In Novus Aviation Ltd v Onur Air Tasimacilik AS – Butterworths Law Direct 27.2.09 the Court of Appeal held that the judge had been correct to authorise service out of the jurisdiction. The Claimant was a Bahamian company which carried on business dealing with and trading in commercial aircraft. It had offices in Switzerland and Lebanon. Although the Defendant company and its principal witnesses were in Turkey, the dispute had no factual connection with Turkey. In all the circumstances, the judge had not treated the governing law of the putative contract or the use of English in documents and in negotiations as in any sense conclusive. He had been entitled to come to the conclusion that England was the appropriate forum.
An appellant had to show that the judge had misdirected himself in principle or had taken into account matters which he should not have done, or had failed to take account of matters which he should have done, or that he was plainly wrong.
It was fanciful to suggest that the judge had overlooked the Spiliada. It was not necessary for him to spell the principles out. He had referred several times to the need to establish the appropriate forum, and had made a direct reference to Spiliada. There had been no error of principle in his approach. In the instant case, the judge had been fully aware of the principles in Spiliada. In all the circumstances, the judge had not treated the governing law of the putative contract or the use of English in the documents and in the negotiations as in any sense conclusive. He had been entitled to come to the conclusion that the Claimant had shown clearly that England was the appropriate forum, and there was no error of principle or other ground for interfering with the judge's exercise of discretion.