CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

I have concluded that the Directors have a right under an agreement governed by English law (viz the Clause 33 Contract) not to be sued in a jurisdiction which would not give effect to clause 33.1(c). There is an undeniable gateway for such a claim in CPR PD 6B paragraph 3.1(6)(c) (“a claim is made in respect of a contract where the contract … is governed by the law of England and Wales”). I am satisfied that England and Wales is the appropriate forum for the pursuit of such a claim. Indeed it is the only forum, because of the agreed evidence that Greek law will not give effect to clause 33.1(c), and because the contractual promise which the Directors seek to enforce is a promise (in effect) not to be sued in Greece, the only other forum canvassed. Accordingly, I am satisfied that I should give permission to serve out on this ground, no point being taken as to the retrospective nature of such permission.

The jurisdiction analysis could end at this point, but given the inevitability of the case going further, I should cover at least some of the points raised.

Under the present heading, an issue arises as to whether the Directors were entitled to serve without permission under CPR 6.33(2B) which provides:

“The claimant may serve the claim form on the defendant outside of 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).”

It is fair to say that this provision has something of a convoluted history, and that I have contributed to its convolution. CPR 6.33(2B) was brought into force with effect from 1 October 2015 following the coming into force of the Hague Convention 2005. At that stage, it provided:

“The claimant may serve the claim form on the defendant outside of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under the 2005 Hague Convention, and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the Hague Convention.”

At that point, Practice Direction 6B para. 3.1(6) still included, at (d), a discretionary service out gateway “where a claim is made in respect of a contract where the contract … contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of that contract.”

With effect from 6 April 2021, CPR 6.33(2B) was amended to provide:

“The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form:

(a)

the court has power to determine that claim under the 2005 Hague Convention, and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention; or

(b)

a contract contains a term to the effect that the court shall have jurisdiction to determine that claim.”

At this point, PD 6B para. 3.1(6) was amended to remove (d). The result was that there was the ability to serve out without permission where there was an applicable jurisdiction agreement (that agreement obviating the need for the discretionary and forum conveniens analysis for discretionary gateways). However, where this was not the case, the mere fact that a claim was “with respect to” a contract with an EJC, even though that EJC was not applicable to the claim, could no longer be the basis for an application for discretionary service out (assuming that such a claim would otherwise have fallen within the relevant discretionary gateway).

The Civil Procedure (Amendment No. 2) Rules 2022 effected further amendments to CPR 6.33(2B), to give effect to the recommendations of a service sub-committee of the Civil Procedure Rules Committee of which I was a member, to add the new “(c)” quoted at [152] above. I explained the background to that change in QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm), [22]:

“Finally, it may be relevant to note that the fact that proceedings have been brought for ASI relief by reference to a contract to which either the applicant, the respondent, or both are said not to be parties also has the potential to raise issues as to the proper basis for serving applications for such relief out of the jurisdiction. In order to remove any scope for doubt on this issue so far as claims to enforce exclusive jurisdiction clauses are concerned, the Civil Procedure Rules Committee has approved an amendment to CPR 6.33(2B) to provide that a claimant may serve a claim form on a defendant outside the jurisdiction where ‘for each claim made against the defendant to be served and included in the claim form … the claim is in respect of a contract’ which ‘contains a term to the effect that the court shall have jurisdiction to determine the claim’ (on the basis that the width of the words ‘in respect of’ will address any issues which might otherwise arise from the quasi-contractual nature of such ASI applications).”

It is possible, however, that the rule change may (unintentionally) have done more than that, because the language “in respect of” might not simply have restored the effect of the deleted discretionary gateway para. 3.1(6)(d), but promoted it to a non-discretionary gateway. This is a point perceptively made by the editors of Civil Procedure (2025) who note at [6.33.4.1]:

“The new r.6.33(2B)(c) also appears to have the effect that a claim form can be served out of the jurisdiction without the court’s permission not merely where the claim falls within a jurisdiction clause in the contract (or, as appears to be intended, would do so if the claimant and defendant were both parties to that contract) but also where the claim is ‘in respect of’ a contract containing such a clause. This could be interpreted to apply more broadly than to claims seeking an anti-suit injunction given the breadth of the phrase ‘in respect of’ ….”

The sub-committee of the Civil Procedure Rules Committee’s report of 4 May 2022 placed the proposed amendment to CPR 6.33(2B) in the context of (and by way of a reversal of) the earlier deletion of PD 6B para. 3.1(6)(d), and to that extent provides some support for the expanded reading referred to by the editors of Civil Procedure. However, it is fair to say that in including the new paragraph (c) in CPR 6.33(2B), the sub-committee’s focus was very much on claims which would be subject to the EJC, even if not on a contractual basis. That interpretation fits better with sub-paragraphs (a) and (b), and with the fact that the usual protections of the discretionary service out gateway are not available because an agreed forum clause is being given effect (even if on a quasi-contractual rather than contractual basis). If the amendment has gone further than that, the fact that it appears in a provision which permits service without leave and without the discretionary protections of PD 6B will be a relevant factor when testing the connection between the claim and the contract containing the EJC.

In this case, the Directors’ position is that they are parties to a contract – the Clause 33 Contract – which on my findings does not contain an EJC, but which is constituted by a clause appearing in a wider contract to which the Directors are not parties and which does contain an EJC. I am not persuaded that this is a sufficient connection to meet the “in respect of” requirements of CPR 6.33(2B)(c), and accordingly I conclude that the Directors were not entitled to serve their Part 8 Claim Form without the leave of the court, albeit that such leave has now been given.

Had the Directors been entitled to contractual anti-suit injunctions as parties to clause 42, or as third parties able to enforce clause 42 under the 1999 Act, then I accept that the Directors would have been entitled to serve those proceedings out of the jurisdiction without permission under CPR 6.33(2B), as well as with permission under PD 6B para. 3.1(6)(c). That would also have been the case had I accepted the argument that the Directors were entitled to ASI relief on the quasi-contractual basis, on the ground that the Greek Proceedings were in substance asserting contractual claims under the SHA.