No anti-suit although HK claims breach jurisdiction clause

Team Y&R Holdings v Ghossoub [2017] EWHC 2401 (Comm) is an interesting treatment of parallel proceedings. The exclusive jurisdiction clause was read to fulfil its purpose: the substance not the form of allegedly wrongful Hong Kong proceedings was important and third parties were not bound.  However, despite Mr Ghossoub being in breach of the jurisdiction clause, no anti-suit injunction was granted against him.  The decision should give parties pause for thought when drafting jurisdiction clauses and starting or resisting parallel proceedings. Chaos or at least inconvenience might be unavoidable without a clearly drafted jurisdiction clause. It also offers guidance on how to write a jurisdiction clause which bites on non-contracting parties.

The origin of the dispute

The case arose from a sale and purchase agreement (“SPA”) for the shares of Team Y&R Holdings (“TYRH”) and a service agreement (“SA”) between Mr Ghossoub and TYRH.  The SPA contained an exclusive jurisdiction clause as follows (the SA clause was less detailed).

“The English courts have exclusive jurisdiction to settle any dispute arising out of or in connection with this agreement and the parties submit to the exclusive jurisdiction of the English Courts.” Continue reading

Failure to follow service rules is the end of a claim

In Asefa Yesuf Import and Export v A.P. Moller-Maersk A/S (16 June 2016) Simon Bryan QC (as a Deputy Judge of the High Court) made an important decision on service under EU rules.  I was instructed for the successful defendants.

The Judge set aside service of a claim form on defendant shipowners in Denmark on the basis that the proceedings had not been validly served under EU Regulation 1393/2007 on service of judicial documents on the territories of the Member States.

Although service did not establish substantive jurisdiction in this case, which was based on the Judgments Regulation, the failure to serve the claim form led the court to declare that it had no jurisdiction (in the narrow sense) to hear the case under CPR Part 11. The consequence for the claimants was that they had to issue a new claim form.  Unfortunately for the claimants, by this time, their claims had been extinguished under the one-year time bar in the contracts of carriage on which they wished to sue. Continue reading

Informal step in English proceedings allowed a European Enforcement Order to be made

Chachani Misti v (1) Hostplanet Ltd & (2) Finn Grimpe [2016] EWHC 983 (Ch), decided on 29 April 2016, should be carefully noted by defendants seeking to avoid enforcement of a judgment.  It also demonstrates the potential difficulties in obtaining a European Enforcement Order (“EEO”) if service has been by email. Continue reading

Strict approach to the retrospective cure under CPR 6.15 of defective service

The court’s power in CPR 6.15 to allow service by an alternative means can be used retrospectively to validate steps taken to serve proceedings on foreign defendants where those steps fall short of ‘good service’ under the CPR.  The power is of particular significance in common law (rather than Brussels / Lugano cases) because the act of service founds jurisdiction.

This post considers two recent cases on CPR 6.15: Barton v Wright Hassall LLP [2016] EWCA Civ 177 and Abbott v Econowall UK Ltd [2016] EWHC 660 (IPEC).  They demonstrate that the court will adopt a strict approach to retrospective cure of defective service although a defendant’s conduct may form part of the reason to permit cure. Continue reading