Summary

The forum of England and Wales was the forum in which a case could most suitably be tried in the interests of the parties and the ends of justice and it had been appropriate for a judge to grant ex parte permission for a claim form to be served outside the jurisdiction.

Facts

The applicant Saudi Arabian national (P) applied for a declaration that the court had no jurisdiction to determine a claim brought against him by the respondent Jordanian national (S). S had been granted ex parte permission to serve on P outside the jurisdiction her claim for unpaid commission of US$10 million allegedly payable for her services as P's agent in relation to the sale of an aircraft by P for US$120 million to the President of Libya. S's case was that she had entered into a contract with P in the United Kingdom to act as P's agent by facilitating a successful sale of the aircraft and that she would receive as part of her payment any sum over US$110 million that was realised through the sale. S gave an account of having agreed the alleged contract during a telephone conversation with P whilst she was in the UK and through a series of meetings that she had with an agent of P's in the UK. In support of her case S relied on various documents as to her dealings with P over a number of years. P contended that S's claim did not satisfy the criteria for the grant of permission for service out of the jurisdiction as (1) S did not have a good arguable case that her claim fell within one of the types of claim listed under CPR r.6.20; (2) it did not have a reasonable prospect of success; (3) the appropriate forum for the trial of her claim was not clearly England and Wales, but Libya.

Held

On the evidence, S had a good arguable case that her claim was within the types in CPR r.6.20(5)(a) and CPR r.6.20(6). On the material before the court S had a good arguable case that P's purported agent had P's actual authority to make the alleged contract, that the alleged contract was made and that the breach occurred within the jurisdiction. In particular, the documents relied on by P describing prior dealings between S and P amounted to circumstantial evidence that provided credence to S's case, whilst in contrast, P had provided little beyond a general denial. (2) It followed from the finding that S had a good arguable case that her claim had a reasonable prospect of success. (3) The forum preferred by P was not one in which a court might be able to exercise jurisdiction over him as of right, and as P was a foreigner in both jurisdictions the exercise of jurisdiction over P by a Libyan court would be just as exorbitant as the exercise of jurisdiction over him by an English court, Owners of the Las Mercedes v Owners of the Abidin Daver (1984) AC 398 HL applied. Moreover, it was not suggested that it had not been reasonable for S to have started proceedings in the jurisdiction or that it was unreasonable for her not to have started proceedings in Libya. It followed that the initiative having been taken by S to start proceedings in the jurisdiction and to incur the expense of doing so, it was relevant to ask rhetorically what was achieved that was consistent with the interests of the parties and the ends of justice in acceding to P's application and thereby depriving S of the advantage of that initiative, and resulting in her having wasted time and costs to date. The answer to that question was nothing. Accordingly, the appropriate forum was England and Wales.

Application refused