Trumann Investment Group Ltd v Societe Generale SA & Ors

Service out of the jurisdiction may be permitted where an existing claim raises a real issue and the foreign defendant is a necessary or proper party to connected proceedings. The concept of a proper party is broad and may extend to claims arising from common facts or the same series of transactions. The court may also permit service where the claim concerns a contract satisfying the applicable jurisdictional gateways. The forum conveniens inquiry requires consideration of the litigation as a whole. Where related proceedings are already advanced in England, common factual issues should ordinarily be resolved by one court rather than duplicated abroad.

The claimant brought proceedings concerning alleged breaches of fiduciary duty, transfers of assets from an English company and related claims involving a company incorporated in the Turkish Republic of Northern Cyprus. The Fifth Defendant was joined and served out of the jurisdiction pursuant to an order made by Master Moncaster.

It applied to set aside that order and challenged the jurisdiction of the English court. The application raised abuse of process, the construction of CPR 6.20, the joinder provisions in CPR 19.2, contractual gateways for service out, and whether England and Wales was the proper forum.

1. Application dismissed. The Fifth Defendant’s application to set aside service and challenge jurisdiction was rejected.
2. The court declined to treat the application as an abuse of process. Although the same arguments had previously been advanced before Master Moncaster, that hearing had contemplated a subsequent application by the Fifth Defendant. The application was therefore heard on its merits.
3. Under CPR 6.20(3), the relevant question is whether there is an existing claim raising a real issue which it is reasonable for the court to try, and whether the person to be served is a necessary or proper party. The Court of Appeal’s decision in United Film v Chabria [2001] 2 All E R (Comm) 865 was binding. It treated CPR 6.20(3) as having, in effect, the same breadth as CPR 19.2(2). A party may be proper where the claims involve common questions of fact or arise from the same series of transactions. The narrower approach suggested by Youell v Kara Mara Shipping [2000] 2 Lloyd’s Reports 102 was not accepted.
4. The proprietary and tracing claims against the Fifth Defendant were part and parcel of the existing proceedings. The recipient of assets allegedly transferred in breach of fiduciary duty was a necessary party if effective relief, including an account or delivery up, was to be obtained.
5. The additional claims also fell within CPR 6.20(5), since the pleaded contractual relationship arguably involved an agent trading within the jurisdiction, English law, or a jurisdiction clause. CPR 6.20(3) and CPR 6.20(5) were alternative gateways.
6. England and Wales was the proper forum under CPR 6.21(2A). The English proceedings were well advanced, the existing defendants had submitted to the jurisdiction, and the related foreign proceedings created an artificial and inefficient duplication of factual adjudication.

Consequential orders were to be dealt with subsequently.