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

At this point, I shall consider the Agency Issue only insofar as it relates to the Jurisdiction Application.

Ashenden’s argument is, in summary, to the following effect. As is made clear on the homepage on its website and as Jefferies will have known well, Ashenden only acts as an intermediary; it does not trade on its own account and has no positions. In relation to the Trade, it was, in fact, acting for a principal, namely Hyposwiss Private Bank Genève SA (“Hyposwiss”). It notified Jefferies of the identity of its principal on or around 4 July 2023, after the occurrence of the Event of Default and prior to the commencement of these proceedings, in accordance with clause 5.8.1. Therefore, in accordance with clause 5.4, the payment obligation in respect of the Trade was that of Hypowiss alone. This, though amounting to a substantive answer to the claim, is also a jurisdictional point, because it means that, even if clause 29.1 of the Terms of Business was incorporated into the contract, it does not apply to the claim against Ashenden, which is not a claim under the contract, and there is no serious issue to be tried.

In response, Jefferies contends that, if the Terms of Business applied to the Trade, the claim falls within the scope of an exclusive English jurisdiction clause, and any issue regarding merits is properly to be considered in the substantive proceedings and not as a jurisdiction challenge. In my judgment, Jefferies’ contention on this point is correct. The claim in the claim form, whether or not it is well-founded, is a claim in respect of a contract that contains (or which there is a good arguable case contains) a provision giving the courts of England and Wales exclusive jurisdiction to determine that claim. However, the Agency Issue requires more detailed consideration in the context of the Strike-out Application.