Court Of Appeal Gives Guidance On How To Apply Jurisdiction Test Laid Down By Supreme Court

The Court of Appeal has considered how the test for establishing English jurisdiction should be applied where there is a dispute over the facts relevant to jurisdiction: Kaefer Aislamientos SA de CV v AMS Mexico SA de CV [2019] EWCA Civ 10.

Where a claimant needs permission to serve proceedings out of the jurisdiction, the claimant has to establish that a relevant jurisdiction gateway applies, eg on the basis that the defendant has committed a breach of contract within the jurisdiction. The same is true where the claimant asserts an entitlement to serve out of the jurisdiction without the court's permission under an article of the recast Brussels Regulation, eg on the basis of a jurisdiction clause in favour of the English courts.

The test has in the past been expressed as the need to establish a "good arguable case" as to the application of the relevant gateway/article. This test was intended to be straightforward, but has become, in the Court of Appeal's words, "befuddled by 'glosses', glosses upon glosses, 'explications' and 'reformulations'."

The Supreme Court, in two cases in 2018, sought to clarify the test. However, how it applies in practice has not been entirely clear. The Court of Appeal in the present case has sought to interpret each limb of the test. It has, in particular, given its view that the court must consider the relative merits of the parties' arguments, rather than merely requiring the claimant to surmount a set evidential threshold. There remains however plenty of scope for further debate on the Supreme Court's formulation and how it applies in any particular case.

Background

The case concerned a claim for sums alleged to be due under a contract to carry out works to an oil rig.

The claimant sued four defendants, AMS Mexico, AMS, AT1 and Ezion, relying on an English exclusive jurisdiction clause in the works contract. The contract on its face was entered into by AMS Mexico and AMS but the claimants alleged that those companies had entered into it on behalf of AT1 and/or Ezion as undisclosed principals. If that was the case, the contract, including its jurisdiction clause, bound all of the defendants.

The judge at first instance held that the English court did not have jurisdiction over AT1 and Ezion. The claimant appealed to the Court of Appeal.

Decision

The court (Lord Justice Green giving the main judgment) took as its starting point two recent Supreme Court decisions which had considered the test for service out of...