Factual and Procedural Background
The Plaintiff claims a commission of US$10 million allegedly payable by the Defendant for her services as an agent in relation to the sale of an Airbus 340 aircraft by the Defendant to a foreign President. The claim form was issued in November 2007, and permission was granted for service on the Defendant out of the jurisdiction on an ex parte application. The Defendant applied under CPR Part 11 for an order declaring the court had no jurisdiction or alternatively that it should not exercise jurisdiction as it was not the appropriate forum. A deputy judge of the High Court dismissed the application. The Defendant now appeals against that order.
The deputy judge's factual findings were primarily based on witness statements from the Plaintiff and a solicitor acting for the Defendant, including information from the Defendant and a third party alleged to be the Defendant's representative. The Plaintiff is described as having business ties in multiple countries and running a consultancy company. The Defendant is a member of a royal family with extensive global interests. The third party, an accountant, denies being the Defendant's agent or having authority to contract on his behalf, contrary to the Plaintiff's allegations.
The Plaintiff alleges she entered into an oral agreement in London in August 2001, through the third party acting with authority, to broker the sale of one of the Defendant's aircraft to the foreign President, with an agreed commission. This agreement was allegedly ratified by the Defendant in 2002 and varied in 2003 in Libya. The Plaintiff claims to have been the principal negotiator leading to an agreed sale price and signed sale agreements. The Defendant denies any agreement to pay commission and disputes the Plaintiff's role in the sale.
The deputy judge applied the relevant CPR rules as they stood before October 2008 and referred to key House of Lords authorities on jurisdiction and forum. The judge found a good arguable case that the claim fell within certain jurisdictional gateways, that the claim had a reasonable prospect of success, and that England and Wales was the appropriate forum. The Defendant appeals these findings.
Legal Issues Presented
- Whether there was a good arguable case that the claim fell within the jurisdictional gateways under CPR 6.20(5)(a) (contract made within the jurisdiction) and CPR 6.20(6) (breach of contract committed within the jurisdiction).
- Whether England and Wales is the appropriate forum for the trial of the claim.
- Whether the court should accept a late undertaking by the Defendant to submit to the jurisdiction of the foreign courts and the effect of such an undertaking on the appeal.
Arguments of the Parties
Appellant's Arguments
- The Defendant contends there was no good arguable case that the contract was made within the jurisdiction, as the real agreement was the variation made in Libya, and the initial agreement was too uncertain.
- The Defendant argues the claim does not meet the "spirit" of the jurisdictional gateway and that the court should be cautious about assuming jurisdiction over a foreign defendant.
- Regarding the breach of contract gateway, the Defendant submits there was no contractual obligation to pay commission in London, as the Plaintiff did not establish the place of payment was London.
- The Defendant submits the connection to England is tenuous and accidental, with most relevant events and witnesses located abroad, and Libya is the appropriate forum.
- The Defendant argues the court should accept a late undertaking to submit to Libyan jurisdiction, which would affect the forum considerations.
Respondent's Arguments
- The Plaintiff maintains there was a binding contract made in London through the Defendant's agent, ratified by the Defendant and varied in Libya, thus satisfying the jurisdictional gateway.
- The Plaintiff disputes the Defendant's characterization of the contract and submits the case is within the spirit of the gateway.
- The Plaintiff argues the breach of contract occurred within the jurisdiction because the Defendant agreed to pay commission into a London bank account.
- The Plaintiff supports the deputy judge's finding that England and Wales is the appropriate forum, emphasizing convenience, enforceability of judgment, and the absence of submission to Libyan jurisdiction by the Defendant.
- The Plaintiff opposes acceptance of the late undertaking to submit to Libyan jurisdiction, citing procedural rules and fairness concerns.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 |
Establishes principles on jurisdiction and "exorbitant" exercise of jurisdiction. |
Referenced as part of the trilogy of House of Lords authorities defining modern law on jurisdiction. |
| Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 |
Guidance on forum non conveniens and appropriate forum analysis. |
Used to support the deputy judge's approach to determining the appropriate forum and appellate restraint. |
| Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 |
Further authority on jurisdictional principles. |
Included in the trilogy establishing modern jurisdiction law. |
| Canada Trust v Stolzenburg (No.2) [1998] 1 WLR 547 |
Definition of "good arguable case" in jurisdictional context. |
Applied to determine whether the Plaintiff's claim met the threshold for jurisdiction. |
| Cherney v Deripaska [2008] EWHC 1530 (Comm) |
Confirmed the approach to "good arguable case" standard. |
Supported the deputy judge's application of the standard. |
| BP Exploration Ltd v Hunt [1976] 1 WLR 788 |
Contract made within jurisdiction if made and then amended outside, unless amendment substitutes a new contract. |
Applied to hold the contract was made in London and varied in Libya, thus within jurisdiction. |
| Beck v Value Capital Ltd (No.2) [1975] 1 WLR 6 |
Court's caution in allowing service out of jurisdiction and consideration of the "spirit" of the rule. |
Discussed but court rejected its application to deny jurisdiction on the facts. |
| Bell & Co v Antwerp London and Brazil Line [1891] 1 QB 103; The Eider [1893] P 119; Comber v Leyland and Bullins [1898] AC 525; Cuban Atlantic Sugar Sales Corporation v Compania de Vapores San Elefterio Limitada [1960] 1 QB 187 |
Principles on breach of contract committed within jurisdiction, especially regarding place of payment. |
Considered in evaluating whether payment obligation was to be performed in London. |
| Ladd v Marshall |
Tests for admission of fresh evidence on appeal. |
Referenced in considering whether to accept late undertaking by Defendant. |
| Hamilton v Al-Fayed (No.4) [2001] EMLR 15 |
Authority on admission of fresh evidence and procedural fairness. |
Supported refusal to accept late undertaking. |
| Al-Koronky v Time-Life Entertainment Group Limited [2006] EWCA Civ 1123 |
Procedural discretion on fresh evidence and undertakings. |
Applied in context of late undertaking. |
| International Credit & Investment Company (Overseas) Ltd v Sheikh Kamal Adham [1999] I.L.Pr. 302 |
Enforceability of foreign judgments and weight in forum decisions. |
Supported the deputy judge's consideration of enforceability as favoring English jurisdiction. |
| Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 |
Contract made in one country and amended in another is regarded as made in the first country. |
Supported analysis that contract was made in London and amended in Libya. |
Court's Reasoning and Analysis
The court examined whether the claim satisfied the jurisdictional gateways under CPR 6.20(5)(a) and (6). It upheld the deputy judge's finding that there was a good arguable case the contract was made within the jurisdiction, based on the meeting in London between the Plaintiff and the Defendant's alleged agent, and subsequent ratification and variation. The court applied established authorities, including BP Exploration Ltd v Hunt, to conclude that a contract made in London and later varied abroad remains within jurisdiction unless replaced by a fresh agreement, which was not found here.
However, the court disagreed with the deputy judge's finding under CPR 6.20(6) that the breach occurred within the jurisdiction. It found no sufficient evidence that the Defendant agreed to pay commission in London or that London was the exclusive place of payment. The Plaintiff's request for payment to a London bank account did not amount to a contractual obligation nor an implied term, and no nomination of a specific account was made.
Regarding the appropriate forum, the court reviewed the deputy judge's detailed nine-factor analysis. It acknowledged some overstatement of England's connections due to the rejected breach of contract gateway but found the remaining reasons sound. These included the convenience of London for key witnesses, the lack of clear submission by the Defendant to Libyan jurisdiction, uncertainties about enforcement of Libyan judgments in England, and the relatively straightforward factual issues to be tried.
The court also considered but declined to accept a late undertaking by the Defendant to submit to Libyan jurisdiction. It emphasized principles limiting new evidence or submissions on appeal, the Defendant's multiple opportunities to offer the undertaking earlier, and the fairness and procedural implications of accepting it at a late stage. The court concluded the appeal should be decided on the material before the deputy judge.
In sum, the court upheld the deputy judge's decision that the claim fell within the jurisdictional gateway of contract made within the jurisdiction and that England and Wales was the appropriate forum, but reversed the finding on breach of contract within the jurisdiction.
Holding and Implications
The court DISMISSED THE APPEAL, thereby affirming the deputy judge's order allowing the Plaintiff to pursue her claim in England and Wales.
The direct consequence is that the Plaintiff may continue her claim in this jurisdiction. The decision clarifies the application of jurisdictional gateways under CPR Part 6, particularly confirming that a contract made in England and later varied abroad remains within the jurisdiction unless replaced by a new contract. The court's refusal to accept a late undertaking underscores the importance of procedural timing and fairness in appellate proceedings. No new precedent was established beyond the application of existing authorities to the facts.