Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc
2014
CHANCERY DIVISION
United Kingdom
CORAM
- MR JUSTICE MANN
Areas of Law
- Commercial Law
- Contract Law
- Conflict of Laws
2014
CHANCERY DIVISION
United Kingdom
CORAM
AI Generated Summary
Intergraph sought to set aside an order allowing Fern to serve out of jurisdiction concerning claims under the Commercial Agents (Council Directive) Regulations 1993. Despite a Texan law clause, the court held English jurisdiction as necessary for EU Regulation claims and ordered the unpaid commission claim to be heard in Texas. The decision implied that mandatory EU provisions could not be evaded by contract clauses.
This is an application by the defendant (”Intergraph”) to set aside an order giving permission to the claimant (”Fern”) to serve out of the jurisdiction, made by Master Bragge on 29th October 2013. The main claim is based on The Commercial Agents (Council Directive) Regulations 1993 (”the Regulations”), but there is a lesser claim for unpaid commission. Permission to serve out of the jurisdiction (in Texas) was sought on the basis that the contract was governed by English law, and/or that the contract was breached within the jurisdiction. This is notwithstanding that the contract contains an apparently clear Texas law and Texas jurisdiction clause. Thus the application raises the tensions that arise between such clauses and the Regulations, and other associated questions. The application raises a wide variety of points as to whether or not Fern can pass through a service out gateway and, if it can, as to the merits of the claim.
Mr Jasbir Dhillon QC appeared for the defendant, and Mr Philip Moser QC appeared for the claimant.
The agreements and underlying facts
Intergraph and its corporate predecessor COADE Inc (both Texas-based companies) were the owners and or licensees of certain software products. It is unnecessary to distinguish between those two Texas companies for the purposes of this application. Since 1993 Fern has acted as their agent for selling those products. (There is a dispute in this case as to whether Fern was “selling” anything as opposed to procuring a licence. In this narrative I use the word “sale” and its derivatives without pre-judging that issue). The only agreement which has hitherto been produced as regulating that arrangement is an agreement dated 21st December 2007, and all the debate in this case centred around the effect of that document. Under it Fern was appointed to be a “partner” to solicit orders for the software throughout Europe. Any successful orders resulted in a licence which operated directly between Intergraph and the purchaser/customer. Fern was entitled to commission, and it was to collect the fees paid by end users, deduct its commission and pass the balance to Intergraph. This is the agreement with the Texas law and Texas jurisdiction clause in it.
In a little more detail the relevant clauses of the agreement were as follows. In the agreement Fern is described as “CGNP”.
There are four recitals the first of which reads:
“WHEREAS COADE, Inc is the owner or licensee of the software products described in Exh