In Daad Sharab v His Royal Highness Prince Al-Waleed Bin Talal Bin Abdal-Aziz-Al-Saud [2009] EWCA Civ 353 the appellant (the Defendant) appealed against the lower court’s refusal of his application for a declaration that the English court had no jurisdiction to hear the claim brought against him by the respondent Claimant. The Claimant was based in Jordan, Libya and London and lived in London for approximately three months of each year. The Claimant ran a consultancy company that effected introductions for clients in Libya. The dispute arose in relation to the sale of a plane belonging to the Defendant to the President of Libya. The Claimant alleged that a meeting was held in London with a Mr Alaeddin whom she understood to be the Defendant’s representative at which meeting it was agreed that should she sell the aircraft, the Defendant would pay her a substantial commission which was later increased following a telephone conversation. The aircraft was sold and the Defendant refused to pay the commission. The Defendant denied that Mr Alaeddin was his representative or that he was a party to a contract with the Claimant. The Claimant brought proceedings against the Defendant and sought and was granted permission to serve on the Defendant outside of the jurisdiction. The Defendant applied for a declaration that the English courts had no jurisdiction to hear the claim. This was refused, the judge finding that the Claimant had a good arguable case falling within CPR 6.36 and PD6B (formerly 6.20(5) and (6)), that the Claimant had a reasonable prospect of success and that England was the appropriate forum in which to hear the claim.

On appeal, the Defendant argued that: the judge had incorrectly found that the contract had been made in the jurisdiction; the judge had incorrectly found that the contract had been breached in England; and that the appropriate forum was Libya.. The Defendant also offered an undertaking that he would submit to the jurisdiction of the Libyan courts.

The Court of Appeal rejected the Defendant’s arguments. It ruled that enough had been agreed in London to create a legally binding contract and that there was a good arguable case that Mr Alaeddin had authority to act on the Defendant’s behalf. The negotiations which subsequently took place in Libya varied the terms of the contract rather than creating a new agreement. The fact that the parties had not formally agreed that the commission would be paid in London was not fatal to the Claimant’s overall case. It could not be said that the connection between the claim and England was tenuous or accidental. The judge in the lower court had given good reasons for discounting the languages spoken by the parties and the locations of the witnesses as supporting a finding that Libya was the appropriate forum. The Defendant had offered no undertaking in the lower court that he would submit to the jurisdiction of the Libyan courts and the judge was entitled to take this into account when making his decision. The attempt by the Defendant to offer an undertaking to submit to the jurisdiction of the Libyan courts on appeal was rejected by the Court of Appeal who ruled that the Defendant’s position had influenced the decision of the judge in the lower court. To accept the undertaking now would result in the Court of Appeal considering a different set of facts to that considered in the lower court.