MEX Group Worldwide LTD against Stewart Owen Ford & Others (Court of Session)

Factual and Procedural Background

The Plaintiff, Company A, initiated a commercial action alleging that all Defendants engaged in an unlawful means conspiracy aimed at injuring its interests. This conspiracy purportedly caused the eleventh Defendant, Company B, to seek to renege on a lawful and binding agreement recorded in a Consent Order granted by the High Court of Justice of the British Virgin Islands dated 14 December 2020. The Plaintiff claims losses amounting to £85 million, primarily resulting from the failure of a planned bond issue attributed to the Defendants' actions. Some Defendants, not domiciled in The State, challenged the jurisdiction of the court. A hearing was fixed to determine jurisdictional pleas and issues of relevancy or specification, supported by affidavit evidence from representatives of the Plaintiff and certain Defendants.

Legal Issues Presented

1. Whether the court has jurisdiction over the third and eighth Defendants, who are not domiciled in The State, under paragraph 2(o)(i) of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982.
2. Whether the claims against the third and eighth Defendants are so closely connected with those against Defendants domiciled in The State that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments.
3. Whether the court should decline jurisdiction based on the plea of forum non conveniens, with alternative forums suggested as the British Virgin Islands or Luxembourg.
4. Whether the court has jurisdiction to entertain claims relating to the Deed of Affirmation between the Plaintiff and the ninth Defendant, given its exclusive jurisdiction clause prorogating jurisdiction to the courts of Luxembourg and/or Germany.
5. Whether the court should exclude from probation certain averments relating to the Deed of Affirmation based on the prorogation agreement.

Arguments of the Parties

Eighth Defendant's Arguments

• Jurisdiction asserted solely on the basis of paragraph 2(o)(i) of Schedule 8 to the 1982 Act.
• The claim against the eighth Defendant is not closely connected with claims against Defendants domiciled in The State to justify joint determination.
• The Plaintiff's pleadings do not support a claim that the eighth Defendant participated in the alleged conspiracy; it is described as a mere conduit.
• Therefore, no real risk of irreconcilable judgments exists, and jurisdiction over the eighth Defendant should be dismissed.

Ninth Defendant's Arguments

• The court lacks jurisdiction to hear claims based on or relating to the Deed of Affirmation due to an exclusive jurisdiction clause prorogating jurisdiction to Luxembourg and/or Germany.
• The prorogation clause excludes jurisdiction of other courts under EU law as it applied prior to IP completion day.
• The Plaintiff's averments relating to the Deed are irrelevant and should be excluded from probation.
• Even if the prorogation clause applies, the court has discretion not to give effect to it, but no strong reasons exist to depart from it in this case.

Third Defendant's Arguments

• The third Defendant is not domiciled in The State and denies involvement in any conspiracy.
• The claims against non-domiciled Defendants, including himself, are not so closely connected with claims against domiciled Defendants to justify joint hearing.
• Scotland is forum non conveniens for the dispute; the British Virgin Islands is a more appropriate forum.
• Proceedings in the British Virgin Islands address the validity of the Consent Order, which is a prior and distinct question.
• Luxembourg, as his domicile, is a more appropriate forum than The State.
• The court should dismiss the action against him for lack of jurisdiction.

Plaintiff's Arguments

• Jurisdiction over the third and eighth Defendants is asserted solely under paragraph 2(o)(i) of Schedule 8 to the 1982 Act.
• The first, second, fifth, sixth, and seventh Defendants are domiciled in The State and accept jurisdiction, serving as "anchor Defendants".
• The claims against the third and eighth Defendants are closely connected with those against the domiciled Defendants, as all are alleged co-conspirators.
• There is a real and substantial risk of irreconcilable judgments if claims are heard separately in different jurisdictions.
• It is expedient to hear all claims together in The State to avoid such risks and for judicial economy.
• The plea of forum non conveniens by the third Defendant should be rejected as neither the British Virgin Islands nor Luxembourg is clearly more appropriate than The State.
• The prorogation clause in the Deed of Affirmation does not exclude jurisdiction over the conspiracy claims, and averments relating to the Deed should not be excluded from probation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kuwait Oil Tanker SAK v Al-Bader (No 3) [2000] 2 All ER (Comm) 271	Definition of the tort of conspiracy to injure by unlawful means.	Used to assess whether the eighth Defendant's role as conduit could ground liability for conspiracy.
Freeport Plc v Arnoldsson (C-98/06) [2007] ECR I-8319	Requirement for claims to be closely connected for jurisdiction under paragraph 2(o)(i) of Schedule 8; no need for identical legal bases.	Applied to determine whether claims against eighth Defendant were sufficiently connected to warrant jurisdiction.
Roche Nederland BV v Primus (Case C-539/03) [2006] ECR I-6535	Risk of irreconcilable judgments must arise in the context of the same situation of law and fact.	Considered in assessing the risk posed by separate proceedings against the eighth Defendant.
Fiona Trust and Holding Corporation v Privalov [2007] UKHL 40	Liberal construction of arbitration and jurisdiction clauses to promote legal certainty and avoid multiplicity of proceedings.	Guided interpretation of the prorogation clause in the Deed of Affirmation excluding jurisdiction of the court over certain claims.
Advocate General for Scotland v Murray Group Holdings Ltd [2015] CSIH 77	Judicial knowledge and interpretation of foreign law and EU law as part of Scots law prior to IP completion day.	Supported acceptance of evidence relating to German law and EU instruments governing jurisdiction clauses.
FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45	Judicial approach to foreign law and EU law principles.	Supported court's approach to jurisdiction and prorogation clauses involving EU member states.
Compagnie Commercial Andre SA v Artibell Shipping Co Ltd 1999 SLT 1051	Assessment of close connection and expediency for jurisdiction under paragraph 2(o)(i) of Schedule 8.	Provided framework for evaluating whether claims against non-domiciled Defendants were closely connected to those against domiciled Defendants.
Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32	Broad commonsense approach to assessing risk of irreconcilable judgments and expediency.	Applied to support jurisdiction over third and eighth Defendants as co-conspirators.
Evans Marshall & Co Ltd v Bertola SA and Another (No 1) [1973] 1 WLR 349	Consideration of conspiracy allegations in jurisdictional context and effect on exclusive jurisdiction clauses.	Analogously cited to support hearing all co-conspirators together to avoid irreconcilable judgments.
Donohue v Armco Inc [2001] UKHL 64	Weight to be given to risk of irreconcilable judgments and multiplicity of proceedings in jurisdictional decisions.	Supported rejection of forum non conveniens plea and importance of single forum for conspiracy claims.
Royal Bank of Scotland plc v Davidson [2009] CSOH 134	Test for forum non conveniens: foreign court must be clearly more appropriate.	Applied in rejecting plea of forum non conveniens by third Defendant.
Al-Aggad v Al-Aggad [2024] EWHC 673 (Comm)	Importance of avoiding multiplicity of proceedings and irreconcilable judgments in conspiracy claims.	Referenced in rejecting forum non conveniens plea and emphasizing the need for single forum adjudication.
Lakatamia Shipping Co Ltd v Su [2023] EWHC 1874 (Comm)	Risks of irreconcilable judgments and inefficiencies from parallel proceedings in conspiracy claims.	Applied to support jurisdiction in The State and reject alternative forums.
Sea Master Special Maritime Enterprise v Arab Bank (Switzerland) Ltd [2022] EWHC 1953 (Comm)	Limitations on jurisdiction clauses and their application in multi-faceted disputes.	Considered in determining scope of prorogation clause in relation to conspiracy claims.
The Eleftheria [1970] P 94	Factors relevant to exercise of discretion on jurisdiction clauses.	Referenced in assessing discretion to depart from prorogation agreement.
Ashville Investments Ltd v Elmer Contractors Ltd [1989] QB 488	Reluctance to attribute intention for multiple proceedings in different forums.	Supported reasoning on liberal interpretation of jurisdiction and arbitration clauses.

Court's Reasoning and Analysis

The court began by emphasizing that its jurisdictional determination must be based solely on the pleadings without presuming their truth at proof. The key question was whether the court had jurisdiction to hear the case as pleaded.

Regarding the eighth Defendant, the court noted that although the Defendant was described as a vehicle or conduit rather than an active wrongdoer, liability for conspiracy does not depend on each conspirator's active wrongdoing but on participation in the combination with the purpose of unlawful action. Therefore, it was not inconceivable that evidence could establish the eighth Defendant as a participant, justifying jurisdiction under paragraph 2(o)(i) of Schedule 8.

The court applied established principles from Compagnie Commercial Andre SA and Sarrio SA, recognizing that claims against co-conspirators are paradigmatic examples of closely connected claims warranting joint determination to avoid irreconcilable judgments. It concluded that jurisdiction was properly established over the third and eighth Defendants on this basis.

On the plea of forum non conveniens, the court applied the test that a foreign forum must be clearly more appropriate. It found that neither the British Virgin Islands nor Luxembourg was clearly more appropriate than The State, given the limited connections and the risk of multiplicity and irreconcilable judgments if jurisdiction were declined. The court rejected the plea accordingly.

Concerning the ninth Defendant and the Deed of Affirmation, the court recognized the validity and exclusivity of the prorogation clause conferring jurisdiction on the courts of Luxembourg and/or Germany for disputes arising out of or in connection with the Deed. The court held that claims directly relating to breaches of the Deed fell within this clause and must be excluded from probation in this court. However, the broader conspiracy claims, which were not founded on the Deed itself but used it as background context, did not fall within the prorogation clause's scope.

The court rejected any common law discretion to refuse effect to a prorogation clause complying with statutory requirements in this context.

In conclusion, the court sustained the jurisdictional pleas of the ninth Defendant to exclude certain averments related to the Deed but rejected jurisdictional challenges by the third and eighth Defendants and the plea of forum non conveniens.

Holding and Implications

The court's final decision was as follows:

• The court has jurisdiction over the third and eighth Defendants under paragraph 2(o)(i) of Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, as their claims are closely connected with those against Defendants domiciled in The State, and it is expedient to hear them together to avoid irreconcilable judgments.
• The plea of forum non conveniens by the third Defendant is rejected, as neither the British Virgin Islands nor Luxembourg is clearly more appropriate than The State for adjudicating the dispute.
• The prorogation clause in the Deed of Affirmation excludes jurisdiction of this court over claims arising out of or in connection with the Deed, and averments relating to such claims against the ninth Defendant are refused probation.
• The court rejects any common law discretion to refuse effect to a valid prorogation clause in this statutory context.

The direct effect is that the case against the third and eighth Defendants will proceed in The State, while certain claims relating to the Deed of Affirmation against the ninth Defendant are excluded. No new legal precedent is established; the decision applies established principles of jurisdiction, prorogation agreements, and forum non conveniens in the context of multi-party conspiracy claims.