Summary

There was no equivalent in the Civil Procedure Rules 1998 to the express requirement in the Rules of the Supreme Court O.18 r.8(1)(b) that it was necessary to plead foreign law. However, it would be inconsistent with Part 16 r.16.4(1)(a) of the 1998 Rules and with the overriding objective to deliberately omit to plead relevant principles of foreign law. A party advancing a claim based on a proposition of foreign law had to refer to the system of law on which he relied.

Facts

The applicant (L) applied to extend the time for making an application under CPR Part 11 to dispute the jurisdiction of the court to try a Part 20 claim issued by the defendant (M) and sought a declaration that the court had no jurisdiction. L had been employed by M, which was part of a media and marketing group in the Middle East. L indirectly held shares in a company (G) that was incorporated in England. Two agreements were entered into between G and M and executed by L on behalf of M. Subsequently W discovered that L had interests in companies other than M and L resigned on agreed terms. M then terminated the two agreements with G. G claimed that M wrongfully repudiated the agreements and sought damages. M claimed that the agreements had been concluded by the relevant individuals in breach of their duty to M and should be set aside. M made a counterclaim against G to that effect and a Part 20 claim against L. M's solicitors wrote to L asking for an address for service and also whether he disputed the jurisdiction of an English court. L did not reply and M made several unsuccessful attempts to serve him. Finally M obtained an order for service by an alternative method. L obtained an extension of time for service of his defence. L filed an acknowledgment of service indicating that he intended to defend the claim but not that he intended to dispute the jurisdiction. After the expiry of time allowed by Part 11 r.11 of the Rules for challenging jurisdiction L wrote to M stating that he intended to apply for the service to be set aside and that the proceedings in this jurisdiction be stayed or set aside. M refused to discontinue the proceedings. In the circumstances the issues that arose were whether (i) L had submitted to the jurisdiction of this court; and if so (ii) Saudi Arabia was the more appropriate forum for the trial of the claim against L.

Held

(1) The test to be applied was an objective one and what had to be determined was whether the only possible explanation for the conduct relied on was an intention on the part of the defendant to have the case tried in England, Spargos Mining NL v Atlantic Capital Corp Times, December 11, 1995 QBD and Sage v Double A Hydraulics Ltd Times, April 2, 1992 CA (Civ Div) applied. Assuming that both orders for service had been improperly made so that L had grounds to challenge the jurisdiction the solicitors would have had little time to determine whether to contest the decision. In cases of doubt the solicitor should have ticked box three on the acknowledgement of service form to obtain an extension of time under r.11(4) and refrained from entering on the merits of the claim. However L adopted neither of these courses and to any objective observer his conduct was consistent with an acceptance of the jurisdiction of the court. A defendant who intended to challenge jurisdiction did not seek an extension of time for his defence, did not advance a defence on the merits in the form of the settlements agreements and did not threaten to strike out the claim if the claimant refused to discontinue it. Therefore L had submitted to the jurisdiction before his solicitor's letter was sent and before the extension of time was issued. (2) M was the defendant to proceedings brought against it by G in England and it was bound to defend those claims in England. There was no claim in Saudi Arabia against any Part 20 defendant corresponding to the Part 20 claims made against them in England. All the defendants to the Part 20 proceedings except L and S were domiciled in England. Accordingly the stay envisaged by L would give rise to a split trial and would risk conflicting judgments, which the court was always anxious to avoid. It was accepted that the resources available to L were less than those of M but that would be so whether or not the stay was granted. In addition there was no evidence that to litigate in England would cause problems to L so as to debar any defence on his behalf. For all these reasons the forum conveniens was England.

Application refused