Ophthalmic Innovations International (UK) Ltd v Ophthalmic Innovations International Incorporated

Permission to serve proceedings out of the jurisdiction requires the claimant to establish three matters: a cause of action with a reasonable prospect of success, a good arguable case within a jurisdictional gateway, and that England is clearly the appropriate forum. The court must exercise particular care because service out asserts extra-territorial jurisdiction. Material irregularities in the application will ordinarily be cured only exceptionally. Overlapping foreign proceedings between the same or related parties are ordinarily material and should be disclosed. Under Article 4 of the Rome Convention, the presumption favouring the country of the party performing the characteristic obligation is displaced only where the circumstances clearly show a closer connection with another country.

The claimant, an English distributor of ophthalmic lenses, sought declarations that an indemnification agreement executed by the defendant, a Delaware company based in California, covered claims arising from earlier sales of lenses in the United Kingdom. Related proceedings between the parties were already pending in California concerning the defendant’s liability to indemnify the claimant for third-party claims.

The defendant applied to set aside permission to serve the proceedings out of the jurisdiction and to set aside service. The issues included non-disclosure, compliance with the procedural requirements, the prospects of the claim, the applicable law, and whether England was clearly the appropriate forum.

1. Application allowed. Permission to serve out and service of the claim form were set aside.
2. The claimant had to establish three matters: a cause of action with a reasonable prospect of success under CPR 6.21(1)(b), a good arguable case that the claim fell within a head of CPR 6.20, and that England was the appropriate forum under CPR 6.21(2A) (para 38).
3. The reasonable-prospect test was unlikely to differ materially from the serious-question-to-be-tried test formerly applied under RSC Order 11. The good arguable case standard remained flexible according to the issue (paras 39–40).
4. Service out is an assertion of extra-territorial jurisdiction. The procedural rules therefore require careful compliance, and irregularities should be cured only in exceptional cases. An applicant on a without-notice application must give full disclosure. Although it need not anticipate every argument, omission of overlapping foreign proceedings may itself justify setting aside permission (paras 43–45).
5. The claimant had failed adequately to disclose the Californian proceedings, which involved the same parties and substantially concerned indemnification. It had also failed to provide the required statement that the claim had a reasonable prospect of success. The defects were material because the claim did not, on the evidence before the court, raise a triable issue (paras 50–52).
6. Under section 2 of the Contracts (Applicable Law) Act 1990 and Article 4 of the Rome Convention, the characteristic performance was the defendant’s indemnity. The presumption therefore favoured Californian law. The evidence did not clearly demonstrate a closer connection with England. The possible place of payment and the likely location of third-party claims were insufficient, particularly given the form of the agreement and its connection with a distribution agreement governed by Californian law (para 53).
7. England was not shown to be clearly the appropriate forum. The Californian proceedings, due to be tried in 2005, raised the closely related indemnity issue and involved the same likely witnesses. The interests of convenience and justice favoured resolving the matter in California (para 54).

First-instance decision. No prior appellate decision is stated in the judgment.