Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB)

• Published date: 14 September 2023
• Law Firm: Gatehouse Chambers
• Author: Wendy Parker

Pantheon International Advisors Ltd v Co-Diagnostics, Inc [2023] EWHC 1984 (KB)

CPR 6.33(2B)(b) was introduced in April 2021 as part of the EU exit arrangements consequent upon Brexit. Unlike the perhaps more familiar provisions for service out under CPR r 6.36, which requires permission from the court, CPR 6.33(2B)(b) provides for service of a claim form on a defendant out of the jurisdiction without permission of the court where "for each claim made against the defendant to be served and included in the claim form a contract contains a term to the effect that the court shall have jurisdiction to determine that claim."

Wendy Parker acted for the successful claimant in Pantheon International Advisors Ltd v Co-Diagnostics.

Background

The Claimant was an English-registered company which had entered into a written agreement with the Defendant Utah corporation in February 2016 pursuant to which the Claimant would assist the Defendant in raising capital in the UK markets. The Claimant's case was that services had been provided under the 2016 contract but not paid for, before the 2016 contract was superseded by a new agreement in 2018. Both contracts allegedly contained exclusive jurisdiction clauses in favour of the English courts and governing law clauses in favour of English law.

On 2 June 2021, the Claimant issued a Claim Form pursuant to the alleged 2018 contract, and subsequently filed a Notice at court for service out where permission is not required. The Claim Form and Amended Particulars of Claim, which included contract claims, allegations of unjust enrichment, and a claim in quantum merit for the services provided but not paid for, were then served on the Defendant out of the jurisdiction on 10 September 2021.

The Defendant filed an acknowledgement of service contesting the jurisdiction; and on 4 March 2022, issued the present application seeking a declaration that the English court has no jurisdiction to try the claims, and to set aside service of the Claim Form and Amended Particulars of Claim.

The Test for Service Out Where Permission is Not Required

The parties were in agreement as to the applicable legal principles. They accepted that cases decided in respect of the now-obsolete former Practice Direction 6B paragraph 3.1(6)(d) remained relevant; and that, to meet the gateway, the Claimant had to satisfy the 'good arguable case' test as restated in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Goldman Sachs International v Novo Banco SA...