Factual and Procedural Background
The Defendants applied under CPR Part 11 to challenge the validity of service and jurisdiction over three Defendants: a Brazilian orange juice producing company ("Sucoc trico Cutrale") and two Brazilian citizen shareholders ("Cutrale Snr" and "Cutrale Jnr"). Two claims are before the court, collectively pursued on behalf of numerous individuals and companies, concerning an alleged cartel among Brazilian orange juice producers and the Brazilian Association of Citrus Exporters (ABECITRUS). The claims relate to alleged antitrust infringements committed in Brazil, causing harm to the Claimants there. The Claimants assert jurisdiction in England and Wales on the basis that Sucoc trico Cutrale has its central administration in London, or alternatively that service was validly effected within the jurisdiction. They also contend that Cutrale Snr is domiciled in England and that claims against Cutrale Jnr, domiciled in Switzerland, should be heard in England due to their close connection with the other Defendants.
The Defendants contest these jurisdictional bases, arguing that Sucoc trico Cutrale's central administration is in Brazil, that service was invalid, and that Brazil is the appropriate forum under common law forum non conveniens principles. They also dispute the domicile of Cutrale Snr in England and submit that the claims against all Defendants should be stayed in favour of ongoing Brazilian proceedings.
After detailed consideration, the court concluded that it lacks jurisdiction over Sucoc trico Cutrale but has jurisdiction over Cutrale Snr and Cutrale Jnr, and that no stay of proceedings against the latter two is warranted.
Legal Issues Presented
- Whether the court has jurisdiction over Sucoc trico Cutrale based on its alleged domicile in England under Article 63(1)(b) of Brussels Recast Regulation.
- Whether service on Sucoc trico Cutrale within England and Wales was valid pursuant to CPR 6.3(c)/6.9(2).
- Whether the court has jurisdiction over Cutrale Snr based on his domicile in England under Article 4(1) of Brussels Recast.
- Whether the claims against Cutrale Snr and Cutrale Jnr should be stayed in favour of ongoing Brazilian proceedings under Articles 33 and 34 of Brussels Recast and Article 28 of the Lugano Convention.
- Whether the court may assume jurisdiction over Cutrale Jnr under Article 6(1) of the Lugano Convention as a closely connected defendant with Cutrale Snr.
- Whether, on forum non conveniens grounds, the English court should decline jurisdiction in favour of Brazil as the more appropriate forum.
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 |
| Tugushev v Orlov [2019] EWHC 645 (Comm) |
Standard for establishing a good arguable case on jurisdictional gateways and assessing domicile/residence. |
Used to clarify the evidential burden on Claimants to show domicile or residence for jurisdiction. |
| Goldman Sachs International v Novo Banco SA [2018] UKSC 34 |
Definition of "good arguable case" and evidential approach at interlocutory jurisdiction stage. |
Guided the court's approach to assessing the Claimants' evidence on domicile. |
| Kaefer Aislamientos SA v AMS Drilling Mexico SA [2019] EWCA Civ 10 |
Elucidation of the three-limb test for jurisdictional challenges and how courts should deal with evidential gaps. |
Informed the court's pragmatic and common sense approach to the jurisdictional facts. |
| Young v Anglo American South Africa Ltd (No 2) [2014] EWCA Civ 1130 |
Interpretation of "central administration" under Article 63(1)(b) Brussels Recast. |
Primary authority for the court's interpretation of central administration in the context of a company's domicile. |
| Unit Construction v Bullock [1960] AC 351 |
Recognition that a subsidiary's central administration can be usurped by a parent company. |
Considered but distinguished; court rejected that the parent company usurped central administration here. |
| Actiesselskabet Dampskib Hercules v Grand Trunk Pacific Railway Company [1912] 1 KB 222 |
Criteria for when a foreign company is carrying on business in England for service purposes. |
Applied to assess whether Sucoc trico Cutrale carried on business at a fixed place in England. |
| Adams v Cape Industries [1990] Ch 433 |
Principles for determining presence of a foreign corporation carrying on business in England. |
Guided the court's assessment of whether Sucoc trico Cutrale had a fixed place of business in England. |
| Vedanta Resources plc v Lungowe [2020] AC 1045 |
Forum non conveniens principles and the role of an anchor defendant domiciled in England. |
Referenced in submissions on staying claims and the presence of a UK-domiciled anchor defendant. |
| Public Institution for Social Security v Al Rajaan [2020] EWHC 2979 (Comm) |
Principles for applying Article 6(1) Lugano Convention and assessing expediency of hearing claims together. |
Used to assess whether claims against Cutrale Jnr should be heard in England or Brazil. |
| Municipio De Mariana v BHP Group Plc [2020] EWHC 2930 (TCC) |
Meaning of "related actions" and risk of irreconcilable judgments under Brussels Recast Article 34. |
Informed the court's approach to relatedness and expediency of staying proceedings. |
| PJSC Commercial Bank v Kolomoisky [2020] Ch 783 |
Interpretation and exercise of discretion under Articles 28 Lugano and 34 Brussels Recast regarding stays. |
Guided the court's discretion on granting or refusing stays pending foreign proceedings. |
| Easygroup Ltd v Easy Rent a Car Ltd [2019] 1 WLR 4630 |
Factors relevant to the interests of justice and delay in granting stays under Article 34 Brussels Recast. |
Considered in evaluating the risk of delay and interests of justice in deciding whether to stay claims. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of the legal frameworks governing jurisdiction and domicile under Brussels Recast Regulation and the Lugano Convention, as well as the criteria for valid service under CPR rules. It assessed the nature and location of Sucoc trico Cutrale's central administration, considering constitutional documents, witness evidence, and the practical operation of the company.
The court found that the central administration is the place where the company, through its organs, takes essential decisions for its operation. Although the Family Board (composed of family members including the Defendants) has governance and oversight roles, the Executive Board in Brazil manages the majority of essential and entrepreneurial decisions. The Family Board meets at various locations, including Brazil, London, and the US, with no fixed seat in London. The evidence did not support the Claimants' contention that the company's central administration is in London. Accordingly, the court concluded that Sucoc trico Cutrale is domiciled in Brazil, not England.
Regarding service, the court applied established tests from Adams and related cases, finding that the Park Lane Office in London was not a fixed place of business of Sucoc trico Cutrale but rather of Burlingtown UK Limited, a separate company. The activities and meetings held there were occasional and related primarily to internal group matters, not the carrying on of Sucoc trico Cutrale's business. Powers of attorney held by family members did not demonstrate habitual transaction of Sucoc trico Cutrale's business from that office. Thus, service was invalid on this basis.
On domicile, the court applied English law principles, concluding that Cutrale Snr was domiciled in England and Wales at the time the claims were issued. This was based on his residence pattern, substantial connection, declarations of residence in official documents, ownership and use of a family home in London, and family ties. The court rejected the Defendants' argument that his stays in England were insufficient or incidental, noting the quality and settled nature of his residence.
The court further held that the claims against Cutrale Jnr could properly be pursued in England alongside those against Cutrale Snr under Article 6(1) of the Lugano Convention, as the claims were closely connected and expedient to determine together to avoid irreconcilable judgments.
Regarding stays, the court considered the ongoing Brazilian proceedings, notably the Favero and Costa claims, which predated the English proceedings and raised similar cartel allegations. It found these claims related but concluded that it was not expedient or in the interests of justice to stay the English claims pending resolution of the Brazilian claims, given the complexity, procedural delays in Brazil, and the limited overlap of parties and issues, particularly concerning individual liability of the Defendants.
The court also considered the possibility of a forum non conveniens stay in favour of Brazil. While recognizing strong connecting factors pointing to Brazil as the appropriate forum, the court was not persuaded that there was a real risk of denial of substantial justice in Brazil. However, if the issue had arisen, the court would have inclined to stay the proceedings in favour of Brazil, noting the risk of delay but also the strength of the connecting factors.
Ultimately, the court concluded that the Claimants did not have the better argument that Sucoc trico Cutrale was domiciled or had a place of business in England and Wales, but did have the better argument that Cutrale Snr was domiciled in England and that claims against Cutrale Jnr fell within the Lugano Convention jurisdiction. The court refused to stay the claims against Cutrale Snr and Cutrale Jnr but recognized that claims against Sucoc trico Cutrale could not proceed in England.
Holding and Implications
The court's final decision is as follows:
- The court lacks jurisdiction over Sucoc trico Cutrale because it is domiciled in Brazil and does not have a place of business in England and Wales.
- The court has jurisdiction over Cutrale Snr as he is domiciled in England and Wales.
- The court has jurisdiction over Cutrale Jnr under Article 6(1) of the Lugano Convention, as his claims are closely connected with those against Cutrale Snr.
- The claims against Cutrale Snr and Cutrale Jnr will not be stayed in favour of Brazilian proceedings.
- The claims against Sucoc trico Cutrale cannot proceed in England and Wales.
The implications are that the Claimants may pursue their claims against the individual Defendants in England and Wales, but not against the corporate Defendant. The court's decision does not set new precedent but applies established principles to a complex fact pattern involving multinational corporate governance and jurisdictional questions. The ruling underscores the importance of the factual locus of central administration and the strict application of service rules for jurisdiction over foreign companies.