Sharab v HRH Prince Al-Waleed Bin Talal Bin Abdal-Aziz Al-Saud

On an application to serve a claim form out of the jurisdiction, the claimant must show a good arguable case that the claim falls within a relevant jurisdictional gateway, a reasonable prospect of success, and that England and Wales is clearly the appropriate forum. These requirements are distinct. Strength on the merits or an English connection cannot compensate for weakness on forum conveniens.

A claim for restitution or quantum meruit, advanced on the basis that no contract exists, is not a claim in respect of a contract where there is no related contract. A contract made by an agent may fall within the gateway for a contract made within the jurisdiction, whether or not the agent trades or resides here. The court retained permission to serve out because the alleged contract and breach had a good arguable connection with England and Wales, and England and Wales was the clearly appropriate forum.

Mrs Daad Sharab claimed US$10 million commission from the defendant, a Saudi Arabian national, in connection with her alleged agency services concerning the sale of an Airbus aircraft to Libya. She relied on an oral commission agreement allegedly made in London, later varied in Libya, and on subsequent agreements concerning payment. In the alternative, she claimed on a quantum meruit basis.

The defendant disputed jurisdiction and applied under CPR Part 11 for an order declaring that the court had no jurisdiction, alternatively that Libya was the appropriate forum. The court considered whether the claim fell within the contractual jurisdictional gateways, whether it had a reasonable prospect of success, and whether England and Wales was clearly the appropriate forum.

1. Jurisdictional gateways. The claimant established a good arguable case that the claim was in respect of a contract made within the jurisdiction under CPR 6.20(5)(a). The wording covered a contract made by an agent on behalf of a foreign defendant, whether or not the agent traded or resided within England and Wales. On the evidence, there was also a good arguable case that the agent had actual authority, that the contract was made and varied as alleged, and that a later telephone call amounted to ratification. The court made no final determination on those issues.
2. A quantum meruit claim advanced on the alternative hypothesis that no contract existed did not fall within CPR 6.20(5)(a). There was no contract to which that claim could be said to be in respect. A restitutionary claim might fall within CPR 6.20(15), but the claimant did not rely on that gateway. The claimant failed to establish the gateway in CPR 6.20(5)(b), because there was no good arguable case that the agent traded or resided within the jurisdiction.
3. The claimant failed, at that stage, to show a good arguable case that the alleged contract was governed by English law under CPR 6.20(5)(c). Applying article 4 of the Rome Convention, the characteristic performance was that of the agent. The evidence indicated Jordan, rather than London, as the claimant’s habitual residence. The court confined its conclusion to the failure to satisfy the jurisdictional standard and did not finally determine the applicable law.
4. There was a good arguable case that non-payment constituted a breach within the jurisdiction under CPR 6.20(6). The alleged August 2003 conversation provided a good arguable case that London was agreed as the place of payment, alternatively that payment was to be made at a place nominated by the claimant and London was nominated. The original requests for payment from Jordan did not alter that conclusion.
5. The reasonable-prospect-of-success requirement was a lower threshold than good arguable case and was satisfied because the claimant had a good arguable case on the existence and breach of the alleged contract as varied.
6. Forum conveniens. The burden was on the claimant to show that England and Wales was clearly the appropriate forum. The court applied the interests-of-the-parties and ends-of-justice test. Relevant factors included the nature of the dispute, legal and practical issues, witnesses, expense, local knowledge, connecting factors and enforceability. The fact that the aircraft sale had substantial Libyan connections did not make Libya the natural forum because the alleged commission contract and the aircraft sale agreements were separate transactions. The dispute was a relatively straightforward contractual dispute, London was convenient for the principal participants, and enforcement of an English judgment in England was a material consideration.
7. The Prince’s application under CPR Part 11 was dismissed. Permission to serve the claim form out of the jurisdiction was retained.