SSL International Plc & Anor v TTK LIG Ltd & Ors , England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

Thomas de la Mare and James Segan (instructed by Jones Day) for the Appellants
The Respondents did not appear and were not represented

Judges

LORD JUSTICE MUMMERY
LORD JUSTICE STANLEY BURNTON
LADY JUSTICE ARDEN

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SSL International Plc & Anor v. TTK LIG Ltd & Ors (Rev 1)

Smart Summary

Factual and Procedural Background

The Claimant Appellants ("the Claimants") initiated proceedings seeking injunctions and damages against the Defendant Respondents ("the Defendants") following the breakdown of a joint venture relationship involving the First Defendant ("TTK"), an Indian joint venture company equally owned by the Claimants (through a subsidiary) and certain Defendants. TTK's business was the manufacture and supply of condoms, principally to the Claimants. The Claimants appealed orders by Mann J and Peter Smith J, who refused urgent injunctive relief requiring TTK to deliver condoms and refused judgment in default against TTK for failure to file an acknowledgment of service. The Defendants did not file acknowledgments or appear, disputing the court's jurisdiction. The appeals were dismissed after a resumed hearing.

Legal Issues Presented

Does CPR Part 6.5(3)(b) permit service on "a person holding a senior position within [a] company or corporation" if the company or corporation does not carry on business and is not present within the jurisdiction?
If not, did TTK carry on business within the jurisdiction when the proceedings were served?
If the answers to (1) and (2) are negative, did TTK waive the defect in service?
If any of the answers to (1), (2), or (3) is affirmative, should the court grant the relief sought by the Claimants?
Did Mann J err in rejecting the Claimants' case that the contracts between TTK and SSL were on SSL's standard terms, which included an express choice of English law?
Did Mann J err in refusing permission to serve the claim form on the Defendants out of the jurisdiction?
Did Mann J err in refusing to grant an interim injunction requiring TTK to deliver condoms pursuant to accepted orders?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Okura & Co., Limited v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715	Service on foreign corporations requires that the corporation carry on business or have a presence within the jurisdiction.	Reaffirmed that service on an officer of a foreign corporation is valid only if the corporation is "here" by carrying on business within the jurisdiction.
The Theodohos [1977] 2 Lloyd's Rep 428	Foreign company not carrying on business within the jurisdiction cannot be served by service on an officer within the jurisdiction.	Held that service on a foreign company not carrying on business within the jurisdiction was invalid.
The Vrontados [1982] 2 Lloyd's Rep 241	Confirmed The Theodohos principle that foreign companies must carry on business within the jurisdiction to be served there.	Set aside service on a foreign company despite directors residing in the jurisdiction.
Adams v Cape Industries [1990] 1 Ch 433	Clarified that jurisdiction over foreign corporations requires them to carry on business within the jurisdiction.	Endorsed the "Okura line of cases" and confirmed the requirement of business presence for jurisdiction and service.
Kuwait Airways Corporation v Iraqi Airways Co. [1995] 1 WLR 1147	Distinguished from The Theodohos as the defendant carried on business within the jurisdiction.	Did not cast doubt on The Theodohos principle.
Rolph v Zolan [1993] 1 WLR 1305	Service can be valid even if the defendant is out of the jurisdiction, under County Court Rules.	Supported the view that CPR rules follow County Court Rules rather than RSC, implying a more liberal approach to service.
City & Country Properties Ltd v Kamali [2007] 1 WLR 1219	Rejected the proposition that temporary absence from the jurisdiction invalidates service.	Distinguished presence carrying on business from mere temporary absence; service valid where business presence exists.
Powell Duffryn plc v Wolfgang Petereit [1992] ECR I-1475	Jurisdiction agreements must be in writing or evidenced in writing to be binding under the Judgments Regulation.	Confirmed that shareholders are bound by company statutes conferring jurisdiction but distinguished from general terms of sale contracts.
Re Wait [1927] 1 Ch 606	Definition of "ascertained goods" for specific performance under Sale of Goods Act.	Applied to assess whether goods subject to injunction were ascertained; court found they were not.

Court's Reasoning and Analysis

The court analyzed the validity of service on the First Defendant, TTK, under CPR Part 6.5(3)(b). It applied the principle from The Theodohos and related cases, concluding that a foreign corporation must carry on business within the jurisdiction for service on its officer within the jurisdiction to be valid. The court found that TTK did not carry on business within the jurisdiction, as occasional board meetings and approvals in England did not amount to carrying on business there. Consequently, service on a director present in the jurisdiction was invalid and TTK had not waived this defect.

The court further examined whether the Claimants' standard terms and conditions were incorporated into the contracts with TTK. It found no documentary or evidential basis for incorporation, rejecting assertions of belief by directors as insufficient. The contracts were governed by Indian law, not English law.

Regarding injunctive relief and permission to serve out of jurisdiction, the court noted that the goods were not "ascertained goods" under the Sale of Goods Act, as the Claimants could not identify specific goods subject to contract. The complexity of supervision and enforcement of any injunction in India, the lack of connection to the jurisdiction, and the existence of parallel proceedings in India before the Company Law Board weighed against granting relief. The court agreed with Mann J that India was the appropriate forum for the dispute.

Holding and Implications

The court DISMISSED the Claimants' appeals against the orders of Mann J and Peter Smith J.

The direct effect is that the Claimants are not entitled to injunctive relief or judgment in default against TTK in the English courts. The court affirmed that service on a foreign company under CPR Part 6.5(3)(b) requires the company to carry on business within the jurisdiction. The contracts are governed by Indian law, and the English courts are not the proper forum for these disputes. No new precedent was established beyond the application of existing principles to the facts.