BP Plc v AON Ltd & Anor

A non-exclusive jurisdiction clause does not make the nominated forum exclusive, nor does it impose the stringent test applicable to an exclusive jurisdiction clause or to parallel proceedings already pending in the nominated court. The court must apply a flexible forum non conveniens assessment. Where the nominated forum is appropriate, the claimant must show a clear, substantial balance of justice and fairness in favour of the alternative forum, based substantially on matters not foreseeable when the contract was made.

A time-barred new claim may be added only within the jurisdiction conferred by Limitation Act 1980, section 35 and CPR 17.4. The relevant facts must previously have been in issue in a claim involving the party against whom the amendment is sought. A late amendment may also be refused for delay and disruptive case-management consequences.

BP sought permission, shortly before trial, to re-amend its particulars of claim by adding Aon Risk Services of Texas Inc as a defendant to an indemnity claim under clause 12 of a service agreement. The proposed claim concerned liabilities arising from alleged failures to procure insurance cover.

The service agreement was governed by Illinois law and contained a non-exclusive Illinois jurisdiction clause. Aon Texas opposed service out, relied on possible limitation under Illinois law, and argued that the amendment was outside CPR 17.4. The court considered forum conveniens, limitation, jurisdiction to permit the amendment, and case-management discretion.

1. Jurisdiction and service out. Aon Texas was a proper party under CPR 6.20(3), and the proposed claim raised a serious issue to be tried. The English court was not, however, clearly the appropriate forum.
2. Non-exclusive jurisdiction clause. Clause 13 constituted an enforceable non-exclusive jurisdiction clause. It prevented a party sued in Illinois from challenging that jurisdiction, but it did not prevent proceedings elsewhere. It created a prima facie indication that Illinois was an appropriate forum, without making Illinois contractually exclusive.
3. The court therefore applied the flexible Spiliada forum non conveniens test. Because no Illinois proceedings were pending, BP did not have to establish the stronger case required where an exclusive clause applied or where proceedings were already pending in the nominated forum. It had to show a clear balance of justice and fairness favouring London: a balance substantially based on matters not foreseeable when the agreement was made and substantially more than a fine balance.
4. The overlap between the English negligence proceedings and the proposed indemnity claim, the risk of duplicated evidence, and the possibility of inconsistent findings were given reduced weight because BP’s contractual arrangement with only one Aon company and its litigation strategy had foreseeably created the multiplicity problem. Aon Texas’s proposed undertakings would substantially remove the risks of duplication and inconsistency. Illinois was particularly appropriate for limitation issues governed by Illinois law.
5. Limitation and amendment. Under Limitation Act 1980, section 35(5), and CPR 17.4(2), the new claim had to arise from facts already in issue in a claim for which a remedy had been claimed. The statutory purpose was to protect a defendant from having to investigate facts outside the scope of its existing involvement. A claim against Aon Texas could not rely on facts pleaded in a different claim against Aon London where Aon Texas had not previously been required to investigate them.
6. The evidence disclosed a reasonably arguable case that at least part of the proposed claim was time-barred under Illinois law. The court therefore had no jurisdiction to permit the amendment to that extent. Following the approach in Welsh Development Agency v Redpath Dorman Long Ltd, the limitation issue was not finally determined on the amendment application; permission was refused unless BP could show that no reasonably arguable limitation case existed.
7. Even if jurisdiction existed, permission would have been refused. BP gave no convincing explanation for the delay, and the amendment would materially disrupt an already complex trial. The application to add the clause 12 claim against Aon Texas was dismissed.

First-instance decision on an application to amend the particulars of claim and to serve a foreign defendant out of the jurisdiction. No appellate history is stated in the judgment.