E D & F Man Capital Markets Ltd v Straits (Singapore) PTE Ltd

Factual and Procedural Background

The Plaintiff initiated claims alleging a US$284 million fraud perpetrated by multiple defendants, including the tenth defendant (referred to as "Straits"). The Plaintiff commenced pre-action disclosure proceedings in Singapore against Straits, intending initially to bring substantive proceedings there. Subsequently, the Plaintiff commenced proceedings in England against the first and second defendants, governed by English law with exclusive jurisdiction clauses favoring English courts. The Plaintiff sought to join Straits and other defendants to the English proceedings and obtain permission to serve out of jurisdiction. Straits challenged the English court's jurisdiction, contending misuse of material disclosed in Singapore and asserting that the Plaintiff had elected Singapore as the proper forum. The Singapore High Court granted an injunction restricting use of certain materials but refused an anti-suit injunction. The English court heard the jurisdiction challenge after the Plaintiff amended pleadings to redact disputed material.

Legal Issues Presented

1. Whether the third requirement for permission to serve out of jurisdiction under CPR Part 11, namely that England is the proper place to bring the claim, was satisfied.
2. Whether the Plaintiff's prior conduct in Singapore precluded it from pursuing the claim in England (i.e., whether the Plaintiff is bound by its initial choice of forum).
3. Whether the use of material disclosed in Singapore breached an implied undertaking such that the English court's order should be set aside.
4. Whether the risk of multiplicity of proceedings and irreconcilable judgments should be given decisive weight in determining the proper forum.
5. Whether the judge erred in applying the governing law under Article 4 of the Rome II Regulation.
6. Whether the court's discretion to refuse jurisdiction should be exercised due to the Plaintiff's conduct.

Arguments of the Parties

Appellant's Arguments (Straits)

• The judge erred in allowing the Plaintiff to rely on amended pleadings without formal permission to amend.
• The order granting permission to serve out was flawed because it allowed service of documents later withdrawn or redacted.
• Caution is required when the only jurisdictional gateway relied upon is the necessary or proper party gateway, which the judge failed to observe.
• The judge improperly gave overriding weight to the avoidance of multiplicity of proceedings despite the Plaintiff having chosen to pursue multiple jurisdictions, contrary to the Supreme Court's decision in Lungowe v Vedanta Resources plc.
• The judge erred in his analysis of the governing law under Article 4 of Rome II, particularly regarding where direct damage occurred.
• The judge failed to properly consider whether the Plaintiff’s conduct, including misuse of Singapore materials, justified declining jurisdiction.
• The doctrine of approbation and reprobation applies, preventing the Plaintiff from changing its chosen forum after representations to the Singapore court.

Respondent's Arguments (Plaintiff)

• The risk of irreconcilable judgments is an important but not decisive factor; the judge correctly distinguished Vedanta as factually different.
• The Plaintiff had no choice but to sue the first and second defendants in England due to exclusive jurisdiction clauses, making England the proper forum for all claims.
• The Plaintiff’s initial intention to sue Straits in Singapore was provisional and changed once new evidence emerged implicating Straits in a conspiracy.
• The Plaintiff did not mislead the Singapore court; the use of material disclosed there was inadvertent and has been redacted.
• The judge properly exercised discretion and gave due caution when relying on the necessary or proper party gateway.
• The Plaintiff’s conduct does not warrant refusal of jurisdiction given the overriding objective and the circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the challenge to the use of material disclosed in Singapore, concluding that the Plaintiff's use was inadvertent and had been rectified by redactions. The Singapore High Court had not found oppressive conduct warranting an anti-suit injunction, and therefore the English court saw no reason to set aside the order permitting service out.

The court accepted that the first two requirements for permission to serve out were met and focused on the third: whether England was the proper place to bring the claim. The court applied the forum conveniens test from The Spiliada and the principles restated in AK Investments, considering the judgment in Lungowe v Vedanta Resources plc which emphasized a single jurisdiction for multi-defendant litigation but cautioned against giving decisive weight to the risk of irreconcilable judgments if the claimant had chosen to create that risk.

The court distinguished Vedanta on its facts, finding that the Plaintiff here had no real choice but to sue the first and second defendants in England due to exclusive jurisdiction clauses, and that the Plaintiff had not irrevocably elected Singapore as the forum for claims against Straits. The Plaintiff's initial intention to sue Straits in Singapore was provisional and changed upon receipt of new evidence. The court rejected the application of the doctrine of approbation and reprobation as no binding election had been made.

Given the complex conspiracy claims involving multiple defendants, the court gave significant weight to avoiding multiplicity of proceedings and inconsistent judgments, favoring England as the single composite forum. Other factors such as governing law and parties' locations were considered but found less significant.

The court also addressed the residual discretion to refuse permission to serve out, concluding that the Plaintiff’s conduct did not justify such refusal given the inadvertent nature of the use of Singapore materials and the overriding objective.

Finally, the court declined to decide complex issues regarding governing law under Article 4 of Rome II as they were not determinative of the appeal.

Holding and Implications

The court DISMISSED the appeal by Straits challenging the jurisdiction of the English courts.

The direct effect is that the English court's order granting permission to serve out of jurisdiction stands, allowing the Plaintiff to proceed against Straits in England. The court confirmed that England is the proper forum for the claims against all defendants, emphasizing the importance of avoiding multiplicity of proceedings and inconsistent judgments. No new legal precedent was established, as the court carefully distinguished prior authority and applied existing principles to the facts.