Court Considers Evidentiary Standard For Service Out Of The Jurisdiction Where Permission Not Required

• Published date: 10 January 2024
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright Hong Kong
• Author: Andrew Judkins

In Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB), the High Court considered the evidentiary standard a party must satisfy when seeking to rely on CPR 6.33(2B)(b) as the basis for serving a claim form out of the jurisdiction. This gateway for service, introduced in the CPR post-Brexit, permits service of a claim form out of the jurisdiction without the court's permission where the claim falls within a valid jurisdiction agreement in favour of the English courts. A claimant must demonstrate there is a good arguable case that the contract containing the jurisdiction clause exists, that the clause is valid and binding and the dispute falls within the scope of the jurisdiction clause.

Background

In 2016, the Claimant, an English company, entered into an agreement with the Defendant, a Utah company, for the Claimant to assist the Defendant with raising capital on the UK equity markets (the 2016 Agreement). There was a subsequent agreement in 2018 between the parties which was signed only by the Claimant (the 2018 Agreement). Both agreements were governed by English law and provided for the exclusive jurisdiction of the English courts.

In June 2021, the Claimant issued English proceedings for breach of contract relating to unpaid fees under the 2018 Agreement and a quantum meruit claim (for a reasonable sum in respect of services supplied to the Defendant). In September 2021, the Claimant purported to serve the claim form on the Defendant in the USA without seeking the courts' permission, relying on CPR 6.33(2B)(b).

The Defendant had issued separate proceedings in Utah in May 2021 and entered a default judgment against the Claimant in November 2021. In March 2022, the Defendant made an application to the English court seeking a declaration that the English court had no jurisdiction and to set aside the Claim Form and Amended Particulars of Claim, in addition to setting aside their service. The Claimant made a cross-application to re-amend its Amended Particulars of Claim to additionally plead reliance upon the 2016 Contract. In the alternative, the Claimant sought an order for retrospective permission to serve out of the jurisdiction, or an order dispensing with service. One of the issues for the judge to determine was therefore whether CPR 6.33(2B)(b) was satisfied on the facts.

Parties' Arguments

The Claimant argued that the English court had jurisdiction pursuant to the 2018 Agreement (which it claimed superseded the 2016...