LM-2024-000238 - [2025] EWHC 1441 (Comm)

The claimant (“Jefferies”) is a company incorporated in England and Wales. It is authorised and regulated by the Financial Conduct Authority and is the main UK trading subsidiary of Jefferies Financial Group Inc, an investment banking and capital markets firm based in the United States of America. The defendant (“Ashenden”) is a financial institution incorporated in Switzerland. The two companies have been conducting trades with each other since 2015; between 2015 and 2019 they conducted more than 500 trades.

In these proceedings, Jefferies claims from Ashenden US$619,222.22 as the price payable by Ashenden for its purchase of interests in certain Perpetual Tier 1 Contingent Write Down Capital Notes (“the Notes”) issued by Credit Suisse AG (“the Trade”). The Trade took place on 16 March 2023. Settlement was due on 20 March 2023. On 19 March 2023 UBS Group AG agreed to acquire Credit Suisse AG. In contemplation of that acquisition, on 19 March 2023 the Swiss regulator declared that a Write-Down Event had occurred, with the result that the Notes were cancelled immediately and that Jefferies was unable to deliver or transfer any interest in the Notes. Jefferies’ case is that, by agreeing to purchase the Notes, Ashenden accepted and agreed to bear the risk that a Write-Down Event would occur and that the Notes would be cancelled, and that Ashenden is therefore liable to pay the price.

Jefferies commenced the proceedings on 12 September 2024 and served the claim form and particulars of claim on Ashenden out of the jurisdiction in Switzerland.

The following applications have been made:

The central issue on the Jurisdiction Application is whether Jefferies’ Terms of Business, which contain an exclusive jurisdiction clause, were incorporated into the contract for the Trade: this is “the Incorporation Issue”. The central issue on the Strike-out Application is whether Ashenden has obligations under the contract as principal or, rather, was acting only as agent or intermediary for another principal: this is “the Agency Issue”. (I should note here that Ashenden also argues that the correct conclusion on the Agency Issue provides another basis for holding that this court has no jurisdiction.) The Amendment Application is largely dependent on the other two applications, but it also raises a discrete issue concerning construction of the Terms of Business: this is “the Construction Issue”.

Ashenden relies on four witness statements of Benjamin James Sigler, a solicitor and a partner in Stephenson Harwood LLP, who has conduct of the proceedings on behalf of Ashenden. In response, Jefferies relies on two witness statements of Christopher Anthony Bushell, a solicitor and partner in Herbert Smith Freehills Kramer LLP, who has conduct of the proceedings on behalf of Jefferies.

In the remainder of this judgment, I shall proceed as follows. First, I shall set out the most relevant provisions of the Terms of Business, which Jefferies says were incorporated into the contract for the Trade. Second, I shall consider the Jurisdiction Application: in that context, I shall address the Incorporation Issue; I shall also address the Agency Issue insofar as it bears on the Jurisdiction Application. Third, I shall consider the Strike-out Application, which turns on the Agency Issue. Fourth, I shall consider the Amendment Application.

I am grateful to Mr Phipps, counsel for Jefferies, and Mr Mukherjee, counsel for Ashenden, for their rigorous and helpful submissions.