A recent High Court decision (Coward -v- Ambrosiadou [2019] EWHC 2105 (Comm)) reviewed the jurisdictional gateways for commencing proceedings in England and Wales against a non-EU based defendant. Depending upon the outcome of the Brexit negotiations, jurisdictional considerations may become a more regular consideration in any litigation.

Background

The English court’s jurisdiction over defendants domiciled outside the EU is governed by the common law regime, specifically CPR 6.36, 6.37 and Practice Direction (PD) 6B. In particular, permission of the English court is required to serve an English claim form on such a defendant outside the jurisdiction. Permission will only be granted if three conditions are met, namely:

  • Good arguable case - there is a good arguable case that the claim is covered by one of the ‘gateways’ in PD 6B.3.1 (see below)
  • Serious issue to be tried - there is a serious issue to be tried on the erits of the claim
  • Appropriate forum - England and Wales is clearly or distinctly the appropriate forum for the trial of the dispute, and in all of the circumstances the court should exercise its discretion to permit service of the proceedings out of the jurisdiction

The gateways referred to in PD 6B (above) include, in respect of contractual disputes, that:

  • Contract made in the jurisdiction - the claim is made in respect of a contract where the contract was made within the jurisdiction (paragraph 3.1(6)(a))
  • Contract governed by English law – the claim is made in respect of a contract where the contract is governed by English law (paragraph 3.1(6)(c))
  • English jurisdiction clause – the claim is made in respect of a contract where the contract contains a term to the effect tthat the court shall have jurisdiction to determine any claim in respect of the contract (paragraph 3.1(6)(d))

An application for permission to serve out of the jurisdiction is made at the outset of the case before the court has access to all the evidence and is made by the claimant alone. In Brownlie -v- Four Seasons Holdings Inc [2017] UKSC 80, Lord Sumption explained what was required to be proved a good arguable case and access the jurisdictional gateways:

  • The claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway
  • If there is an issue of fact about it or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so
  • The nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway, if there is a plausible (albeit contested) evidential basis for it

Turning then to the facts of the present case:

Facts

The claimant, Dr Coward, and the defendant, Ms Ambrosiadou, were married for over 25 years until 2010. During the course of their marriage, they had started an investment management business (IKOS) using trading algorithms that subsequently became very successful. They had lived and worked in Bahrain until 1992, returning then to the UK, but in 2004 the defendant moved to Greece and the claimant to Cyprus in 2006. The business was conducted through a number of sophisticated entities, many offshore Dr Coward’s case was that in 1992 the couple had made an overarching agreement orally to divide the profits sof their business equally between them (Equal Split Agreement). Later, he alleged, this agreement was modified to a 40/40/20 share (40/40/20 Agreement), with the smaller share going to their son.

In 2009, Ms Ambrosiadou filed for divorce in Greece and her husband left the business. Since then, the parties had been involved in litigation against each other in various jurisdictions - England, Cyprus, Greece, Monaco and the British Virgin Islands – the English proceedings related to intellectual property issues (IP proceedings). In 2017, Dr Coward commenced the current proceedings, claiming that Ms Ambrosiadou had breached her duties under the profit share agreements to act honestly and in good faith, to disclose profits sand to ensure that Dr Coward received his share. Dr Coward obtained permission to serve his proceedings out of the jurisdiction on the basis that his claim was based on the qual Split Agreement (as varied by the 40/40/20 Agreement) that had been made in England, and/or governed by English law and/or contained an implied jurisdiction clause in favour of the English courts, so three of the procedural gateway heads identified above.

Ms Ambrosiadou challenged the English courts’ jurisdiction and sought the dismissal of the claim. She argued that Dr Coward could not satisfy the ‘good arguable case’ test as explained in the Brownlie case (above) in relation to any of the gateways in PD 6B. Furthermore, she alleged that Dr Coward could not show that England was clearly the appropriate forum, and his claim did not disclose a serious issue to be tried.

Decision

The judge ruled in the ex-wife’s favour. It was held that in deciding whether there was a plausible evidential basis for a case based on alleged oral agreements, it was relevant to have regard to the courts’ general approach to determining the existence of such agreements, though bearing in mind that these cases generally represented the approach taken at trial rather than earlier, and rarely dealt with alleged contracts between married people. In the judge’s view, Dr Coward had neither the better of the argument nor a plausible (albeit contested) evidential basis for his allegation that the parties had entered into the Equal Split Agreement. The following facts were found to be relevant:

  • The account of events that Dr Coward gave in the IP proceedings was markedly different tfrom his present case
  • His case in proceedings in Cyprus was also significantly different
  • There was no contemporaneous document evidencing the making or existence of the Equal Split Agreement
  • There was no evidence of performance of the Equal Split Agreement
  • The inherent probabilities pointed against, rather than in favour of, the Equal Split Agreement

It is interesting that the court held that it was not sufficient for Dr Coward to say that these were matters that could and should ultimately be properly tested at trial. In order to found jurisdiction on the basis of the Equal Split Agreement, the court had to, at a minimum, be persuaded that there was a plausible (even if contested) evidential basis for finding the agreement to have been entered into. In the judge’s view, no such basis existed. What was considered was the fact that the parties and most of the relevant documents were located abroad, so that pointed to England not being the appropriate forum. There was no sustainable basis for the English court having jurisdiction in this matter under any of the PD 6B gateways.

The decision is therefore an important reminder of the issues involved when suing a foreign (non-EU) party and the need to investigate and prepare the groundwork, paying attention to consistency with any other related proceedings, for a contested jurisdictional challenge down the road.