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

Jefferies effected service out of the jurisdiction, without permission, in reliance on CPR r. 6.33(2B), which in relevant part provides as follows:

“(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form—

…

(b)

a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or

(c)

the claim is in respect of a contract falling within sub-paragraph (b).”

“The relevant question is whether there is a good arguable case that there is a contract containing a term that the English court has jurisdiction to determine the claim and that the dispute falls within the scope of the jurisdiction agreement”: Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB) at para 15(i) (Master Stevens).

In Goldman Sachs International v Novo Banco SA [2018] UKSC 34, [2018] 1 WLR 3683, Lord Sumption, with whom the other Justices agreed, said at para 9:

“For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had ‘the better of the argument’ on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows:

‘… (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.’

It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced.”

Jefferies contends that sub-paragraph (b) or sub-paragraph (c) of r. 6.33(2B) applies because the contract between the parties incorporated its Terms of Business, which contained an exclusive jurisdiction provision in clause 29.1. Ashenden’s primary challenge to jurisdiction rests on the contention that the Terms of Business were never incorporated into the contract: this is the Incorporation Issue.