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

The Directors purported to serve their Part 8 Claim Form on the agent for service in England and Wales appointed by JPM under the SHA. In this connection, the Directors relied upon CPR 6.11(1), which permits service by a contractually agreed method of claims solely in respect of the relevant contract.

I accept JPM’s submission that this method of service was invalid. I am satisfied that on its proper construction, clause 43 of the SHA provides for JPM to appoint an agent for service of claims brought by other parties to the SHA and that the Directors are not parties for this purpose. Clause 43 is clearly intended to reflect a mutual obligation (clause 42.6) and the Directors have not and are not required to appoint agents for service themselves. Nor are the Directors able to enforce clause 43 under the 1999 Act, given the terms of clause 38.6 of the SHA, and the fact that clause 43 neither provides that the Directors are entitled to enforce it, nor purports to confer a benefit on the Directors.

That clear language of clause 43 is consistent with the authorities which make it clear that a contractual agreement to appoint an agent for service will normally only extend to service by a contracting party, its successors and assigns (Argo Capital Investors Fund SPC v Essar Steel Ltd [2005] EWHC 2587 (Comm), [26] and see also Morgan Stanley & Co International plc v China Haisheng Juice Holdings Co Ltd [2009] EWHC 2409 (Comm), [23(ii)]).

The Directors also served JPM in Delaware on 11 March 2025, without leave under CPR 6.33(2B)(c), alternatively, by way of a retrospective application for permission to serve out of the jurisdiction in reliance upon various of the Practice Direction 6B gateways. Commendably, JPM has met these points on the merits rather than taking a stand on the technical service issue which could have been cured if necessary.