[2025] EWHC 2089 (Comm)

The Charterers rely on CPR rule 6.33(2B) in support of the English Court exercising jurisdiction in this case. As Ms Barthet noted at para. 24 of her first statement, CPR rule 6.33(2B) allows a claimant to serve the claim form out of the jurisdiction without the necessity of obtaining permission from the Court.

CPR rule 6.33(2B) provides as follows:

“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)”

The “contract” referred to in CPR rule 6.33(2B)(b) must be one by which the defendant is bound. In IBM United Kingdom Limited v LZLabs GmbH [2022] EWHC 2094 (TCC), Waksman J said at para. 133 in respect of this rule:

“In other words, if sub-paragraph (b) is to apply, the foreign defendant against whom it is invoked still needs to be bound by the clause just as much as in sub-paragraph (a). If it were otherwise, it would mean that any exclusive jurisdiction clause which purported to cover the activities of those who were not bound by it would be sufficient to found jurisdiction, provided only that its scope was wide enough to encompass them. That would be very odd indeed. It would mean that if the claimant here wished to sue a foreign defendant in this jurisdiction in relation, somehow, to a contract (including an exclusive jurisdiction clause) to which he was not party, the existence of that clause would be prima facie sufficient. Of course, the claimant might have another route to jurisdiction, through one of the PD 6B gateways (just as Winsopia says here, in the alternative) but that is another matter.”

This makes sense because a contractual term endowing the Court with jurisdiction can only be relevant if the claimant and the defendant are a party to that contract, i.e. the claimant is contractually entitled to assert that the defendant must submit to the English Court’s jurisdiction and the defendant is contractually obliged so to submit.

On the face of it, it may be difficult to discern what role and function CPR rule 6.33(2B)(c), which was introduced in October 2022, was intended to achieve. Sub-rule (b) relates to a claim where a contract endows the English Court with jurisdiction. Sub-rule (c) relates to a claim “in respect of” of a contract which endows the English Court with jurisdiction. It would be an odd state of affairs if this sub-rule was sufficient to allow a claimant to serve proceedings against a defendant who was not bound by the terms of the relevant contract, merely because the claim related to such a contract which happened to include an English jurisdiction agreement.

Looking at the origins of sub-rule (c), it appears from paragraph 62 of the Minutes of the Civil Procedure Rule Committee dated 13th May 2022 that sub-rule (c) was introduced to address a particular scenario where a defendant is asserting reliance on a contract, for example as an assignee or pursuant to a direct action statute and where the claimant disputes that there is a binding contract, but nevertheless wishes to hold the defendant to the jurisdiction agreement in the contract insofar as the defendant seeks to assert rights under that contract or to start proceedings in relation to the contract other than in accordance with the jurisdiction agreement (a so-called “quasi-contractual” case: QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm); [2022] 2 Lloyd's Rep 481, para. 13).

Paragraph 62 of the Minutes of the Civil Procedure Rule Committee dated 13th May 2022 records that:

“However, it has been pointed out that the differing terms of the old gateway (6)(d) and CPR 6.33(B) may have opened up a potential lacuna. This is because the revised wording does not naturally lend itself to the case where the claimant does not contend that the defendant is party to the contract, and the injunction is sought on the basis that if the defendant wishes to assert it is, it must comply with the English jurisdiction clause. To address this issue, it is proposed to amend CPR 6.33(2B) to add in a new sub-rule (c) for clarificatory purposes and this was AGREED.”

I was also referred to an editorial comment in the White Book, at para. 6.33.4.1, which interprets sub-rule (c) in accordance with the Minutes. The editorial comment refers to a decision of Foxton J to like effect in QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm); [2022] 2 Lloyd's Rep 481, para. 22. More recently, Foxton J commented again on this issue in JP Morgan International Finance Ltd v Werealize.Com Limited [2025] EWHC 1842 (Comm), at para. 157-161:

“157.

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).”

158.

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’ ….”

159.

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.

160.

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.

161.

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.”

Mr Wright KC, on behalf of Middle Volga, submitted that the Charterers are not permitted to rely on CPR rule 6.33(2B)(b) or (c) to secure jurisdiction in the present case, because:

I accept these submissions. It seems to me that the grounds of jurisdiction allowed under CPR rule 6.33(2B)(b) and (c) are limited to cases where:

I do not consider that these sub-rules may be relied on by a claimant merely because the claim relates to or is “in respect of” a contract in circumstances where there is no good arguable case that the defendant is a party and subject to the contract or where the defendant is itself not relying on the contract. I do not consider that CPR rule 6.33(2B)(c) should be construed so broadly so as to permit service of a claim form on a defendant without the Court’s permission where the defendant had not contractually obliged itself to submit a dispute to the jurisdiction of the English Court or had not chosen to rely on any rights it might have under such a contract.