Standard Bank Plc v EFAD Real Estate Company WLL & Ors
2014
COMMERCIAL COURT
United Kingdom
CORAM
- THE HON. MR JUSTICE MALES
Areas of Law
- Civil Procedure
- Contract Law
- Tort Law
2014
COMMERCIAL COURT
United Kingdom
CORAM
AI Generated Summary
The case involves the claimant bank seeking to recover funds advanced to the first defendant under an Islamic finance agreement, also asserting causes of action in breach of contract, deceit, and conspiracy. The second and third defendants challenge the English court's jurisdiction, arguing that the requirements for service out of jurisdiction are unmet. Mr Justice Males held that there is a serious issue to be tried, and that the second and third defendants are necessary and proper parties to the claim against the first defendant. The court deemed England to be the appropriate forum for the trial.
Judgment
Mr Justice Males :
Introduction
This is an application by the second and third defendants (but, subject to one point, not the first defendant) challenging the jurisdiction of the English court. Their challenge arises in an action in which the claimant bank seeks to recover funds advanced to the first defendant pursuant to an Islamic finance agreement. In addition the bank asserts causes of action against the first defendant for breach of contractual obligations relating to the provision of security and in tort for deceit and conspiracy. As against the first defendant the bank has the benefit of a contractual non-exclusive jurisdiction clause which provides for English jurisdiction and the proceedings have been served pursuant to a service of suit clause. The first defendant has not challenged the jurisdiction of the court.
However, the bank seeks also to hold the second and third defendants personally liable in tort for deceit, inducing breach of contract and conspiracy. For this purpose it obtained permission pursuant to CPR 6.36 to serve the proceedings on the second and third defendants in Kuwait and subsequently, when that proved impracticable, leave pursuant to CPR 6.15 to effect service on Latham & Watkins LLP, the solicitors representing all three defendants.
The second and third defendants do not challenge the appropriateness of the order for service on their solicitors, but they do contend that the requirements for service out of the jurisdiction are not satisfied. Those requirements are threefold.
First, the claimant must satisfy the court that in relation to the foreign defendants there is a serious issue to be tried on the merits. This is the same test as for resisting summary judgment, namely whether there is a real (as opposed to fanciful) prospect of success.
Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more of the jurisdictional gateways set out in paragraph 3.1 of CPR PD 6B. This means that the claimant must have much the better of the argument on this point.
Third, the claimant must satisfy the court that in all the circumstances England is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.
On behalf of the second and third defendants Mr Derrick Dale QC submitted that the bank fails to overcome