CL-2024-000082 - [2025] EWHC 2292 (Comm)

This is the hearing of separate applications brought by the first and second defendants to set aside the claim form insofar as it asserts claims against them and/or to set aside service and/or to set aside one or more of three separate extensions of time granted for service of the claim form and for the court to declare that it has no jurisdiction over them. I do not rehearse the procedural history of the matter which is set out in the skeleton arguments and as to which there is no material dispute.

On 29 August, the claimants issued their own application to amend the claim form to “clarify the basis of their claim,” but in reality to assert a claim on an entirely different basis and to abandon the existing basis of claim at least as against the first defendant. That application has not been listed to be heard today and the claimants do not seek further adjournment of the defendant’s application so that they can be heard together. Indeed, it is difficult to see how they could properly do so in the light of Bright J’s comments at the end of July that the jurisdiction challenges should be heard today “come hell or high water.”

Nonetheless, the claimants invite me to determine their application, or at the very least to examine the merits and find that it is sufficiently meritorious to justify refusing the jurisdiction challenges. For their part, the defendants say that there is no merit even in the amended claim and that it is so weak that it can safely be dismissed here and now. On any view, they say it would be wholly unfair and unjust for me to determine the application against them given its late service and the lack of opportunity to put in evidence in response. They say that this is but the latest chapter in a history of attempts by the claimants to delay and derail the jurisdiction challenges. They invite me, therefore, simply to proceed with their applications and to ignore the amendment application altogether in so doing.

In these circumstances, it seems to me that the following principle matters fall to be addressed. First, whether service can stand on the basis of the claims as originally pleaded against each of the first and second defendants. Secondly, if I take the view that it cannot, whether the amendment application should nonetheless deter me from actually setting service aside.

I start with the original basis of claim, for which purpose I ignore the putative amendment altogether. As to the relevant principles, there is no dispute that the claimants bear the burden of showing in respect of each defendant a good arguable case that the claim asserted against that defendant falls within CPR Part 6.33(2B). It is also common ground that the test is that recently set out in Pantheon International Advisors Ltd v Co-Diagnostics Inc [2023] EWHC 1984 (KB), namely whether there is a plausible evidential basis for the application of the relevant gateway, and that where there is a dispute as to this, the claimant must have the better of the argument.

Whilst deceptively simple on first reading, I have to confess that I do not find Part 6.33(2B) altogether easy to construe. I am comforted by the fact that other judges have not found it entirely straightforward either. It raises three particularly thorny issues: first, whether the defendant has to be a party to the contract referred to in subparagraphs (b) and (c); secondly, whether the claimant has to be a party to that contract; and thirdly, the precise degree of connection denoted by the words “in respect of” between the claim asserted by the claimant against the intended defendant and the contract containing the jurisdiction clause.

In common with most other judges who have had to consider this matter, I take the view that for the purposes of both subparagraphs (b) and (c), the intended defendant must be a party to the contract containing the jurisdiction clause. Like Bright J in Magomedov v TPG Group Holdings [2025] EWHC 59 (Comm), I find the views of Tomlinson LJ in Alliance Bank JSC v Aquanta Corp [2012] EWCA Civ 1588 compelling. I accept the submission of Mr Head KC for the second defendant that it is dangerous to draw too close an analogy between authorities on Practice Direction 6, para.3.1 and Part 6.33(2B); the former governing cases where permission to serve out in the jurisdiction is required, and the latter of course governing cases where no such permission is necessary.

But in this respect, it seems to me that part 6.33(2B) is an a fortiori case. Tomlinson LJ in Aquanta considered it implicit in para.3.1(6) of the practice direction that the intended defendant should be bound by the jurisdiction agreement. It seems to me that his reasoning applies with all the more force where Part 6.33(2B) as a whole is concerned with cases where permission is not required and where it can only be assumed that this is because the defendant has voluntarily bound itself to English jurisdiction by agreement. It therefore seems to me that the better view is that the defendant must be a party to the contract containing the jurisdiction clause or, at the very least, bound by it. I note that this was also the view of Waksman LJ in IBM v LzLabs [2022] EWHC 2094 (TCC).

A more vexed question is whether the claimant has to be party to the same agreement, bearing always in mind that the contract must – on the express provisions of Part 6.33(2B) – be one which contains a term that the English court has jurisdiction to determine “the claim” asserted by the claimant against the defendant.

The short answer to this question is no, since there are plainly circumstances in which a claimant can properly bring a claim falling within subparagraph (b) without itself being party to the contract containing the jurisdiction clause. Thus, while the subparagraph primarily covers claims asserted by the claimant as the defendant’s contractual counterparty, it is not a huge step to say that it also covers claims brought by a claimant who assert the rights of that counterparty, for example, as assignee or successor in title, and possibly even pursuant to a derivative claim, although that is open to debate and contentious in this case. Whether it goes further than that is unclear, although in the event, I have found it unnecessary to reach a decision on the point.

Finally, there is the question of the meaning to be attached to the words “in respect of.” This has been canvassed extensively in a number of recent judgments and I do not propose to rehearse them. There was a characteristically thorough and rigorous analysis of these authorities by Bright J in Magomedov. I agree with him that the conclusion to be drawn is that there is no bright line to guide our faltering footsteps and that it is an open question whether, given the positioning of subparagraph (c) in Part 6.33(2B), the paragraph was intended to go beyond claims which are themselves covered by the jurisdiction provision. See the comments of Foxton J in JP Morgan International Finance Limited v Werealize.com Limited [2025] EWHC 1842 (Comm) to the effect that the transposition of the provision from the practice direction could support the argument that it does go further, even if that was not necessarily the intention of the rules committee.

Speaking for myself, I would have thought that in order for a claim to be “in respect of” a relevant contract, the contract must, as a bare minimum, be foundational in the sense that the claimant has to plead and prove it in order to establish its claim. Be that as it may, it is still incontrovertible that the contract itself must be one containing a provision that the English court shall have jurisdiction to hear the claim asserted by the claimant against the intended defendant. Furthermore, as I have held, it must be a contract to which the intended defendant is a party.

There was also debate before me as to whether there is a separate merits threshold under Part 6.33 as there is under the practice direction where permission is required. In the latter situation, the claimant has to show a serious issue on the merits, in other words a real and not a merely fanciful prospect of success. As will become apparent, I have not found it necessary to reach a concluded view on whether such a threshold applies, as I have concluded that the claimants do not succeed in showing a good arguable case for the application of Part 6.33 (2B) to the unamended claims in any event. The court may well, however, have to grapple with the existence or otherwise of such a merits test if and when the amendment application comes to be considered.

For what it is worth, my own view is that there is no separate merits threshold under Part 6.33(2B). The logic of allowing claims to be served out of the jurisdiction without permission is that they do not need permission. Necessarily, therefore, the court is not concerned with the merits, which are left for the substantive hearing.

By the same logic, there should equally be no merits threshold when seeking an extension of time to serve such a claim, although I can see the possibility of a contrary argument in that situation since the claimant is there seeking the court’s indulgence. That said, when it comes to the question of a challenge under Part 11, it must clearly be open to a defendant to argue that the merits of the claim are so weak that the court should exercise its discretion not to assert jurisdiction over it. I do not believe that I was saying anything different in my comments in Naftiran Intertrade v GL Greenland Ltd [2022] EWHC 896 (Comm).