In Euromark Ltd v. Smash Enterprises Pty Ltd [2013] EWHC 1627, the claimant argued that the strength of its case on the merits was sufficient to justify overriding the exclusive jurisdiction clause in the contract between the parties, as a trial in England would be ‘in the interests of justice’.

The Court disagreed, finding that it would not be wrong or unfair to enforce the exclusive jurisdiction clause — notwithstanding the position on the merits, there were still arguments to be made about causation and quantum, and the parties had agreed that these would be heard in Australia. The Court did not consider the fact that the claimant was relying on the defendant’s repudiation of the underlying contract to be relevant. The Court ruled that repudiation is simply a form of contractual breach, which may be foreseen by commercial parties, and in seeking to invoke the jurisdiction of the English Courts in the face of an exclusive jurisdiction provision, a claimant must be able to point to a factor which was not foreseeable when the contract was made.