncommon where commercial relationships between parties are governed by multiple related contracts. The Court of Appeal’s decision in this case is a reminder of the practical and commercial principles of construction that the English courts apply to such contracts, and to questions of jurisdiction and applicable law which arise under such contracts.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.

The (Further) Perils of Failing to Comply with Service Requirements

Regular readers will know that the courts often emphasise the need to comply with the Civil Procedure Rules, particularly as they relate to the service of a claim form. Where a litigant fails to take the required steps, the court has powers of retrospective validation and time extension, but they are exercised sparingly.

In Valentine London Ltd v. Secretary of State for Housing, Communities and Local Government [2026] EWHC 790 (Admin), Fordham J. declined to exercise those discretionary powers and, in so doing, made clear that, in a “disciplined arena”, “the rules and compliance with them really matter”. Although the case involved a claim for a statutory review of a planning decision – not obviously within the usual scope of this newsletter – the general principles engaged are those that arise in a great number of claims that readers will encounter.

The provisions peculiar to this type of claim provided that the claim form must be filed and served within six weeks of the relevant planning decision. The judge noted that, for these purposes, a “claim form” means a sealed claim form; in other words, one that was already filed. In Valentine London Ltd, there were two available destinations for serving the claim form: the Government Legal Department’s postal address on Petty France in London; and a designated e-mail address. Both were specified in the relevant practice direction and both appeared in pre-action correspondence from the Defendant.

Unfortunately for the Claimant, a series of mis-steps meant that he did not serve a sealed claim form at the correct place. The service deadline was a Monday. On the Friday immediately preceding it, he submitted a claim form to the Administrative Court Office and sent a copy (unsealed) to the Defendant’s designated e-mail address; but, alas, it was the wrong type of claim form for the case he wished to bring. The court office pointed that out to him and, after expressing what the judge summarised as “indignation”, the Claimant “wisely decided to refile the papers” as advised. He did so by e-mail at 3.11 p.m. on the Monday. With admirable alacrity, the court office returned a sealed copy at 3.19 p.m., a mere eight minutes later. The court found as fact that the Claimant then proceeded to do nothing for the rest of the day. On the Tuesday, he sent an unsealed copy of the claim form to the Defendant by e-mail. On the Thursday, after a flurry of e-mail correspondence, the Claimant sent a sealed copy by e-mail to the direct e-mail address of a lawyer acting for the Defendant – but not to the designated e-mail address.

The Claimant applied for an order under rule 6.15 making good the steps he had taken or, alternatively, an order under rule 7.6(3) extending time for him to serve the claim form. Rule 6.15(1) permits the court where “it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted” to “make an order permitting service by an alternative method or at an alternative place”. Such an order may retrospectively authorise service “even where a claim would otherwise be timed-out”: Abela v. Baadarani [2013] UKSC 44. Rule 7.6(3) provides that the court may make “an order to extend the time” for service “only if the claimant has taken all reasonable steps to comply with [the step required to effect service] but has been unable to do so”.

On the first part of the application, Fordham J. considered the decision of the Supreme Court in Abela, which held (as he summarised) that the question was “whether, in all the circumstances of the particular case, there is a good reason to make the order sought”, noting that a “critical factor” was whether the defendant had “learned of the existence and content of the claim form”.

The Claimant argued that he had sent the “substantive content” of his claim to the Defendant on the Friday within the unsealed incorrect claim form. He said that, in those circumstances, the Defendant was aware of the claim (and the Claimant confirmed that such a claim had been issued a few days later) and it would cause great prejudice to the Claimant (and none to the Defendant) if the power in rule 6.15 were not exercised, given he was “doing his level best” as a litigant in person. Fordham J. disagreed. There could be no good service of a claim before it had been issued: there “could not be valid service of non-existent proceedings” in the words of Carr L.J. (as she then was) in R. (on the application of Good Law Project Ltd) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355; and the Claimant was “not seeking an alternative method of service” but “a change in the thing which has to be served” in the words of Sir Julian Flaux C. in Ideal Shopping Direct Ltd v. Mastercard Inc. [2022] EWCA Civ 14. Further, the “fact of a default in failing to use the method of service … required by the rules” was “the situation for the exercise of the power” in rule 6.15, and could not be a reason for exercising it, without more. The judge was clear that it had been “inexcusable” (an adjective used about the Claimant’s default five times in the judgment) not to serve the sealed claim form at the correct e-mail address in the required time, even though he knew that is where it should have been sent.

With similar force, the judge dismissed the Claimant’s arguments in favour of authorising service by the e-mail sent on the Thursday. There was no good reason to do so. In considering that question, the judge considered rule 7.6(3), because authorisation of late service would necessarily also require an order extending time. He found that the Claimant had not taken “all reasonable steps” to effect service by the deadline. The Claimant had also failed to take all reasonable steps after the deadline, because (extraordinarily) he had never sent the sealed claim form to the designated postal address or the designated e-mail address. The judge had no sympathy for the Claimant’s “excuse” that he was trying to avoid undermining his primary case that steps already taken had been sufficient.

Fordham J. (with references to Rogers v. Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 1554 and Barton v. Wright Hassall L.L.P. [2018] UKSC 12) noted that service of a claim form is “an area where what is required is clarity and certainty” and “the rules are clear and accessible”. All litigants, not just qualified practitioners, are expected to understand and apply the rules.

About the Author

William Dean has a busy personal injury practice involving claims arising from serious injury and death. He regularly advises and appears in cases of factual, evidential legal and procedural complexity, including at trial. He is a contributor to the Butterworths Personal Injury Litigation Service and the APIL Guide to RTA Liability. He is the Convenor of the Examination Board of the Diploma in Forensic Medical Sciences. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, and is a contributor to the leading textbook in that field.