The defendant applied to set aside an order giving leave to serve abroad in a contractual claim where the contract contained a non-exclusive jurisdiction clause.
Held: summarised the effect of such a clause, as the law emerged from extensive citations of authority: ‘The fact that the parties have freely negotiated a contract providing for the non-exclusive jurisdiction of the English courts and English law creates a strong prima facie case that the English jurisdiction is the correct one. In such circumstances it is appropriate to approach the matter as though the claimant has founded jurisdiction here as of right even though the clause is non exclusive . . The general rule is that the parties will be held to their contractual choice of English jurisdiction unless there are overwhelming or at least very strong reasons for departing from this rule . . It is not appropriate to embark upon a standard Spilliada balancing exercise [in those circumstances]. The defendant has to point to some factor which it could not have foreseen at the time the contract was concluded. Even if there is an unforeseeable factor or a party can point to some other reason which, in the interests of justice, points to another forum, this does not automatically lead to the conclusion that the court should exercise its jurisdiction to release a party from its contractual bargain; . . in particular the fact that the defendant has, or is about to institute proceedings in another jurisdiction not contemplated by the non-exclusive jurisdiction clause is not a strong or compelling reason to relieve the party from his bargain, notwithstanding the undesirability of parallel proceedings.’
Judges:
Mrs Justice Gloster DBE
Citations:
[2006] EWHC 47 (Comm)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction
Updated: 25 May 2022; Ref: scu.238453